The Department of Justice cannot try its digital advertising case against Google in front of a jury, a federal court in Virginia has ruled.
A $2,289,751 cheque Google delivered the government last month has nullified the Antitrust Division’s request for damages on behalf of agencies that allegedly overpaid Google for ad space.
Judge Leonie Brinkema ruled from the bench on Friday that the DOJ had not adequately explained the possibility for collecting additional damages beyond what Google hand-delivered.
The US District Court for the Eastern District of Virginia said it would be improper for the government to ask the jury to reach a different calculation without the assistance of economists.
The fate of the DOJ’s ad tech case now rests in the hands of Judge Brinkema.
The Antitrust Division filed its second Section 2 case against Google in January 2023 – including a highly unusual demand for a jury trial based on alleged harm suffered by federal agencies that bought advertising space from Google.
The Seventh Amendment guarantees the right to a jury trial for plaintiffs when the amount in controversy exceeds $20.
Last month, Google asked Judge Brinkema to dismiss the damages claim and strike the government’s request for a jury trial. Google said the hand-delivered cashier’s cheque rendered the damages claim futile – also mooting the potential of a jury trial, since only judges can hand down injunctive relief.
The company also cited interpretations of English common law that suggest a government entity can never bring claims before a jury.
The Antitrust Division rebuffed these arguments, saying the multimillion dollar cheque did not cover the total possibility of damages it could recover. Google’s cheque also comes with a refusal to admit liability, the DOJ said.
Giving credence to Google’s argument that the ad tech case is too complex for jurors would perversely “permit a monopolist to escape a jury by devising a scheme of market exclusion that happens to be complicated”, the government added.
During a hearing on Friday, Judge Brinkema said the DOJ’s expert reports did not make clear what additional money it could possibly recoup at trial without more concrete estimates.
“That’s not the type of evidence that supports an actual damages claim,” she said.
DOJ attorney Julia Wood countered that Google was trying, without the government’s request, to take away the division’s right to have the case tried in front of a jury.
Wood said that a jury may conclude the federal government deserves a higher damages amount based on documents presented at trial.
She said the government’s estimates are conservative as it is difficult to assess the magnitude of harm from Google’s “egregious” conduct spanning more than a decade.
The dollar figure might be “trivial” to Google but that money is crucial to the budgets of those federal agencies, Wood said.
Karen Dunn, counsel to Google at Paul Weiss Rifkind Wharton & Garrison, said antitrust damages are never calculated by documents alone and that it was unreasonable for the government to ask a jury to do that.
“The whole thing is really strange,” Dunn said.
She argued the government had probably spent significantly more money on expert fees arguing for damages than it would ever actually recoup.
Judge Brinkema said the amount in damages the DOJ is requesting is pretty small in terms of the federal government and the real issue in this case is injunctive relief.
“You’re getting your day in court,” Judge Brinkema said to the DOJ.
The hearing concluded on Friday.
See more on United States v Google.
Counsel to Google
Freshfields Bruckhaus Deringer
Eric Mahr, Tyler Garrett, Andrew Ewalt, Julie Elmer and Lauren Kaplin in Washington, DC, and Jeanette Bayoumi in New York
Paul Weiss Rifkind Wharton & Garrison
Karen Dunn, Jeannie Rhee, William Isaacson, Joseph Bial, Amy Mauser, Martha Goodman, Bryon Becker and Erica Spevack in Washington, DC, Meredith Dearborn in San Francisco and Erin Morgan in New York
Axinn Veltrop & Harkrider
Koren Wong Ervin and Bradley Justus in Washington, DC, and Daniel Bitton in San Francisco
Law Offices of Craig Reilly
Craig Reilly in Alexandria
Counsel to the Department of Justice
Jonathan Kanter, Doha Mekki, Hetal Doshi, Ryan Danks, Daniel Guarnera, Timothy Longman, Julia Tarver Wood, Katelyn Barry, Craig Briskin, Katherine Clemons Aaron Teitelbaum, Nicholas Cheolas, David Geiger, Jacklin Chou Lem, Arshia Najafi, Brent Nakamura, G Charles Nierlich, Chase Pritchett, Andrew Schupanitz, David Teslicko and Michael Wolin in Washington, DC
US Attorney’s Office for the Eastern District of Virginia
Jessica Aber and Gerard Mene in Alexandria
Counsel to the Commonwealth of Virginia
Andrew Ferguson, Steven Popps, Tyler Henry and Kevin Gallagher in Richmond
Counsel to the State of California
Paula Blizzard, Brian Wong and Henry Cornillie in San Francisco
Counsel to the State of Colorado
Bryn Williams, Jan Zavislan and Steve Kaufmann in Denver
Counsel to the State of Connecticut
Nicole Demers in Hartford
Counsel to the State of New Jersey
Yale Leber in Trenton
Counsel to the State of New York
Elinor Hoffman and Morgan Feder in New York
Counsel to the State of Rhode Island
Lloyd Ocean in Providence
Counsel to the State of Tennessee
J David McDowell and Scott Bowers in Nashville
