Google is intent on avoiding a jury trial in its antitrust case, paying the US government for estimated damages in the hopes of getting a bench trial.

Google is facing an antitrust trial over its advertising business, with the DOJ saying the company unfairly dominates the online advertising industry. The DOJ has been joined by a coalition of states.

Interestingly, despite most antitrust cases being tried as bench trials, the DOJ is seeking a jury trial in Google’s case. As Google points out in a filing, courtesy of Reuters, the DOJ admits that the trial will deal with topics that are beyond the technical knowledge of most jurors.

Yet in this case, the Department of Justice (“DOJ”) is asking the Court for a jury trial, breaking with all historical precedent, even though the relief it seeks is overwhelmingly equitable and even though its allegations are, in DOJ’s words, “highly technical, often abstract, and outside the everyday knowledge of most prospective jurors.”

A Matter of Precedent

Google goes on to say that there is no known precedent for the US seeking a jury trial in this type of case.

Google is aware of no case in American history where a civil suit brought by the United States pressing only antitrust claims was tried to a jury. The unprecedented nature of DOJ’s jury demand weighs heavily against extending the Seventh Amendment jury trial right to the government here.

To address the issue, Google has given the US government a cashier’s check for the entire sum of monetary damages the government is seeking.

To prevent the tail from wagging the dog, Google has tendered the United States a cashier’s check for the full monetary damages it seeks.

The company cites a recent decision by the Sixth Circuit panel to support its actions.

As a unanimous Sixth Circuit panel recently held, the tender of complete relief requires dismissal of a damages claim as moot because there is no longer any case or controversy as to damages, a prerequisite for Article III jurisdiction….The party urging mootness in the Sixth Circuit was none other than the United States, which argued emphatically that the tender of complete relief moots a damages claim, and the United States assured the court that the same mootness rule would apply if the parties’ positions were reversed.

Google Says It Wants to Resolve the Overall Issue

Despite wanting to avoid a jury trial, the company says it wants to resolve the issues once and for all in court.

Google continues to dispute liability and welcomes a full resolution by this Court of all remaining claims in the Complaint. While the tender moots the claim for damages, questions of liability and equitable relief on the United States’ remaining claims should be fully considered and decided by the Court, either through dispositive motion practice or at trial.

Google Faces An Uphill Battle

Google faces a number of significant challenges winning its case, challenges that Microsoft did not face in its landmark antitrust case, a case many experts point to for comparison.

• The political landscape is much different, with lawmakers on both sides of the aisle wary of Big Tech in general, and Google in particular.
• There is a growing willingness to tackle antitrust issues and force companies to be more open, work better with competitors, and give consumers more choice.
• In a separate antitrust case around its search practices, company has drawn scrutiny for paying Apple billions a year to be the default search engine on iOS and macOS, establishing a pattern of leveraging its advantage to lock out competitors.
• In the company’s search case, Google’s own VP of Finance, Michael Roszak, likened the company to an “illicit business,” a statement that does the company no favors.
• Public perception has turned against Big Tech, with many individuals becoming more concerned with privacy and Big Tech’s ever-growing power and influence.

In view of these challenges, it’s not surprising that Google wants a bench trial, instead of a jury trial. As the DOJ admits, the scope of the trial deals with matters that are “highly technical, often abstract, and outside the everyday knowledge of most prospective jurors.” Add to that the public’s growing distrust of tech companies, and a jury trial is worst-case scenario for the search giant.

If the company is successful getting a bench trial, the company will gain the benefit of an experienced judge deciding the case, rather than rolling the dice with jurors.