Jan 27, 2023
Google Faces Rare Jury Trial in DOJ Bet on Public’s Tech Unease
(Bloomberg) -- The Justice Department’s newest suit against Alphabet Inc.’s Google includes a surprising request: a jury trial.
Federal antitrust lawyers typically opt to present their cases directly to a federal judge. But in its second suit against Google, the Justice Department asks that everyday people determine whether the company’s advertising technology business violates the law.
It’s a risky move, given the complexity of the subject matter. But it could help the Justice Department sidestep the increasingly conservative judiciary, where judges have aligned with large corporations for decades and ruled against it in a string of cases last year.
“If you pull the wrong judge, the law is so defendant friendly,” said Sam Weinstein, an antitrust law professor at Cardozo Law School.
It’s possible that a jury for the Google case could allow the government to tap into the growing mainstream animosity toward the biggest tech companies. But it will be key for the Justice Department to make its case clearly and concisely in order to win over the jurors.
“There’s a real risk that the jury just doesn’t understand how these pieces fit together,” said Dan McCuaig, a partner at Cohen Milstein Sellers & Toll PLLC who served in the DOJ antitrust division for twelve years.
Beyond the jury trial demand, the Justice Department made a series of strategic decisions to improve its chances of winning. The case was filed in the Eastern District of Virginia, which is known for handling intricate business cases – particularly related to patents – more quickly than other court systems. The local rules are designed to expedite the process, and judges in the district pride themselves on moving cases quickly.
The Eastern District of Virginia’s familiarity with areas of the law like patents could mean the jurors are better prepared to handle the case, and an informed judge could make it harder for Google to delay the case for years.
“With respect to this particular case, the DOJ’s biggest challenge is time,” said Gary Reback, a veteran lawyer who helped to spearhead efforts that led to the government’s epic antitrust case against Microsoft Corp. in the 1990s. “If you’re on the other side of a monopolization case, you delay until the government staff turns over twice, they’ve got whole new people and they don’t remember who does what and where the bodies are buried.”
Overall, the case has a good shot at succeeding, legal experts said. It relies on traditional antitrust theories that hew closely to the government’s winning case against Microsoft .
“From a theory point of view, this case is not an earthquake or a seismic shift,” said Salil Mehra, a law professor at Temple University.
Jeffrey Jacobovitz, who heads the antitrust and competition group for Arnall Golden Gregory LLP, said the case is a test of whether an antitrust law passed in 1890 can be used to “take on the behavior of high-tech companies.”
He said DOJ’s choice to request a jury trial could be an advantage if they can simplify the issues. “It’s an aggressive case, and when you’re seeking to break up part of a company it’s not the easiest case to bring,” Jacobovitz said.
Going to a jury “generally means if you prevail, your damages that you allege will be more significant,” he added.
But even if the jury and judge agree that Google violated the law, the biggest fight is likely to erupt around what the remedy should look like. The Justice Department is calling for Google to spin off its DoubleClick ad technology platform entirely.
“They are shooting for the moon because it would be an effective remedy and it’s not reject-out-of-hand crazy,” said McCuaig. Whether it’s attainable will depend on the judge, he added.
The Justice Department is unlikely to accept a deal from Google. The search giant offered a potential settlement last year in an effort to forestall a suit, but was rebuffed, Bloomberg reported.
The company could try again, citing some of the changes that it must make to its ad tech platforms to comply with the European Union’s new tough regulations on digital gatekeepers. But the Biden administration has made clear they aren’t amenable to settlements, said Weinstein.
The Biden administration is “much more aggressive” than previous antitrust regimes, said Weinstein, who served in the Justice Department’s antitrust division for eight years under Obama. “The administration has been saying we’re not going to settle cases.”
Any decision is a long way off. The case is likely to take years to wound its way through the courts, even if it was filed in Virginia.
Reback said Google’s dominance in online advertising would have been much easier to address if the government had intervened years ago. After the Federal Trade Commission in 2007 allowed Google to buy DoubleClick, it could be challenging to disentangle Google from its online ads business.
“There was an academic paper years ago when Google was putting its ad tech monopoly together explaining what was happening and what the results would be,” said Reback. “We sent the paper to the government, but they ignored it. How much easier it would have been to stop this from happening than trying to fix it after the fact.”
--With assistance from Anna Edgerton.
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