• by Wendy Davis  @wendyndavis, May 17, 2024

In an attempt to avoid a jury trial, Google has tendered a cashier's check to the U.S. government for monetary damages resulting from alleged antitrust violations.

The company said in court papers filed Thursday with U.S. District Court Judge Leonie Brinkema that the check was for triple the amount of damages the government sought and interest, but the exact dollar figure was blacked out of the version available to the public.

Google -- which disputes that it violated antitrust laws -- contends that the Department of Justice's request for a jury trial is now moot, essentially arguing that there's no justification for a jury to decide on a damage award if the federal government has already received the maximum amount.

Google additionally says the Justice Department isn't entitled to a jury trial because the federal agencies that advertised through Google didn't "directly" purchase ads from the company, but instead purchased ads through agencies. The company noted last month in a separate filing that the Supreme Court previously said entities that “purchase indirectly or through intermediaries” aren't entitled to monetary damages in antitrust cases.

A company spokesperson said Friday that the Justice Department's claim for damages was “manufactured” in order to "secure a jury trial in a case even they describe as ‘highly technical’ and ‘outside the everyday knowledge of most prospective jurors.'”

"Google continues to dispute liability and welcomes a full resolution by this court," the company wrote. "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's tactic comes in a battle dating to January 2023, when the Department of Justice and a group of states alleged that the company used anticompetitive tactics to monopolize digital display advertising.

Google “corrupted legitimate competition in the ad tech industry by engaging in a systematic campaign to seize control of the wide swath of high-tech tools used by publishers, advertisers, and brokers, to facilitate digital advertising,” the complaint alleged. The plaintiffs sought monetary damages and a court order that would require Google to unwind its 2008 acquisition of DoubleClick and 2011 purchase of AdMeld.

Google's attempt to dodge a jury trial comes several months after a jury in California sided against the company in a Epic Games' antitrust lawsuit over Play store policies. In that case, the jury found that Google created or maintained an illegal monopoly in two “markets” -- Android app distribution, and Android in-app billing.

That jury verdict came more than two years after a different federal judge -- U.S. District Court Judge Yvonne Gonzalez Rogers -- ruled after a non-jury trial that Epic failed to prove similar claims against Apple.

It's not clear whether Brinkema will agree that Google's tender of a cashier's check moots the government's request for a jury trial.

In 2016, the Supreme Court considered -- but didn't resolve -- a similar question in a dispute involving the agency Campbell-Ewald, which was sued for allegedly sending sending unsolicited text messages to a consumer as part of an ad campaign for the Navy.

In that case, Campbell-Ewald attempted to end the litigation by attempting to pay $1,500 to Jose Gomez -- the consumer who brought the case and hoped to serve as class representative. The most that Gomez could have obtained as an individual was $1,500.

Campbell-Ewald argued that its settlement offer rendered Gomez's claim moot.

The Supreme Court rejected the agency's argument 6-3, ruling that an “unaccepted” offer to pay damages did not moot the case.

The opinion, authored by Justice Ruth Bader Ginsburg, left open whether the case would have been mooted had Gomez accepted Campbell-Ewald's payment.

Last month, Google urged Brinkema to award it summary judgment on the antitrust charges -- meaning a verdict in its favor based on evidence that was developed in preparation for trial.

“It’s simply not an antitrust violation to develop a product that is particularly (or even uniquely) suited to serving customers’ needs,” Google argued in a written motion.

Google also claimed that competition in the ad-tech space has grown since 2009, when real-time bidding emerged.

“The number of ad exchanges alone grew from fewer than 10 ad exchanges in 2010 to more than 100 today. And Google, for all of its technological innovation in this space, has never had more than 15% of digital display advertising spend (with that share falling) and has never raised prices,” the company wrote.

That motion is still pending.