For everyone who doesn't understand what's going on: Google has written a check that they claim covers the monetary damages involved in the case, and has conceded that amount. That would take damages off the table for this case. With no monetary damages, Google thinks that the state has no right to demand a jury trial.
They have also said in the article that the amount that Google claims the DOJ can prove is less than $1 million, so there's a chance this is a very small check from Google's perspective.
Polling the jury pool is not an uncommon practice in high-stakes trials, and I assume that Google has run a poll of the jury pool and found them hostile enough that they are willing to concede to 7-8 figures to avoid a jury getting involved in the decision whether to break Google up.
In the US courts system, juries are used to determine questions of fact, but if the facts are not in question, a judge can apply the law and there's no need for a jury.
Agreeing that there's no question of facts speeds the whole process along quite a bit. There's no need for witness testimony, it can all be managed in hearings and with breifings.
It's possible to avoid a jury trial in a civil case by removing from dispute the issues which would give the other side the right to demand a jury trial.
Each individual legal rule isn’t formulated according to a free-ranging consideration of what’s “beneficial to society.” It would be impossible to administer such a system of rules based on ad hoc policy considerations.
The rule here, the Seventh Amendment, confers a right to a jury trial when one would have been required under English common law at the time the seventh amendment was written. Roughly speaking, in the English system, cases involving monetary damages were handled in courts of law with juries. Cases that involved injunctive relief (orders to do or not do something) were handled in courts of equity with decisions made by judges.
It's only resolved if the court agrees that the amount tendered is the limit of the monetary judgement it would legally be possible for the government to secure at trial, and that such a tender does remove the issue from the case (both of which are disputed points) in which case the damages issues would be resolved and removed from the case, and the rest of the case would go forward, but as a bench trial, not a jury trial.
I'd like to add the perspective here that only the US "makes routine use of jury trials in a wide variety of non-criminal cases" [Wikipedia], so most of the world believes that justice can take place (at least in some circumstances) without a jury
> Another legal scholar, Herbert Hovenkamp of the University of Pennsylvania’s law school, called Google's move "smart" in a post on X. “Juries are bad at deciding technical cases, and further they do not have the authority to order a breakup,” he wrote.
Would a jury have the authority to break Google up?
A jury would definitely be able to set the damages number, and have some sway on whether Google gets broken up. If a jury sets a huge number, the DOJ will be empowered to go for a breakup and the judge will be swayed toward agreeing.
Incidentally, I have been somewhat involved in a few court cases, and the general advice I have been told is to explain [extremely technical topic] at a 3rd grade level if you want a jury to understand.
By the way, for people who want to argue that people are getting stupider, apparently it was a 6th grade level 30 years ago.
This is actually true. Kids in each generation are apparently more comfortable with technology, which naturally accelerates their awareness and knowledge. I can attest to it anecdotally - my kid is more attuned to the real world than I was at a much higher grade.
To some degree, I believe this. However, if you have to use mathematical logic (or actual math), the level of reasoning to use is far more simplistic at a third grade level than a 1990s sixth grade level. The same thing goes with vocabulary and grammar.
It may be possible that cases are also getting more complex involving more esoteric subjects.
Financial instruments and technology have changed a bit over time. Previously there may have been better analogues to compare things without stretching reality too much.
In the defense of the people, there has been an explosion of useless information. Just look at the number of settings on an Android phone or Chrome browser or in your Google account. Human Brains dont grow at the same rate year on year.
I'm not sure how Google an claim they have covered the monetary damages, when in this case a jury is required to decide what the monetary damages actually are. I don't think they will be allowed to opt-out of risking punitive damages or higher actual damages discovered during trial. I'm kind of surprised they tried it given the headlines will obviously be negative.
> Google asserted that its check, which it said covered its alleged overcharges for online ads, allows it to sidestep a jury trial whether or not the government takes it.
wtf. Since when does cutting a cheque allow you to directly dictate how legal process works?
Instead of paying a speeding fine this is like going to the judge and saying here is 100 bucks to pretend the speed limit is 10 mph higher and then we hold the trial under those conditions.
Gotta admire the balls on the google lawyers though.
To use the speeding ticket analogy, this is the equivalent of just paying the fine. The government can't sue you over an unpaid speeding ticket if you pay the ticket.
The reason why this might work is the Seventh Amendment, which guarantees a jury in federal lawsuits so long as the amount disputed is over $20.
> In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved
If Google says "yep, we're not disputing that we owe the federal govt $1 million, here's a cheque for that amount", their argument is that the "value in controversy" is now $0. Since $0 is less than $20, that clause doesn't apply.
I'd like to hear what an actual lawyer has to say on the odds this'll work, though.
I wondered about that $20 amount, and sure enough, from that page:
The amendment additionally guarantees a minimum of six members for a jury in a civil trial. The amendment's twenty-dollar threshold has not been the subject of much scholarly or judicial writing and still remains applicable despite the inflation that has occurred since the late 18th century ($20 in 1800 is equivalent to $359 in 2023
> To use the speeding ticket analogy, this is the equivalent of just paying the fine.
It’s just not. You don’t get to set your own damages amount in advance of a trial and you certainly don’t get dictate random conditions on modifying legal process to government when you do.
> Instead of paying a speeding fine this is like going to the judge and saying here is 100 bucks to pretend the speed limit is 10 mph higher and then we hold the trial under those conditions.
Uh isn't that how it works? You plead no contest and pay a fine and don't even have to see the judge?
Boeing paid money to make a criminal fraud prosecution go away. Then the law firm representing Boeing hired the DoJ lawyer who negotiated the deal, which cut the victims out of the negotiation, possibly in contravention of victims' rights.
Boeing then failed to comply with the agreement and allegedly crimed again within the term of their deferred prosecution agreement in the door plug incident. This all running concurrently with the outgoing CEO getting a $33M bonus.
> The U.S. Supreme Court ruled in a 2016 case that an offer for “complete relief” did not wipe out a class-action claim. But Google argued its payment is different, because it submitted an actual check and not merely an offer.
Checks aren't cash, right? They can bounce when you cash them. So how is it different?
>The Justice Department filed the case last year with Virginia and other states, alleging Google was stifling competition for advertising technology. The government has said Google should be forced to sell its ad manager suite.
> The company said the government has said the case is “highly technical” and “outside the everyday knowledge of most prospective jurors.”
Ah yes, these matters are far too complex for the lowly civilian jury to assess. I mean, can they even invert a binary tree?
Much easier to just do away with this whole 'trial' thing. No need to bother the simpletons by entering all these complicated documents (evidence) into the public record.
I assume if this does get a jury trial, the cheque will affect the selection pool. Since anyone who's heard about google doing this would probably take it poorly.
People and small entities do this all the time. A supplier refuses to refund you for a defective product. You file suit in small claims court and serve them. Suddenly you receive a refund! Your dead beat ex is seven months behind on child support so you get a lawyer to threaten them with a custody battle. Poof, check arrives.
This is the same principle, and it's not even a legal one. If you think you're going to lose (at anything), you want to do so as soon as possible to minimize costs and risks. Works for chess and wars too.
I don't think your comparison holds, because in your examples the forcing of the payment is the point. In this case the payments aren't the point; stopping the alleged anti-competitive behavior is. The payments are just for provable collateral damages inflicted along the way.
If the monetary damages aren't the point, why did the DoJ make (according to the article) a last minute addition to the case for monetary damages?
If you're right and forcing the payment of damages isn't the point, that seems to add credence to the idea that the monetary damages claim is just about manufacturing a pretext for a jury trial. Why is DoJ gaming the system a good thing?
The system says that decisions involving monetary damages are made by juries, and decisions involving injunctive relief (ordering a company to do something or not do something) are made by judges. If you tack on a claim for monetary damages when your that’s just a tail wagging the dog, when your real focus is the injunctive relief, then that is gaming the system.
Or, to put it differently, the government invoked a damages claim that’s tangential to its case to get in front of a jury on a technicality. And Google invoked a different technicality to get out from a jury trial. Live by the sword die by the sword.
And whether any of this helps or hurts the government’s chances against Google is entirely irrelevant.
> The system says that decisions involving monetary damages are made by juries, and decisions involving injunctive relief (ordering a company to do something or not do something) are made by judges.
That’s not correct. The judge cannot overturn a jury verdict because he disagrees that it’s the best decision. He can only do so where the evidence is such that no reasonable jury could have reached that decision. It’s a standard that’s very deferential to the jury.
In this particular case, the decision of whether there was an antitrust violation at all would be made by the jury if damages are involved, but by the judge if no damages are involved. Even though the judge will make the final decision on equitable remedies (whether to break up Google), the jury’s verdict is binding on anything the judge subsequently does. The judge isn’t allowed to reach a decision that contradicts the jury on any issue that the jury explicitly or implicitly decided.
>He can only do so where the evidence is such that no reasonable jury could have reached that decision.
Who defines this "reasonable jury" thing? And why do judges get to opine on it?
If the jury shits on your case, it's called nullification, and it's working as designed. If the jury rakes you over a bed of coals, you have one safety valve in that the judge can tamp down on things to mitigate cruel and otherwise unusual awards as far as I understand it, but even with that, there's usually a statutory aspect to things I thought. E.g. ...fines no greater than type language.
In theory, its an “objective standard"; in practice, that mrans the highest court hearing the case ultimately decides.
> And why do judges get to opine on it?
Because its a matter of whether a s a matter of law the vedict is justified. (It's also a due process issue and equal protection issue, preventing a party from beinf deprived of property without basis in law or under standards not applied to other similarly situated parties.)
> If the jury shits on your case, it's called nullification
Nullification exists solely in criminal trials, and only in the direction of acquittals. It doesn't apply for criminal convictions or any civil cases result.
> If the jury rakes you over a bed of coals, you have one safety valve in that the judge can tamp down on things to mitigate cruel and otherwise unusual awards as far as I understand it,
Your understanding is incorrect. The protection against cruel and unusual punishments is a protection against the law providing punishments which would meet that standard, whether in general or as specifically applied to you. It is separate and in addition to protection that any detriment the government imposes on you must be both justified by the law and a consistent with its equal application.
I mean, yes, I agree that it is obvious. But then that's you simultanously claiming that the DoJ is trying to "force a jury trial" with a pointless claim of monetary damages on one hand, and that they're not trying to game the system on the other. Those don't seem very compatible. It looks way more as if the DoJ knows they're not entitled to a jury trial, would like one for tactical reasons, and spent a lot of time and effort in fabricating a pretext.
(The filing linked to from the article claims that this kind of trial has never gone to a jury in the past, so it really is not some kind of standard operating procedure.)
> But then that's you simultanously claiming that the DoJ is trying to "force a jury trial" with a pointless claim of monetary damages on one hand
It's not pointless, they're trying to stop the alleged anti-competitive behavior. And they want a jury trial to aid them in that effort.
> and that they're not trying to game the system on the other.
We're going in circles here. Like I said: forcing a jury trial isn't "gaming" the system. It's an attempt to prevent the usual workarounds from working.
So, your argument here is that it is acceptable and moral for the government to apply trumped up charges to create a more favorable environment for a preferred verdict, but not acceptable or moral for the defendant to do the same?
And in this case, you are saying that government doing weird things to get a preferred ruling is moral, but a vigorous defense is not. I wasn't requiring a generalization. It's still a terrible concept in specific. Holding defense to a higher standard than the plaintiff is bad.
I'm sorry, I just realized that was actually a miscommunication on my part. I phrased it extremely poorly in retrospect (your reading was entirely reasonable), but what I had in mind when I wrote "avoiding a jury trial" wasn't Google's avoidance of the jury trial in this case, but the government's avoidance of a jury trial in general. (i.e. the constant willingness to have settlements/plea bargains/etc. before a case ever goes to a jury trial.)
in the examples, the payment arrives not because it is "forced" - in US law it wouldn't be "forced" until much, much later. The payment arrives because the alternative is worse (by some calculation). Exactly as for this case.
Alternatively, since Google values their illegal monopoly at $1M, can the court just pay that as damages (just in case) to the investors, skip the trial, and just break the company up?
That seems more than fair: The illegal scheme in dispute is apparently only worth $1M on Google’s side, but causing mid to high billions in externalities.
This is kind of poetic justice. Accidental damage is one thing but Any time your whole business model relies on creating damage and then paying it off at whatever discounted rate your lawyers have negotiated for you, then you really are saying that’s the value of your company. If corporations want to play those games, we should take them at their word and let it cut both ways.
This isn't a bribe, and there's no lobbying. This is a sort of weird form of "tactical retreat" in the lawsuit. By conceding on the damages the government is demanding (or at least the ones Google thinks the DOJ can prove), Google is taking the issue of damages off the table, and they believe that this takes the demand for a jury trial off the table. They are taking the loss to avoid having a jury trial.
Your comment did not in any way refute the claim that this would be considered a bribe in other countries. It's an exchange of money for a favorable (to them) change in the legal process, which seems like a reasonable definition to me.
It's not a bribe, because the government claimed that Google owed this amount of money, and Google paid it. If this was a check to prevent Government action, you might consider it a bribe. If it had been paid to an individual, you might consider it a bribe. In this case, the law says that there can only be a trial by jury if there is financial damage. With Google conceding the amount claimed and paying it, there is no financial damage, and thus there can not be a trial by jury. The money is not being spent to purchase a trial without jury, it's a fine being paid to change the rules of the encounter.
They claimed Google owed damages and the check is for some amount related to either what they asked for or the damages Google thinks they can prove. If the judge agrees (or the DOJ, which is a lot less likely), this takes damages off the table. From there, they can see if the judge will take a jury trial off the table.
Wait, in every single jurisdiction, when Alice wants something and Bob can do it, bribery is when Alice pays Charlie, who happens to be representing Bob for the transaction, to get the thing done. The canonical example of bribery is that a supplier (Alice) gives a company manager (Charlie) a nice watch in order to close a deal with the company (Bob).
In this case, Alice (Google) is paying Bob (the DoJ) with the expectation that Charlie (the judge in the case) will be forced to do something in response to the payment. Bob is in court with Alice to (ostensibly) get this payment as well as a few other things. Bob and Charlie here have no relationship. Nothing about this is bribery.
If this is a bribe, then paying your parking tickets is a bribe. If this is a bribe, buying something from an electronics store with the expectation that you can download the user manual from the manufacturer's website is a bribe.
Paying your parking ticket does not change the legal process - The govt sends you a letter saying you must pay the fine or challenge in court, and you pay it.
What Google is doing is changing the legal process - The govt wants a jury trial, Google is saying "here's some money, now no more jury trial." It seems more than a bit different, at least to my non-lawyer eyes.
No, paying your ticket very much does change the legal process. The government may be free to seek other sanctions in court if you go there, and by paying up and giving in to the first demand, you preclude them from that opportunity. You change the legal process by giving up the money and not contesting the fine.
Every action you take in a legal process is a "change" of that legal process. At issue here is whether the plaintiff/claimant can demand a jury trial. Juries decide facts, and judges decide the law. By giving up the money, Google is effectively saying they won't be contesting the facts of the case. That means no need for a jury.
Bribery usually implies that the payment is illegal and not part of the regular judicial process (otherwise, "paying damages to the government as part of a settlement agreement" would be bribery in all cases). And usually it enriches a particular government agency or individual.
In this case the payment is part of the judicial process, and achieves its goals even if it isn't accepted. So it clearly isn't a bribe.
My feeling is that they'd rather buy the parking lot management company than pay their parking fine. With a cash reserve of $108bn (1) then it's all just FU money at this point, it really doesn't matter - there's no consequences for their wrongdoing.
(This is more of a cynic, generalised comment about Google and companies in the same position abusing their power than directly specific to this case. And yes, I was around from the start when they "did no evil"; it's just depressing.)
I suppose with enough funds that legal maneuvering is available to every single citizen, and that is what this is really about: equality of opportunity! Right? /s just in case....
> "Google asserted that its check, which it said covered its alleged overcharges for online ads, allows it to sidestep a jury trial whether or not the government takes it."
In other antritrust litigation Google has argued that people love the company, that is why they use it and that is why it has remained #1. If this is true, then why is Google so afraid of a jury. Would it not be comprised of Google supporters.
That Google just thinks paying people off will solve every one of its problems, whether its competitors or plaintiffs, perhaps will play into the government's narrative.
They have also said in the article that the amount that Google claims the DOJ can prove is less than $1 million, so there's a chance this is a very small check from Google's perspective.
Polling the jury pool is not an uncommon practice in high-stakes trials, and I assume that Google has run a poll of the jury pool and found them hostile enough that they are willing to concede to 7-8 figures to avoid a jury getting involved in the decision whether to break Google up.
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