AP Photo/Stephanie Scarbrough
But the real victory for Google was avoiding a jury.
Juries are less predictable than judges, and may not be sympathetic to a massive tech company.
“There’s a more robust public sentiment against big tech now than there maybe has ever been,” Rebecca Allensworth, a professor of antitrust law at Vanderbilt University, told BI.
The Justice Department “virtually never” brings antitrust cases to juries, Allensworth told BI. But in this case, they wanted one. The government lawyers complained to Brinkema, the judge, arguing the fifth count should stand and the damages ought to be decided by a jury. The amount Google gave them in the check was wrong, they said, citing court documents that they said showed the damages should be calculated differently.
In the end, Brinkema sided with Google. The $2,289,751 figure came from math done by the Justice Department’s own experts, she noted in a ruling. And the fact it was a cashier’s check, issued by Wells Fargo, gave the Justice Department no excuse for refusing the money to keep the issue open, she said. (The precise check amount was initially redacted in court documents, but Brinkema later made it public.)
“It’s an absolute ‘here’s the money,'” she said at a June 7 hearing. “If they could have given you a wheelbarrow of cash, it would be the same thing.”
The trial, she said, would be sans jury.
A Google representative directed BI to an earlier statement the company issued in response to the judge’s decision.
“DOJ’s contrived damages claim has disintegrated,” the company said in a statement at the time. “We’re glad the Court ruled that this case will be tried by a judge.”
Representatives for the Justice Department didn’t respond to a request for comment.
At the end of June 7 hearing, Brinkema applauded Google and the Justice Department for their clever legal arguments.
“I want to commend counsel. Your arguments are great,” she said. “I’m looking forward to this trial because the quality of the lawyering has been excellent.”