January 27, 2023
- DOJ seeks a jury trial to sidestep conservative judges
- Legal experts say the legal theory echoes the Microsoft case
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.
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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.
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