The Department of Justice recently sued Google for conduct relating to its ad tech services, accusing the search giant of unlawful monopolization. In an unusual move, the DOJ demanded a jury trial, which are extremely rare in government civil antitrust cases. This decision creates both risks and opportunities for the parties. The complexity of the facts and the law in civil antitrust cases can make it difficult for a nonexpert jury to do its job, posing strategic challenges for the lawyers trying the case. Samuel Weinstein outlines the potential benefits and pitfalls of a jury trial, as well as the broader policy implications of jury demands in civil antitrust cases.
After years of growth mostly unhindered by government interference, Big Tech is now squarely in the crosshairs of federal and state antitrust enforcers. In just the past three years, the Department of Justice, Federal Trade Commission, and state attorneys general have sued Amazon, Facebook, and Google for antitrust violations, and indications are that Apple could be next.
In January, the Antitrust Division of the Department of Justice (DOJ) brought the latest of these suits, its second monopolization case against Google. While the DOJ’s 2020 Google complaint focused on the company’s alleged monopoly in search, this new suit challenges Google’s dominance in what is known as “ad tech”—the systems and software that connect publishers selling internet ad space to advertisers who want to buy that space.
This suit makes claims similar to those brought by a coalition of states, led by Texas, against Google’s conduct in the ad tech space. Unlike that case, however, and unlike all the other recent cases federal and state governments have brought against Big Tech, the DOJ’s latest complaint includes a demand for a jury trial. This jury demand is extremely unusual—government civil antitrust claims are almost always tried to a judge—and it raises a host of strategic challenges for the parties as well as broader policy issues about the role of juries in complex antitrust matters.
The Decision To Seek a Jury Trial
Why are jury trials so rare in civil antitrust cases brought by the government? The primary reason is that most government civil antitrust cases seek only injunctive relief—blocking consummation of a merger, requiring divestitures, or prohibiting specific conduct. These claims, when brought on their own, do not trigger the right to a jury trial. The Clayton Act authorizes the DOJ to seek treble damages in situations where the federal government is the victim of an antitrust violation, but the DOJ has seldom exercised this authority. The few times that the DOJ has brought treble damages actions have all been in Section 1 collusion cases. During the Trump administration, then-Assistant Attorney General Makan Delrahim stated the Division’s intention to pursue treble damages in more cases: “[g]oing forward, the Division will exercise [its] authority to seek compensation for taxpayers when the government has been the victim of an antitrust violation.” This policy has continued in the Biden administration, paving the way for the damages demand in the Google complaint. And it created the opportunity for the DOJ to request a jury trial in an appropriate case.
The common wisdom is that juries in antitrust cases tend to favor the “little guy” and disfavor the corporate giant. The DOJ certainly can tell a David and Goliath story here, with Google as the bully dominating the ad tech sector, acquiring or suppressing any competitive threats and pushing advertisers around. Trying the case to a jury might also give the DOJ an advantage relative to a bench trial because federal judges arguably are more likely to strictly apply a body of Sherman Act Section 2 case law that is, on the whole, defendant friendly. But juries are also unpredictable, and it is difficult to anticipate where their sentiments may lie. Many lay jurors might have a generally favorable view of Google, whose best-known product, its search engine, remains extremely popular. These jurors might also have little sympathy for the advertisers and publishers whom the DOJ alleges are the parties directly harmed by Google’s conduct. And there are likely to be people in the jury pool who are suspicious of the government and its lawyers. All this is to say that, while the DOJ’s strategic choice to demand a jury trial might give the government an edge, that is certainly not guaranteed.
Cutting Through the Complexity
Of course, this case may never reach a jury. Many antitrust matters are disposed of on motions to dismiss or summary judgment. But should the government’s claims survive those challenges, the parties will confront the tricky strategic issues jury trials raise in antitrust cases. Civil antitrust litigation tends to be complex. Fact-finders must learn the often intricate details of industries they may know little or nothing about. They must also understand the nuances of antitrust economics and grasp the complicated legal rules that underpin enforcement of the Sherman and Clayton Acts.
The DOJ’s ad tech case against Google heightens these challenges. In large part this is because the industry background is extremely complicated, difficult even for experts to fully understand. Unlike Google search, a product almost all potential jury members are likely familiar with, ad tech is something most lay people know very little about. The ways that advertisers and publishers interact in this market are complex, to say the least. The DOJ’s complaint attempts to cut through this complexity by including several graphic visualizations of the industry’s structure. Indeed, the complaint uses the same visual depiction of the “ad tech stack” over a dozen times, a useful aid for the reader trying to understand how the parts fit together, but also a reminder of just how complicated the facts are in this case.
Further, much of Google’s alleged anticompetitive conduct is challenging to describe and understand. To be sure, the concept of acquiring a competitor instead of trying to best them on the merits, as the DOJ contends was the case when Google bought DoubleClick, is straightforward. But other conduct, like “dynamic allocation bidding,” “dynamic revenue sharing,” and using “open bidding” to combat the competitive threat posed by “header bidding,” is more difficult to explain and comprehend.
In light of the complexity of the ad tech industry and Google’s alleged anticompetitive conduct, the parties will need to find ways to communicate their stories clearly to the jury. For the DOJ, the best approach may be to simplify the anticompetitive picture its lawyers paint during the trial. While the DOJ will need to explain the intricacies of the harmful conduct it alleges, prosecutors are likely to hammer away at the DOJ’s big-picture claims: Google eliminated threats to its ad tech dominance through acquisitions rather than competition and it took steps to force advertisers and publishers to stick with more expensive or inferior Google services rather than turn to competitors.
This is a story a jury can understand, even if jurors struggle with some of the underlying facts. And the DOJ can point to some damaging language in Google documents to bolster these claims. Google has made a point of restricting what its employees say in emails, however, in hopes of avoiding having its documents used against it in antitrust cases. Some harmful statements slipped through the cracks, but there do not appear to be any documents as evocative as Microsoft’s threat to “cut off Netscape’s air supply” or Mark Zuckerberg’s “it’s better to buy than to compete.”
Google’s lawyers will face a similar challenge—what is the big-picture story they can tell the jury that will make the complex details less important? One story Google’s attorneys are almost certain to tell is that when they had the chance, the antitrust enforcement agencies did not challenge any of the acquisitions that the DOJ now says are problematic. How Google explains its business conduct is a different challenge. It will be interesting to see if its lawyers think it better to get into the weeds on these claims or stick to broader generalities about Google’s right to vigorously compete.
Speaking of the parties’ lawyers, it is probable that very few of them will have any experience trying a civil antitrust case to a jury. The only in-house lawyers at the DOJ with jury-trial experience are likely to be found in the criminal sections, and their experience will be limited to trying price-fixing and bid-rigging claims, not Section 2 cases. Still, should the DOJ want to use only in-house lawyers, its experienced criminal prosecutors will be a valuable resource for understanding how to approach an antitrust jury trial. In the past, the DOJ has brought in outside lawyers to assist in specific cases—like David Boies in the Microsoft case—and they could do so again here. Google will have its pick of trial lawyers, and therefore is more likely to be represented by a team with experience trying civil antitrust cases to a jury, though such experience is not widespread even outside the government.
Should Juries Decide Civil Antitrust Cases?
What about the broader policy implications of jury trials in civil antitrust cases? Some courts have found that the Seventh Amendment, which guarantees a right to a jury trial, has a “complexity exception” for certain types of cases. This exception has been used to grant defendants’ requests to strike a jury demand in some antitrust matters or to consider the appointment of a special master to assist the jury. The Third Circuit has endorsed this approach, holding that a “suit is too complex for a jury when circumstances render the jury unable to decide in a proper manner.” Other circuits have rejected the complexity exception, and Professor Edward D. Cavanagh has stated that the exception “seem[s] dead in the water.”
Legal academics are split on whether juries are an appropriate means of deciding civil antitrust matters. Some experts assert that lay juries simply are not equipped to make sound decisions in cases that turn on complex points of law and economics. Professor Daniel Crane, for example, has argued that “juries are usually not competent to decide the highly technical issues that modern civil antitrust law involves.” Others contend that jury trials in antitrust cases have important benefits. Professors Harry First and Spencer Weber Waller have explained that “[j]uries help democratize antitrust.” They observe that jury trials “force[] lawyers to present their cases in ways that will make sense to lay people,” putting a premium on lawyers’ ability to present their claims and defenses in clear terms and to avoid language “cloaked in professional jargon.” One potential benefit of this approach may be to make the Google ad tech case and its stakes more accessible to the general public.
As First and Waller also note, however, no one really knows how well juries perform in antitrust cases. The DOJ is betting that, despite this uncertainty, a jury will give the government a better chance of prevailing than a judge. The only sure thing perhaps is that, for better or worse, the jury trial will change the way the parties present their cases. How this trial turns out also may determine whether we see more jury demands in government civil antitrust cases, or if this case will be one of a kind.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
