Monopoly Round-Up: Google Tries to Pay Off the Antitrust Division
In an astonishing move, Google cut a check to the U.S. government over an antitrust case, in the hopes of avoiding a jury trial. And it argues such jury trials are unconstitutional.
Today’s monopoly round-up is pretty amazing. This week, liquor monopolist David Trone lost a Democratic primary despite spending $60 million, the Supreme Court overwhelmingly ruled that the Consumer Financial Protection Bureau is constitutional, and Google actually offered money to the Antitrust Division to try and avoid having a case go to a jury. I’m not kidding. Here’s a copy of the check.
One of Antitrust Division chief Jonathan Kanter’s goals is to make antitrust accessible to normal people, removing it from the control of the technocrats. He’s changed the language of litigation, using plain spoken terms. He’s broadly sought public comment for things like merger guidelines, and done forums all over the country. He’s also sought to have a major monopolization case against Google tried in front of a jury instead of a judge.
(There are actually two antitrust cases against Google, and the one that just ended, which is about search, is in front of a judge, while the one going to trial in September, which is about advertising software, is in front of a jury.)
The right to a jury trial is in the Seventh Amendment of the Constitution, but there are certain requirements for a jury trial, like damages or potential criminal liability. Merger trials, for instance, don’t involve damages, so they cannot have juries. In this case, the Antitrust Division alleged that Google had robbed advertisers through monopolization, and since the U.S. government is an advertiser, it alleged it has suffered monetary damages. As such, it asked for a jury trial. Kanter’s view is that antitrust law should have to be accountable to the public, and jury trials are a way of accomplishing that.
Google’s response last week was astonishing. They just cut a check for all proposed harms, tripled it in accordance with the Sherman Act’s treble damages charge, and claimed that the point is moot. But beyond that, the search monopolist argued that the United States government “has no right to a jury trial under the Seventh Amendment, even for its damages claim,” and argued that “particularly complex cases should be resolved by judges rather than juries,” aka normal people cannot decide hard cases. Google hired a fancy medieval scholar, a guy at a Scottish university named Professor John Hudson, to explain how the founders were libertarians who thought the public was dumb.
It’s of course not true that juries can’t understand antitrust cases or are somehow worse than judges. A jury decided the Epic Games vs. Google trial fairly quickly, meanwhile Judge Amit Mehta, in the search trial, has been sitting on the decision for six months. I’ve watched a bunch of antitrust trials, and it’s clear that judges have too much power, and that having normal people involved would be a significant improvement.
All that notwithstanding, Google cutting the check is a concession to the merits of the Antitrust Division’s case. As Lee Hepner put it, “If it wasn’t clear already, Google is acknowledging that actual monetary damages, even if trebled, are an insufficient deterrent for a trillion dollar entity to illegally maintain a monopoly.”
There are a couple of things going on here. First, Google has an unlimited budget for its antitrust defense, and it also does an immense amount of product testing. It’s quite likely that it did mock trials in front of test juries, and found that the outcome probably wasn’t good. The judge in the case, Leonie Brinkema, has been pretty annoyed at Google, so it’s not a promising outcome if they go with a bench trial. But they will bet on the judge than a jury. Second, circuit courts are usually more reluctant to overturn a jury than a judge, so Google wants Brinkema to have to author an opinion that they can then try to overturn.
At any rate, it’s rare to have a company just try to openly pay their way out of trouble without even settling with the government. But then again, Google executives think they are above the law.
Here’s the good and bad news of the week.
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