DOJ Fails To Secure Jury Trial In Adtech Monopoly Suit After Damages Claim Mooted By $2.3 Million Cashier’s Check
Antitrust Litigation
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  • DOJ Fails To Secure Jury Trial In Adtech Monopoly Suit After Damages Claim Mooted By $2.3 Million Cashier’s Check


    On June 11, 2024, the United States District Court for the Eastern District of Virginia granted defendant’s motion to dismiss plaintiffs’ damages claim in a lawsuit brought by the Department of Justice and eight states against a technology company alleging illegal monopolization of adtech markets. The Court, in an opinion unsealed on June 17, dismissed the damages claim as moot, finding no claim for relief remained after defendant sent the full amount of potential damages to DOJ’s offices in the form of a cashier’s check. The Court also struck plaintiffs’ demand for a jury trial, which was based solely on the claim for damages. United States of America et al. v. Google, LLC, No. 1:23-cv-108 (E.D. Va. Jun. 19, 2024).

    Plaintiffs requested a jury trial and included a claim for damages in their amended complaint. The complaint alleged that eight federal agencies suffered monetary damages for alleged overcharges on open web display advertising they purchased from defendant. Either party can request a jury trial in cases that involve monetary damages, whereas claims for solely injunctive or equitable relief can only be tried before a judge.

    On April 26, 2024, defendant filed its motion for summary judgment. On May 16, a day before plaintiffs’ opposition was due, defendant had a cashier’s check for $2,289,751 delivered to the offices of the Antitrust Division of the DOJ. In a letter accompanying the check, counsel for defendant stated that defendant was “voluntarily tendering” payment “for the full amount of damages alleged by the United States.” The letter also states that the check “should not be construed either as an admission that [Defendant] is liable in this action, or that the United States has suffered any damages.” The same day, defendant filed a motion to dismiss the damages claim and strike the jury demand, arguing that the issue was moot because the payment extinguished the plaintiffs’ damages claim and, by extension, the right to a jury trial.

    Responding to the motion to dismiss the damages claim, plaintiffs argued that the amount was too low, and that its actual damages theoretically could have been higher if the case went to trial. Plaintiffs pointed to various sections in their experts’ report that they said could support a higher damages award. Plaintiffs also argued that the tender was deficient because of the statements in the accompanying letter, which they argued were akin to contractual conditions being placed on the payment that would disqualify it from fully satisfying the claim. 

    The Court found both of these arguments unpersuasive. The Court noted first that plaintiffs had never clearly advanced an argument alleging a competitive scenario leading to a higher damages award before briefing on the motion at issue. Crucially, the Court pointed out that plaintiffs had even neglected to contest the claimed damages number in defendant’s Statement of Undisputed Facts upon which the tendered payment was ultimately based, even though they had already received the cashier’s check by that time. According to the Court, the failure to oppose the damages figure in the Statement of Undisputed Facts amounted to an admission by plaintiffs. As for the alleged conditions imposed by the letter, the Court saw them simply as statements describing defendant’s position, not any contractual restrictions.

    The trial as to plaintiffs’ injunctive claims is scheduled for September 9, 2024.

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