Google’s $2.3 Million Mistake: How a Bench-Trial Play Became a Preclusion Problem

In June 2024, a few months ahead of the requested jury trial in the Department of Justice’s challenge to Google’s advertising technology monopoly, Google tendered a cashier’s check for $2,289,751 to the Department of Justice—which was precisely the amount the United States claimed in antitrust damages, trebled with prejudgment interest.^[1]That maneuver mooted the government’s damages claim and, with it, its jury demand.^[2]The remaining equitable claims went ahead with a bench trial in the Eastern District of Virginia (EDVA).^[3]While Google’s strategy eliminated the short-term risk of a potentially volatile jury, it exposed the company to a devastating, long-term issue preclusion risk. This article explains why Google’s bench-trial gamble backfired, and what antitrust defendants can learn from it.

The Check that Bought a Bench Trial

In United States et al. v. Google, the government alleged that Google violated Sections 1 and 2 of the Sherman Antitrust Act, seeking equitable relief and damages.^[4]By tendering the full amount of damages claimed (with trebling and prejudgment interest), Google mooted the damages count and removed the jury from the equation. What followed was a three‑week bench trial featuring 39 live witnesses, extensive deposition excerpts, and hundreds of exhibits, culminating in a comprehensive memorandum opinion by EDVA Judge Leonie M. Brinkema.^[5]

Ultimately, Judge Brinkema found that Google monopolized the open‑web display markets for publisher ad servers and ad exchanges and unlawfully tied its publisher ad server (DFP) to its ad exchange (AdX) in violation of the Sherman Act.^[6]Judge Brinkema’s 115‑page opinion included detailed findings on market definition, monopoly power, and exclusionary conduct backed by extensive reasoning that would later prove significant. Judge Brinkema recently concluded a remedies hearing, with closing arguments slated for November 17, 2025.^[7]If the DOJ gets its way, Google faces “nothing short of a structural divestment,” which includes parting ways with AdX and publicizing proprietary code for its publishing tools.^[8]

The Gamble Backfires

In addition to the DOJ’s lawsuit in the EDVA, Google faced a related multidistrict litigation (MDL) in the Southern District of New York, before Judge P. Kevin Castel, over the same claims of monopolization and anticompetitive conduct in the advertising technology sector. After Judge Brinkema ruled in the DOJ’s favor on liability, the MDL plaintiffs moved for partial summary judgment, arguing that Judge Brinkema’s findings, including those on liability, bound the MDL court due to the doctrine of issue preclusion.^[9]Under this doctrine, courts faced with decided issues must adhere to prior resolutions, preventing parties from relitigating settled issues. The MDL court analyzed the four traditional elements of issue preclusion, and concluded that (1) the MDL issues were identical to the issues in United States et al. v. Google; (2) these issues, including liability, were actually litigated before and decided by Judge Brinkema; (3) Google had a full and fair opportunity to litigate these issues during the EDVA bench trial; and (4) Judge Brinkema’s findings on these issues were necessary to support a valid and final judgment on the merits.^[10]

Judge Castel emphasized that it was the nature of the bench trial that gave the EDVA findings their preclusive effect.^[11]Generally, jury verdicts are limited to a mere finding of “liable” or “not liable” without opportunity for elaboration into the jury’s reasoning. In contrast, a judge’s decision following a bench trial will include extensive factual findings and legal reasoning, avoiding the ambiguity of general jury verdicts. Hence, the MDL court here did not need to speculate about theories a jury accepted, or which actions necessarily decided the case. Instead, Judge Brinkema’s thorough findings on the relevant market, monopoly power, unlawful tying, and exclusionary conduct were explained in full, “actually and necessarily decided,” and thus preclusive.^[12]

Bench vs. Jury Trials in Antitrust: Issue Preclusion and Exposure

The Google litigation illustrates a strategic tradeoff that well-resourced defendants might consider when faced with a mitigable damages claim: the potential benefits of a bench trial versus its potential preclusive effects on subsequent litigation.

Jury Trials: The Pros and Cons

Jury trials pose various risks to antitrust defendants. First, antitrust cases often involve complex economic issues beyond the day-to-day understanding of the average juror, requiring significant education at trial. Second, recent surveys have documented widespread distrust of large corporations that often find themselves defending against antitrust claims.^[13]Many jurors report that they favor individuals over corporations, view punitive damages as a tool to “send a message,” and prioritize perceived fairness over strict legal rules.^[14]Recent corporate defendants have learned this lesson the hard way. In 2024, a jury hit the National Football League with a $4.8 billion judgment, amounting to $14.1 billion post-trebling.^[15]Though this award was later overturned for a lack of evidence (because, as the court determined, the jury had substituted its own damages analysis for those presented at trial), it highlights the risk of jury trials for antitrust defendants.^[16]And in May 2025 a jury deliberated for just two hours before it dealt a $442.2 million (post-trebling) blow to Johnson & Johnson’s medical technology unit.^[17]That same month, another jury delivered a $405 million (pre-trebling) antitrust verdict against Amgen Inc.^[18]

Alternatively, jury trials present less risk of binding a defendant in later litigations. Unless the court employs special verdicts or detailed interrogatories, a general verdict may not reveal which theory the jury accepted. Without clear, necessary determinations, subsequent courts are hesitant to apply issue preclusion to specific elements of liability—providing defendants a greater opportunity to relitigate disputed elements in later related litigation.

Bench Trials: The Pros and Cons

Judges are generally more familiar with the law and economics underlying antitrust cases than lay jurors and thus may seem preferable to some antitrust defendants. Defendants should keep in mind, however, that, as demonstrated by Google, antitrust fluency does not guarantee a pro-defendant result. Further, as in the case of Judge Brinkema’s 115-page opinion, a bench trial will yield detailed judicial findings on market definition and competitive effects, among other issues. Hence, if the court rules against the defendant following the bench trial, those issues will be “actually and necessarily decided” in a form that subsequent courts can readily apply.

However, the same specificity that presents preclusive risks also equips defendants with a broader arsenal for appellate attacks. Knowing exactly what law a judge invoked and how they applied it to the facts allows defense counsel to carefully dissect for misinterpretations and misapplications.

Conclusion

Ultimately, the lesson for antitrust litigants is not that one strategy is universally preferable. Rather, parties must carefully make a holistic choice, considering the short-term and long-term benefits and risks.

Law clerk Allie Dodd also contributed to this blog post.

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[1] United States, et al. v. Google LLC, 23-cv-108 (LMB/JFA), slip op. at 2 (E.D. Va. Apr. 17, 2025).

[2] Id. at 2.

[3] Id. at 2.

[4] Id. at 1.

[5] Id. at 1.

[6] In re Google Digital Advertising Antitrust Litig., No. 1:21-md-03010-PKC, slip op. (S.D.N.Y. Oct. 27, 2025).

[7] Google Ad Tech Remedies Hearing Concludes; Judge Urges Settlement, North America Antitrust Digest (Oct. 17, 2025), https://fgsglobal.com/insights/newsletters/na-antitrust-digest/antitrust-digest-october-2025.

[8] Id.

[9] In re Google Digital Advertising Antitrust Litig., No. 1:21-md-03010-PKC, slip op. (S.D.N.Y. Oct. 27, 2025).

[10] Id. at 7.

[11] Id. at 11.

[12] Id. at 10.

[13] Debra Cassens Weiss, Distrusting justice system and institution, Americans will take back power in the jury room, survey finds, ABA Journal (Aug. 14, 2025), https://www.abajournal.com/web/article/lawyers-defending-corporations-have-tough-job-survey-finds-only-19-of-adults-view-them-positively.

[14] Id.

[15] Kayleigh McCormick, Note, Sunday Ticket Subscribers Punt Their NFL Lawsuit Back to the Ninth Circuit, Colum. J. L. & the Arts (Nov. 8, 2024), https://journals.library.columbia.edu/index.php/lawandarts/announcement/​view/734.

[16] Id.

[17] Gina Kim, J&J Unit Hit With $147M Verdict In Catheter Antitrust Suit, LAW360 (May 16, 2025), https://www.law360.com/articles/2341459/j-j-unit-hit-with-147m-verdict-in-catheter-antitrust-suit.

[18] Press Release, Regeneron Prevails over Amgen in Antitrust PCSK9 Lawsuit Protecting Biotech Innovation and Patient Access to Life-Saving Treatments, Regeneron (May 15, 2025), https://newsroom.regeneron.com/news-releases/news-release-details/regeneron-prevails-over-amgen-antitrust-pcsk9-lawsuit-protecting.