Epic win: Jury rules Google Play app store and billing an illegal monopoly
The Epic versus Google case has reached a significant milestone as the jury ruled that Google violated California and federal antitrust laws, but years of appeals are sure to follow.
Epic's 1984 parody
Just three years after Apple's win against Epic for similar claims, Google has lost. The jury ruled that Google made special deals to stifle competition for the Play Store.
According to a report from Wired, the San Francisco jury unanimously found Google in violation of California and federal antitrust laws. However, the litigation has only begun as a judge must decide what to order Google to do to remedy the situation, followed by appeals from Google.
"We plan to challenge the verdict," says Wilson White, a Google vice president of government affairs and public policy. "We will continue to defend the Android business model and remain deeply committed to our users, partners, and the broader Android ecosystem."
Google's Android operating system already allows third-party app stores and side loading. However, the lawsuit asserts that Google uses its power over Android and the smartphone market to exact control over what apps and storefronts are promoted, pushing for Google Play over others. It also focused on Google's financial arrangements with smartphone vendors to lock users in, with Google Play as a primary app store.
Epic also alleged that existing options for users to circumvent Google Play were too cumbersome and purposefully built to push users back to Google. The company was effectively "shutting rivals off," Epic lawyer Gary Bornstein shared.
Epic published a blog post celebrating the win.
"Over the course of the trial we saw evidence that Google was willing to pay billions of dollars to stifle alternative app stores by paying developers to abandon their own store efforts and direct distribution plans, and offering highly lucrative agreements with device manufacturers in exchange for excluding competing app stores."
The blog post concludes with a thank you to the court for "the next steps determining the remedies that will right Google's decades of anticompetitive conduct."
Conversely, Apple escaped Epic's lawsuit with only one count against it -- anti-steering practices. Apple is still fighting that ruling but will likely have to comply eventually.
Epic's fight to have a foothold in app distribution and monetization continues as governments become more interested in combating antitrust.
Read on AppleInsider
Comments
https://www.gamepressure.com/newsroom/epic-games-store-spent-1-billion-on-exclusives/z73211
https://www.gamewatcher.com/news/Epic-games-store-exclusives
They paid to have games exclusively on their store, locking other stores out.
They are hypocrites claiming to be for open access to gaming but then force people to use their store because they paid off the developers. It's not about freedom but control, they want to be the dominant store and metaverse, as does their biggest investor Tencent.
It will be interesting to see how that particular aspect of this jury's decision fares on appeal. Will the determinations of single-brand relevant antitrust (product) markets be upheld? Or will an appeals court find that such single-brand markets aren't, as a matter of law, supported by the facts of and evidence presented in this case? I could see the answer going either way, in large part because appeals courts haven't as-yet provided a great deal of guidance on when relevant antitrust markets can be limited to single brands - though, in fairness, the Ninth Circuit (where an initial appeal would be heard) has provided more guidance on that front than most (if not all) other circuits. It's also possible that the trial court itself (i.e. the district court judge) could find for Google that no such relevant market is supported - based on the evidence presented and as a matter of law - in response to a post-verdict motion from Google.
https://www.nolo.com/legal-encyclopedia/judge-jury-trial-which-better.html
Now, some of (but not all of) the nuance...
In Apple's case Epic didn't ask for a jury trial. And since it was only asking for equitable relief (e.g. an injunction preventing Apple from doing certain things) as opposed to legal relief (e.g. monetary damages), Apple wasn't entitled to a jury trial. Apple did make counterclaims on which it was entitled to (and asked for) a jury trial. But insisting on a jury would have meant two separate trials. So Apple ultimately agreed to one bench trial.
In Google's case Epic again didn't ask for a jury trial and again only asked for equitable relief. Google also made counterclaims on which it was entitled to (and asked for) a jury trial. But in that case something else happened, Epic's suit was consolidated with several other cases brought against Google with all the antitrust claims to be heard in a single trial. That effectively settled the issue of whether there would be a single jury trial, a single bench trial, or separate trials (one for Epic's antitrust claims and another for Google's counterclaims). Because the other plaintiffs had asked for legal (i.e. not just equitable) relief, those other plaintiffs and Google were entitled to a jury trial. Google was set to get what it wanted, a jury trial not just on its counterclaims but on all of the antitrust claims as well.
The cases remained on that track until Google eventually settled with all of the other (non-Epic) plaintiffs. By that point Epic and Google had switched positions; Epic wanted a jury trial and Google wanted a bench trial - perhaps, in part, because the judge had ordered that an adverse inference instruction be given to the jury in response to Google's deletion of chat records. Each side made its legal arguments and Epic (probably correctly) prevailed. Google didn't get to switch to a bench trial at the last minute.
So in the Apple case Epic got the bench trial it wanted and largely lost. Then in the Google case Epic didn't get the bench trial it initially wanted and largely won. Go figure.
The judge in the Apple case could have determined that there was a relevant antitrust market based on a single brand - e.g., iOS app distribution. But after trial Judge Rogers determined that wasn't the relevant antitrust market. Such a determination is part findings of fact and part conclusions of law.
The jury in the Google case also could have determined that there was a relevant antitrust market based on a single brand, or it could have determined otherwise. After trial it determined that there were two such single-brand relevant antitrust markets. That isn't something the judge determined before trial. In theory he could have, but he didn't. It's possible that he will make such a determination after trial, i.e. that the evidence presented doesn't support such a determination.