Report from Bloomberg
In Brief – Lawyers for Google and Epic Games faced off in front of a panel of US Ninth District Court of Appeals in Google’s challenge of its antitrust loss to Epic Games and the subsequent remedies crafted by Federal Judge James Donato. A jury ruled that Google violated federal antitrust law in the operation of its Android mobile operating system and the Google Play app store. Judge Donato then crafted remedies that include allowing app developers to stop using Google’s payments service that collects Google’s fees, requires Google to allow developers to distribute their own app store apps in the Play Store, and gives those third-party app stores access to all the apps available on the Play Store. Google argues that the jury ignored the robust competition between Apple and Android, in part due to improper instructions from Donato, and that their decision runs counter to the federal court ruling that Apple’s similar app store restrictions are legal. Google also argued that the trial should not have been before a jury and that Donato’s remedies go well beyond the facts of the case. The appeals court panel seemed especially skeptical of Google’s argument that their loss should be rejected because Apple won, as well as that they had a legal right to change to a bench trial very shortly before the trial was set to begin.
Context – Epic filed antitrust suits against both Apple and Google in 2020. Apple largely prevailed. Google lost. The fact that the “closed” Apple ecosystem with a larger market share was on the right side of antitrust law struck many as odd, but Apple had a bench trial while Google faced a jury of people potentially primed against Big Tech, and Google’s complicated regime of rules, contracts, and revenue-sharing deals, especially with device makers, proved problematic. Similar company practices were a big problem in Google’s antitrust loss to the US Department of Justice that determined they maintained a monopoly in online search. While Epic is challenging Apple’s compliance to an anti-steering order in another federal courtroom in California, both companies are facing demands to open app distribution in Europe, Japan, South Korea and other markets.