• by Wendy Davis  @wendyndavis, December 30, 2024

Fortnite developer Epic Games is asking a federal appeals court to uphold a jury's finding that Google's Play Store policies violated antitrust law, and to leave in place a judge's injunction requiring the company to revamp its app marketplace.

“This case is a reckoning long overdue,” Epic says in papers filed late last week with the 9th Circuit Court of Appeals.

The company adds that the jury's finding was based on evidence of “Google’s years-long strategy to suppress competition among app stores and payment solutions in the Android ecosystem,” and that the injunction was crafted “to stop Google’s unlawful conduct and address its continuing adverse effects, while allowing Google to compete on the merits.”

Epic's new papers come in dispute that began in 2020, when the game developer brought antitrust suits against both Google and Apple. Epic did so soon after both Google and Apple removed Fortnite from their mobile app marketplaces for allegedly attempting to avoid paying commissions on in-app purchases. (Both Google and Apple charge a commission on purchases made in apps that have been downloaded from Google Play or the App store.)

Epic's suit against Apple went to trial in 2021, and largely resulted in a defeat for Epic. U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California, who presided over the non-jury trial, ruled that Epic failed to prove the bulk of its claims. Rogers said in her ruling that Google and Apple compete to distribute apps.

Nearly two years later, Epic's suit against Google went to trial. In that matter, a jury found that Google created or maintained an illegal monopoly in two “markets” -- Android app distribution, and Android in-app billing. The jury also found that Google wrongly tied company's ability to distribute through the Play store to Google's payment system.

In October, U.S. District Court Judge James Donato in San Francisco, who presided over the Google trial, issued a sweeping injunction that requires Google Play to host other companies' app stores, and give those companies access to Google's library of apps. The injunction -- which Donato said should last for three years -- also prohibits Google from forcing developers to use its billing system for Play Store apps, among other provisions.

The injunction is currently stayed.

Google recently urged the 9th Circuit to reverse jury's verdict and to permanently vacate the injunction.

Among other arguments, Google says the verdict is inconsistent with Rogers' ruling in Epic's suit against Apple, elaborating that Rogers' ruling should have precluded Epic from pursuing a “litigation do-over.”

Epic counters in its new papers that business differences between Google and Apple justify the different results at trial.

“Whereas Apple has vertically integrated its hardware, operating system and app store, Google publicly touts Android as an 'open alternative' ...but then uses an array of restrictive contracts to obstruct competition,” Epic writes.

“It is not 'inconsistent' for each company’s different conduct to be assessed individually, based on different trial records, leading to different results,” Epic adds.

The game developer is also asking the court to allow the injunction to immediately take effect.

“Violating the law has consequences,” Epic writes.“Courts have broad discretion to craft injunctions that address the ongoing adverse effects of a defendant’s anticompetitive conduct, and many courts have required antitrust violators to transact with others in specified ways.