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Epic Games filed another response to Google’s appeal of its guilty verdict in the antitrust case over the way the company manages its Google Play Store.
Epic Games has been in a legal battle with Google since Google (and Apple) removed Epic’s battle royale game Fortnite from the Google Play Store after Epic Games filed a lawsuit alleging antitrust violations in 2020.
“This case is a long overdue reckoning. “The court filings are replete with evidence of Google’s years-long strategy to stifle competition between app stores and payment solutions in the Android ecosystem,” Epic Games said in its lawsuit filing over the weekend. “Google’s internal documents clearly detail the “combination of tactics” that Google used because it believed that “competition on price…is likely to be a race to the bottom.”
Epic accused Google of destroying evidence in the case, adding: “Despite Google’s intentional destruction of evidence and attempted obfuscation through what Google lawyers called ‘false privilege,’ the trial has the most varied methods.” uncovered, with which Google systematically blocked its competitors from all opportunities to compete. ”
Google has denied antitrust violations and is appealing its loss of rights in court. A jury found it a year ago Google violated Antitrust laws when it kept Epic Games out of the market during the litigation.
This outcome differed from the antitrust case against Apple, which Epic largely lost. In this case against Apple, Epic only won on one point: app and game developers should be allowed to advertise their alternative stores with lower prices within their apps in the Apple App Store.
But in this case, the jury concluded that Google had illegally linked its App Store and its billing payment service. Much of the case hinged on evidence related to “Project Hug” deals, in which Google paid game developers not to compete with its App Store, which the jury considered anticompetitive.
Among other things, Google required all original equipment manufacturers (OEMs, the companies that make smartphones) that make Android smartphones to favor its app store (called Google Play) and paid most OEMs for complete exclusivity, Epic said.
Epic claimed that Google required all OEMs to introduce technical and other barriers (often referred to as “friction”) to prevent users from obtaining apps outside of Google Play. Google paid app developers to withhold exclusive content from Google Play competitors and paid potential competitors not to open competing app stores. And after Google pushed out competing app stores, it also required developers using Google Play to use Google’s own payment solution (called Google Play Billing), for which Google charged an exorbitant fee, Epic said. As a result, only 3% of Android devices in the United States have successfully installed a competing app store. Potential competitors – from small innovators to powerful companies like Amazon – have been sidelined, Epic claimed.
Based on ample evidence of Google’s misconduct, after 15 days of trial, a jury unanimously found Google guilty of unlawful restraint of trade, monopolization and tying, Epic said.
Following the verdict, the district court conducted a months-long appeals process during which the parties submitted detailed written submissions, including expert and expert reports. The court also held two evidentiary hearings, hearing from Google experts and six expert witnesses. The court then issued an injunction that reflected the submissions of both sides and accepted and rejected some proposals from both parties. The injunction is intended to stop Google’s unlawful conduct and address its ongoing adverse effects while allowing Google to compete on the merits – and it ends in just three years, Epic said.
In the appeal, Google says remarkably little about the conduct it committed. Instead, it complains about the fact that in another case with a different record of different behavior by another company (Apple), the outcome was partially different, Epic claimed.
Epic also claimed that Google’s attacks on the district court’s injunction were flawed. When a defendant violates antitrust laws, courts have broad discretion to craft remedies that stop the unlawful conduct and deprive the wrongdoer of the ongoing fruits of their wrongdoing, Epic said. The district court exercised that discretion here judiciously, taking into account the seriousness and broad impact of Google’s offenses as well as sensitivity to the risks of intervention, Epic said.
Google’s claim that the district court “failed to consider” potential security concerns (Br.82) is also incorrect. The court specifically noted that there were “potential security and technical risks associated” with some of the remedies and authorized Google to “carry out its normal security processes.”
However, Epic said the court evidence showed that Google abused security justifications as a pretext for imposing anticompetitive restrictions, and the jury inevitably concluded that Google’s security justifications were outweighed by anticompetitive effects.
Epic therefore said that the district court reasonably limited Google’s future appeals to “security” as a basis for resisting remedies (and required Google to show that restrictions on third-party app stores were “strictly necessary to provide security for.” to ensure users and developers”) “). Additionally, the district court found that Google’s security concerns were overblown, Epic said.
Epic Games told the appeals court that the district court’s ruling should be affirmed. Additionally, since Google has no prospect of success on the merits, its pending stay motion should be denied immediately so that the injunction can benefit consumers and developers while the court prepares its full opinion, Epic said.
We’ll see how Google reacts to this.
