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Google loses Play Store antitrust case to Epic
RICHARD WEINER
Technology for Lawyers
Published: January 5, 2024
It took less than a “Fortnite’ (actually less than four hours) for a jury to come to a verdict against Google at the end of what might be a historic four-week antitrust trial.
Epic Games, maker of the multibillion dollar video game Fortnite, sued Google, alleging (and eventually proving) that Google had maintained an unlawful monopoly of the Google Play Store and Google Play Billing service in violations of Sections 1 and 2 of the Sherman Act and of California law.
Epic had filed antitrust cases against both Apple and this case against Google three years ago. Epic recently lost the case against Apple.
But Google holds itself out as an open-source operating system intended to be interoperable with other, nonaffiliated systems, which would include Epic and its gaming systems if true.
However—not true!
The genesis of the lawsuit stemmed from Epic’s decision to allow in-app payments for its games, in contravention of the fact that any apps in the Google Play Store were forced to use Google’s in-house payment system, Google Play Billing.
At the trial, Epic argued that Google held itself out to be an open-source platform meant to allow users to download and modify source code, but instead used its monopoly power in its Play Store to restrict channels that were in competition with itself.
Google’s CEO Sundar Pichai testified that Google did not have monopoly power in their app store.
The jury didn’t buy that, finding that Google had engaged in anticompetitive conduct in the Play Store.
Another issue (Important!) was document retention, in particular retention of internal chats among Google employees working in relevant channels.
The company had apparently changed which messages were retained and for how long after the lawsuit had been filed.
Epic did move for sanctions and the judge did include Google’s behavior in the jury instructions.
Damages in the case will be determined by the judge later but Epic is only asking for injunctive relief.
In the background of all of this is the fact that the DOJ is also pursuing antitrust litigation against Google.
Talk to your local broker about how stable Google stock is at the moment.
Cite: Epic Games, Inc. v. Google LLC, 3:20-cv-05671, (N.D. Cal.)