Epic Games presents its argument to uphold the antitrust ruling against Google

Epic Games has filed another response to Google’s appeal of the antitrust conviction over how it operates its Google Play Store.

Epic Games, who have been in litigation with Google since Google (and Apple) removed Epic’s Fortnite Battle Royale game from the Google Play Store after Epic Games filed a lawsuit for antitrust violations in 2020.

“This case is long overdue. The trial record is replete with evidence of Google’s long-standing strategy to stifle competition between app stores and payment solutions in the Android ecosystem,” Epic Games said in its legal filing over the weekend. “Google’s internal documents clearly describe the ‘combination of tactics’ used by Google because they believed that ‘price competition…tends to be a race to the bottom.’

Epic, accusing Google of destroying evidence in the case, added: “Despite Google’s deliberate destruction of evidence and attempted concealment through what Google’s lawyers called ‘false privilege,’ the trial revealed the numerous ways Google systematically obstructed every time for competitors to compete. “

Google has denied antitrust violations and is appealing its legal loss in court. A year ago, a jury found Google is broken antitrust laws when it cut Epic Games during the litigation.

This outcome was different from the antitrust case against Apple, which Epic largely lost. In this case against Apple, Epic won only one point – that app and game developers should be allowed to advertise their lower-priced alternative stores in their apps in Apple’s app store.

But in this case, the jury found that Google illegally tied together its app store and its billing 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 found anticompetitive.

Among other things, Google requires all original equipment manufacturers (OEMs, the companies that make smartphones) that make Android smartphones to favor its app store (called Google Play) and pays most OEMs for full exclusivity, Epic said. .

Epic claims that Google requires all OEMs to impose technical and other barriers (often called “friction”) to dissuade users from getting apps outside of Google Play. Google paid app developers to withhold exclusive content from competitors on Google Play and paid potential competitors not to launch competing app stores. And after cracking down on rival app stores, Google required developers using Google Play to also use its own payment solution (called Google Play Billing), which Google charged an exorbitant fee for, 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 powerhouses like Amazon — have been sidelined, Epic claims.

Based on overwhelming evidence of wrongdoing by Google, after a 15-day trial, the jury unanimously found Google liable for unlawful restraint of trade, monopolization and tying, Epic said.

After the verdict, the district court conducted a months-long defense proceeding with extensive written submissions by the parties, including facts and expert opinions. The court also held two evidentiary hearings where it heard fact witnesses from Google and six experts. The court then entered an order that reflected the submissions of both parties, accepting and rejecting some of each party’s submissions. The injunction is designed to stop Google’s illegal behavior and address ongoing adverse effects while allowing Google to compete on merit — and it expires after just three years, Epic said.

On appeal, Google says remarkably little about the conduct it engaged in. Instead, it complains about the fact that in a different case with a different record of different conduct by another company (Apple), the result would have been partially different, Epic argued.

Epic argues that Google’s attacks on the district court’s order are also flawed. When a defendant violates the antitrust laws, courts have broad discretion to devise remedies that will end the illegal conduct and deprive the infringer of the continuing fruits of its misconduct, Epic said. The district court here exercised that discretion carefully, considering the gravity and pervasive impact of Google’s crimes, prompted by sensitivity to the risks of interference, Epic said.

Google’s claim that the district court “failed to account” for potential security issues (Br.82) is also incorrect. The court specifically stated that “potential security and technical risks exist” with some of the remedies and authorized Google to “engage in its normal security and safety processes.”

Epic said the trial evidence showed, however, that Google abused security justifications as a pretext for imposing anticompetitive restrictions, and the jury necessarily found that Google’s proffered security justifications were outweighed by anticompetitive effects.

Thus, Epic said the district court reasonably placed limits on Google’s future invocations of “security” as a basis for resisting the remedies (requiring Google to show that the restrictions on third-party app stores “were strictly necessary to achieve safety and security for users and developers”). The district court also has a record that finds Google’s security concerns are overblown, Epic said.

Epic Games told the appeals court that the district court’s decision should be upheld. Also, because Google has no prospect of success on the merits, its pending motion to stay should be dismissed immediately, allowing the injunction to begin benefiting users and developers while the court prepares its full opinion, Epic said.

We’ll see what Google’s comments are in response.