Google seeks to undo Fortnite-maker Epic Games antitrust win over App Store

By Josh Sisco and Malathi Nayak 

Alphabet Inc.’s Google is asking a federal appeals court to throw out a ruling in an antitrust case brought by Fortnite-maker Epic Games that would force the search giant to overhaul its Play mobile app store.  

Google said in a filing Wednesday that US District Judge James Donato’s ruling is mistaken and asked that the outcome of the long-running litigation be set aside.

 

For one thing, Google argued, Donato should have recognized that the company competes with Apple Inc. in the smartphone market, as a different judge found when she concluded that Apple’s conduct toward Epic didn’t violate federal antitrust laws. The judge also erred in holding a trial with a jury last year instead of deciding himself whether Google acted anticompetitively, the company said. Google says Donato’s ruling would force it to do business with rival app stores — which the company contends it is not legally required to do.

 

Google’s appeal is “meritless” and relies on “flawed arguments,” a spokeswoman for Epic said in a statement. “We will fight to ensure that the jury’s verdict and the court’s injunction are upheld and Google is held to account for its anticompetitive behavior.”

 

A San Francisco jury concluded in December 2023 that Google violated antitrust law by blocking rival app stores through a series of revenue-sharing agreements with mobile device makers like Samsung. Following up with a fix in October, Donato ordered Google to allow developers to set up app marketplaces and offer consumers billing options other than its own payment system.

 

“This case involves an extraordinary attempt by a lone competitor to use the federal judiciary to restructure the day-to-day operations of Google’s app store, Google Play, and to unilaterally reshape markets with consequences for millions of non-parties,”Google said in its filing. The jury verdict and Donato’s injunction, unless reversed, “will directly undercut Google’s efforts” to compete against Apple, Google said.

 

Epic first sued Google and Apple in August 2020, accusing them of blocking competition for rival app stores. The judge in the Apple case largely ruled against Epic, though she directed the iPhone maker to make some changes to its App Store rules. Epic and Apple are currently fighting in an Oakland federal court over whether the iPhone maker is abiding by that ruling. 

 

Donato has temporarily put his ruling on hold. The Ninth Circuit Court of Appeals in San Francisco can extend that delay pending the outcome of Google’s appeal, or force Google to make changes to its business while simultaneously seeking to overturn the ruling.

 

Oral arguments are scheduled on Feb. 3 at the Ninth Circuit.