Epic Games filed the other response to Google's appeal of its guilty verdict in its antitrust trial regarding how it manages its Google Play Store.
Epic Games, which has been in a lawsuit with Google ever since (and Apple) has removed Epic's battle royale game Fortnite from the Google Play Store after Epic Games sued for infringements antitrust in 2020.
“This case is long overdue. The test schedule is full proof of Google's year-long strategy to suppress competition among app stores and payment solutions in the Android ecosystem,” Epic Games said in its legal filing over the weekend. “Google's internal documents clearly detail the “variety of tactics” that Google used because it believed that “competition on price… is likely to be a race to the bottom.”
Epic, accusing Google of destroying evidence in the case, said, “Despite Google's deliberate destruction of evidence and attempts to hide it through what Google's lawyers described as “false privilege” , an experiment revealed the various ways in which Google systematically blocked all paths for competitors. “
Google has denied antitrust violations and is appealing its legal loss in court. A year ago, a jury found Google broke antitrust laws when he cut off Epic Games during the trial.
That result was separate from the antitrust case against Apple, which Epic lost by a landslide. In that case against Apple, Epic won on only one point – app and game developers should be allowed to advertise their other stores with lower prices within their apps on Apple's app store.
But in this case, the jury found that Google had illegally bundled its app store and its billing payment service. Much of the case hinged on evidence related to “Project Hug” deals, where Google paid game developers not to compete with its app store, which the jury saw as co-op competitive.
Among other things, Google required all original equipment manufacturers (OEMs, the companies that make smartphones) that make Android smartphones for their app store (known as Google Play) and most OEMs paid for full exclusivity, Epic said.
Epic said Google required all OEMs to put in place technical and other barriers (commonly known as “friction”) to discourage users from getting non-Google apps Play. Google paid app developers to withhold exclusive content from Google Play competitors, and paid competitors not to launch competing app stores. And after squeezing competing app stores, Google required developers using Google Play to also 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 a competing app store installed. Competitors – from small innovators to powerful companies such as Amazon – are said to be fenced out, Epic said.
Based on sufficient evidence of Google's wrongdoing, after a 15-day trial, a jury unanimously found Google liable for unlawful restraint of trade, monopolization and association, Epic said.
Following the decision, the district court conducted a month-long remedial work, with extensive written submissions from the parties, including fact and expert witnesses. The court also held two evidence hearings, where it heard from Google's witnesses and six witnesses. The court then entered an injunction that reflected the views of both sides, accepting and rejecting some of each party's proposals. The injunction is designed to stop Google's illegal behavior and address its lingering negative effects, while allowing Google to compete on its merits – and it will end in just three years, Epic said.
On appeal, Google is saying very little about the conduct it engaged in. Instead he laments that in a different case with a different record of different behavior by a different company (Apple), the result was somewhat different, Epic said.
Epic says Google's attacks on the district court's injunction are also flawed. When a defendant violates the antitrust laws, courts have broad discretion to make remedies that end the illegal conduct and deny the wrongdoer the continuing consequences of the misconduct, Epic said. The district court used that option thoughtfully, taking into account the gravity and pervasive effect of Google's crimes, leaving them with sensitivity to the risks of intervention, Epic said.
Google's argument that the district court “failed to account” for potential security concerns (Br.82) is also incorrect. The court specifically stated that “some of the remedies involve security and technical risks” and authorized Google to “engage in its normal security and safety processes”.
Epic said that the trial evidence showed, however, that Google had misused the security justification as a reason to impose anti-competitive restraints, and the jury necessarily found that the the security justification that Google had provided outweighed the anti-competitive effects.
Thus, Epic argued that the district court imposed reasonable limits on Google's future “security” as a basis for opposing remedies (requiring Google to show that limits on third-party app stores were “absolutely necessary” to achieve safety and security for users and developers.”) Additionally, the district court had a record of Google's concerns about security, Epic said.
Epic Games told the appeals court that the district court's judgment should be affirmed. Additionally, since Google has no expectation of success on the merits, its pending motion to stay should be quickly denied, allowing the lawsuit to begin benefiting consumers. and developers while the court prepares its full opinion, Epic said.
Let's see what Google has to say in response.
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