Google Appeal of Epic v. Google is Denied, Epic Games Wins Again

Epic Games seems to win even when it loses, but when it wins, it wins big. And it just won again, defeating Google’s appeal of the U.S. antitrust verdict against it.

“The outcome of this case—centered on Fortnite’s developer, Epic Games, and the Google Android platform—turns on longstanding principles of trial procedure, antitrust, and injunctive remedies,” Judge M. Margaret McKeown writes in the U.S. Court of Appeals for the Ninth Circuit verdict. “We reject Google’s claim that the decision in the Epic v. Apple litigation precludes Epic from defining the market differently in this case. We confirm that the district court did not abuse its discretion in proceeding with a single jury trial on Epic’s equitable claims and Google’s damages counterclaims. Nor did the district court abuse its discretion in declining to give a single-brand aftermarket jury instruction or in its framing of the Rule of Reason instruction. Finally, we affirm the district court’s injunction, which was supported by the jury’s verdict as well as the district court’s own findings.”

In other words, Epic Games has won Epic v. Google. Again.

“Total victory in the Epic v Google appeal!” Epic Games founder and CEO Tim Sweeney tweeted. Thanks to the verdict, the Epic Games Store for Android will be coming to the Google Play Store! It’s already available worldwide from our website.”

“This decision will significantly harm user safety, limit choice, and undermine the innovation that has always been central to the Android ecosystem,” a Google statement notes, alluding to its final appeal possibility, with the U.S. Supreme Court. “Our top priority remains protecting our users and developers, and ensuring a secure platform as we continue our appeal.”

If that sounds familiar, and it should, it’s because this is the same specious claim that Apple is making in its historic antitrust case with the U.S. Department of Justice and multiple U.S. states. But the Supreme Court has already declined to intervene in Epic v. Apple, so it’s unclear why it would afford Google an audience.

Epic v. Google, like Epic v. Apple, dates back to August 2020, when Epic Games went after the anticompetitive business practices that Google and Apple use in their respective mobile app stores. Both companies banned Epic’s Fortnite from those stores, and so Epic sued both in turn, setting off related legal battles with two of the world’s most powerful companies.

Epic initially received a mixed ruling in Epic v. Apple, though Apple later bungled its one legal requirement so badly, and was found to have lied to the judge, resulting in an astonishing turnaround in which Apple was forced to open up its App Store to rivals.

But Epic had won soundly in Epic v. Google, and it subsequently asked the court to force Google to open up its Google Play Store to rivals. After a set of remedy hearings, U.S. District Judge James Donato gave Epic Games everything it wanted and more. Google was granted a stay of the motion forcing it to open up Google Play and Android, so it filed an appeal, and then it argued its case before the appellate court. That court just denied Google’s appeal.

Worse, that court is also requiring Google to meet its legal obligations immediately and open up the Play Store to rival marketplaces like the Epic Games Store and to third-party payment methods for three years. The stay on the original ruling is over.