Epic, Google antitrust trial is a "tough case to predict" | Epic vs Google

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Legal experts say the outcome of the Epic vs Google trial is "tough to predict" as the two companies battle over the Fortnite firm's antitrust claims made in 2020.

The jury trial began in a San Francisco federal court on Monday, with Epic CEO Tim Sweeney and Alphabet CEO Sundar Pichai expected to testify in the coming weeks.

GamesIndustry.biz reached out to a range of legal experts to find out more about the potential outcome and impact of this trial. Richard Hoeg, managing partner of The Hoeg Law Firm, told us this is already a very different case due to Epic's previous efforts against Apple.

"Epic likely has a slightly stronger case against Google because of the fact that Google has to enforce restrictions through a separate third party, i.e. whoever is actually making the phone," he said. "Apple by comparison unilaterally restricts access to its own devices, and unilateral actors are usually given more leeway in antitrust law."

Gamma Law's managing partner David B. Hoppe agreed, adding that Epic has three strong arguments:

• Google's developer agreements are anti-competitive
• Google restrains competition within two separate markets, including the distribution of apps to Android users and the market for payment processing solutions for content inside Android apps
• Google's conduct is aimed at retaining its monopoly

However, Hoeg noted that Google's restrictions are "not absolute" in the same way Apple's are, which may well be in Google's favour. Even so, the legal expert observes that this is "a tough case to predict fully."

In 2021, Epic faced Apple in a California court but was largely unsuccessful with its antitrust claims, winning only one of ten counts in the judge's ruling: a ban on Apple's anti-steering practices. Both companies appealed against the ruling, with the matter currently in the hands of the Supreme Court.

Hoppe told GamesIndustry.biz: "It seems unlikely that the result will be much different – if at all – from the Epic vs Apple decision, which is of course still in the appeals process."

Google has previously asked the courts not to connect its own dispute with Epic to the Apple case, and Hoeg predicted the 2021 trial won't have as much impact as some might think.

"I do not expect the Apple case to control the Google outcome though certainly Google will be pulling some positive language from that decision regarding the right of the store owner to receive some compensation for access," he said.

Hopper disagreed, adding: "The outcome of the Apple case should have a significant influence, as the facts of the two cases are very similar."

On the first day of the trial, Google insisted its 30% share of all transactions is "a market fee, not a monopoly fee."

Meanwhile, in its opening statement, Epic Games accused the tech firm of using a "bribe or block" strategy to prevent competition on Android.

Epic Games filed a lawsuit against Google in the wake of Fortnite's removal from the Google Play store in 2020. As with Apple's App Store, the game was pulled after Epic introduced a hotfix that enabled players to buy V-bucks directly from the developer, avoiding the 30% cut Google takes from all microtransactions.

Epic responded with its antitrust lawsuit, with Google later countersuing for breach of contract.

You can follow the biggest news from the case here.