Epic and Match’s antitrust case against Google heads to a jury trial on November 6


A date has been set for a jury trial in a major antitrust case against Google involving its alleged abuses of power in the Android app market. Fortnite maker Epic Games and dating app giant Match Group, joined by more than three dozen state attorneys general, have accused Google of unfairly taking advantage of its market dominance and harming competition through of its Google Play Store terms and practices. In particular, the plaintiffs take issue with the fees Google charges on app sales and in-app purchases, as well as the control Google has over the distribution of Android apps in general. The case will now proceed to a jury trial on November 6, 2023, a judge in the Northern District of California has ruled.

Epic Games began its journey to sue app store giants Apple and Google in 2020 when it introduced a direct Fortnite payment option to its iOS and Android apps, leading to that Apple and Google boot the mobile game from their respective app stores.

Epic then sued both companies for antitrust abuses. Apple largely won its case, but both sides appealed the ruling, as Epic still wants Apple liable for anti-competitive practices, while Apple did not want to change its terms to allow third-party payments, as as the District Judge had decided would be necessary. At an appeals hearing in November, the DoJ expressed concern about how the lower court had misinterpreted US antitrust law, a sign of the US government’s growing interest in the prosecutions of the technological giants. (The DoJ is also said to be in the early stages of filing its own lawsuit against Apple.)

Epic’s claims against Google, while very similar to Apple’s, must take into account the differences with Google’s app distribution platform. Unlike Apple, which prevents any other means of installing apps on iOS devices outside of its own App Store, Google allows apps to be sideloaded onto Android devices. In fact, Epic Games chose to distribute Fortnite to users outside of the Play Store when it launched on Android and after the game. was kicked out of Google Play for violations of terms.

To help its case, Epic has focused part of its antitrust claim on other alleged means Google used to maintain market power, including an internal program where Google paid game developers hundreds of millions of dollars in incentives to keep your games on Play Store. Google, however, maintains that the program is “proof that Google Play competes fairly with numerous rivals for developers,” it said.

Match Group had also sued Google over its Play Store practices, accusing Google of charging developers “exorbitant fees.” Google responded, saying that Match only wants to stop paying for the services it provides to the company as part of its platform.

Epic and Match filed to amend their complaint in October adding new antitrust counts to their case. Google in October asked the court dismiss those requests, saying, among other things, that the claims were filed too late. (The court granted the motion to amend the complaint in November.)

In a more recent hearing related to this case, a federal judge in California criticized Google for failing to preserve evidence of employee chats, after learning that internal communications took place on Google Chat, where messages were automatically deleted after 24 hours. Although employees can change the auto-removal setting, it appears that Google did not apply this setting to opt-in. U.S. District Judge James Donato asked the parties how many of the 260 Google employees who received a litigation hold notice had chosen not to preserve their chats, according to a report by Law 360.

The judge also threatened Google with a “substantial trial-related penalty” if the court found that trial-related evidence was destroyed.

“I think there is little doubt from the evidence I have heard so far that Google’s chat function may have contained evidence relevant … to this case,” the judge said.

Dkt 373 – 2022.11.10: Google Chat Deletions for TechCrunch on Scribd

Epic and Match’s lawsuit against Google also involves 39 attorneys general (38 states plus the District of Columbia). There is also a consumer class action seeking $4.7 billion in damages. Reuters reported. The amount is based on what the plaintiffs believe consumers were overcharged due to Play Store fees — increases developers passed on to their own customers. That number is likely to be disputed, as it’s unclear whether developers would have offered consumers additional savings if they could circumvent the fees, rather than keep the money.

The case is one of two notable antitrust complaints involving Google. The other is the Justice Department’s lawsuit against Google about their search engine practices. In it, the DoJ alleges that Google illegally maintains its position as the No. 1 search engine by paying billions of dollars to Apple, Samsung and other telcos to be the default search engine on mobile devices.

Epic Games and Google declined to comment on the new test date. Match did not respond to a request for comment.

Updated 01/19/23 at 3:30pm EST with comment rejections.

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