Google has urged the U.S. Supreme Court to review a case being brought by Epic Games over Google's Play Store policies, telling the justices a sweeping injunction issued in the case defies precedent by turning a court in California into a "central planner" for Android mobile devices.
Google LLC's petition, filed Monday, comes after the high court refused the company's request earlier this month to pause parts of the nationwide injunction while it appeals the order and Epic Games Inc.'s underlying jury trial win.
The order requires Google to allow downloads of rival app stores in the Play Store and to give alternative stores access to the Play Store catalog of apps, among other things.
The petition contends that the order defies "the fundamental antitrust rule" that judges make for poor "central planners" by appointing a judge in San Francisco as "superintendent" of the markets for mobile apps and purchases on all Android mobile devices in the United States.
"The injunction was entered at the request of a single private plaintiff, Epic Games, yet it compels Google to change its conduct toward over half-a-million non-party app developers — even though both lower courts refused to even rule on whether Epic has Article III standing to seek such a broad injunction," Google says.
The petition says the high court reiterated its rule about judges being poor central planners less than five years ago in its 2021 decision in NCAA v. Alston . Here, Google says, the order requires it to create a mechanism giving the Play Store's catalog of millions of apps to rival app stores and to create infrastructure to distribute those stores through the Play Store.
"That is akin to a court mandating that Wal-Mart provide its entire product catalog to Kohls, Dollar General, and Macy's, and letting those stores set up shop on Wal-Mart's sales floor," the petition argues.
The district court Wednesday refused to extend a deadline for Google to begin complying with parts of the injunction, including measures allowing developers to provide links in their apps to outside payment methods. The parts of the order requiring the distribution of rival app stores and access to Play's catalog are set to go into effect next summer.
The bid for high court review is the latest chapter in years of litigation initiated by Epic, maker of the popular Fortnite video game, over restrictions on Android and Apple devices that allegedly block competition from rival app stores and require use of the tech giants' own in-app payment systems, where they collect commissions from the developers.
Epic sparked the disputes in 2020 by including links in Fortnite that allowed users to make purchases outside the app, prompting Google and Apple Inc. to remove the game from their stores for violating their policies.
The Ninth Circuit affirmed the jury verdict in the case against Google on July 31, backing findings that Google monopolized the Android app-distribution market, along with a three-year injunction from U.S. District Judge James Donato requiring Google to open the Android platform to more competition from rival app stores.
The high court petition argues that the injunction imposes "extraordinary duties" on Google forcing it to deal with app store competitors, by requiring it to provide them with Google's catalog of apps and then to distribute the stores in its own store. Google said the Ninth Circuit allowed these remedies because it found they could help diminish Google's competitive advantages even though its advantages were not a product of the alleged conduct.
"Thus, in the Ninth Circuit, once a company has been adjudged to violate antitrust law, the court may strip the company of any competitive advantage, even if that advantage was lawfully gained," the petition says.
Google argues the appeals court also wrongly concluded that Supreme Court precedent sharply curtailing when companies have a "duty-to-deal" with competitors does not apply to remedies, only liability findings, despite the Alston decision saying otherwise.
"Indeed, the primary reason this court held that Sherman Act liability does not flow from a refusal to deal with rivals is that courts are ill-suited to impose or enforce such a remedy," the company adds.
Google argues that the Ninth Circuit also wrongly held that Epic had no burden to prove it had standing for each of the remedies ordered by the district court, which the petition says is particularly troubling because the remedies impact more than a hundred million consumers and hundreds of thousands of app developers.
That Epic failed to prove standing for the remedies is not a close call, Google contends since it currently has no apps in the Play Store and has not offered evidence of any future plans to distribute apps in the store.
"Left uncorrected, the Ninth Circuit's approach would enable private antitrust plaintiffs to seize control of entire markets, without any need to establish that its requested relief redresses any ongoing injury to itself," the petition says.
In addition to the injunction, Google's high court petition also challenges the underlying jury verdict finding that Google's app policies violated federal antitrust law. While Google says it argued strenuously at trial that its app policies are intended to help Android remain competitive with Apple, the district court instructed the jury that it could hold Google liable without finding there were less restrictive ways for it to achieve its goals.
The Ninth Circuit followed its own precedent when affirming the jury instructions, but Google argues that precedent splits with the Second, Sixth and Tenth circuits.
"This case presents an ideal opportunity to resolve this longstanding split and clarify that under the rule of reason, the plaintiff must show that there is a less restrictive alternative to achieve the defendant's procompetitive purposes," the petition says. "The erroneous instruction here, moreover, gutted Google's trial defense that the challenged conduct was vital to Google's ability to compete with Apple."
Google contends the "crux" of the case is competition between Apple and Android and the different approaches they take to their app ecosystems. While Apple offers a "walled garden," Google says it competes with a more open system that makes it harder to provide security and a seamless experience.
The petition points to Epic's case against Apple, where U.S. District Judge Yvonne Gonzalez Rogers found after a bench trial in California that Apple's policies did not violate federal antitrust law. The judge in the Apple case recognized the policies were a form of lawful competition with Google, the petition notes.
"In this case, however, the Ninth Circuit affirmed a verdict holding Google liable for the very policies designed to allow Google to effectively compete with Apple," Google states. "The court then affirmed a sweeping injunction compelling Google to create services specifically for its competitors and alter its billing and other policies as to all developers, not just Epic."
In the Apple case, the judge did find that rules preventing developers from steering users to outside payment methods violated California state law. The Supreme Court declined petitions from both Apple and Epic contesting aspects of that case after the Ninth Circuit largely affirmed the decision.
Apple is appealing to the Ninth Circuit again after Judge Gonzalez Rogers found the tech giant violated an order blocking the anti-steering rules by imposing new fees and restrictions on developers.
A representative for Epic declined to comment Thursday. Representatives for Google did not immediately respond to a request for comment.
Epic Games is represented by Gary A. Bornstein, Antony L. Ryan, Yonatan Even, Lauren A. Moskowitz, Justin C. Clarke, Michael J. Zaken and M. Brent Byars of Cravath Swaine & Moore LLP, Paul J. Riehle of Faegre Drinker Biddle & Reath LLP, and Kevin Russell and Daniel Woofter of Russell & Woofter LLC.
Google is represented by Glenn D. Pomerantz, Kuruvilla J. Olasa, Justin P. Raphael, Jonathan I. Kravis and Dane P. Shikman of Munger Tolles & Olson LLP, Brian C. Rocca, Sujal J. Shah, Michelle Park Chiu and Leigha M. Beckman of Morgan Lewis & Bockius LLP, Reedy C. Swanson, Jessica L. Ellsworth, Natalie Salmanowitz, Johannah Cassel-Walker and Katherine B. Wellington of Hogan Lovells, and Neal K. Katyal of Milbank LLP.
The case is Google LLC et al. v. Epic Games Inc., case number 25-521, in the Supreme Court of the United States.
Oct 30
Deal Summary
