147 F.4th 917
9th Cir.2025Background
- Epic released Fortnite on Android and iOS; after Epic implemented an alternate in‑app payment path (“Project Liberty”), Google removed Fortnite from Google Play and Epic sued Google for antitrust violations.
- Android is an open, licensable OS used by many OEMs; Google operates the dominant Play Store and required Play Billing for in‑app purchases and imposed default/friction that discouraged sideloading and rival app stores.
- A jury (Nov–Dec 2023) found Epic proved relevant product markets (Android app distribution; Android in‑app billing; geographic: worldwide excluding China) and that Google violated federal and California antitrust laws (monopolization, unreasonable restraint, unlawful tying).
- The district court held post‑trial remedy proceedings and entered a three‑year nationwide permanent injunction (Nov 1, 2024–Nov 1, 2027) barring certain preferential deals, requiring developers may inform users of alternatives, and ordering catalog‑sharing and app‑store‑distribution remedies with an eight‑month implementation window and a three‑person Technical Committee.
- Google appealed liability and the injunction; Ninth Circuit affirmed (ruling: Apple decision not preclusive here; denial of bifurcation and certain jury instructions proper; injunction supported by verdict and district‑court findings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusion from Epic v. Apple market finding | Epic: Apple ruling involved different commercial realities and theories of harm; Android markets require independent analysis | Google: Apple decision that Apple and Google compete in digital mobile gaming transactions precludes redefining the market here | Not preclusive — issues not identical; Android facts, OEM/licensing dynamics, and theories of harm differ, so market definition required independent analysis |
| Single combined jury trial / bifurcation | Epic: equitable antitrust claims and Google’s counterclaims are factually intertwined; jury demand on counterclaims preserved right to jury | Google: sought bench trial on Epic’s claims or bifurcation after earlier jury consent reversed | No abuse of discretion — Rule 38/39/42 and Seventh Amendment principles support single jury because factual overlap and Google’s prior jury demand bound it |
| Single‑brand aftermarket jury instruction | Epic: no theory/evidence of single‑brand aftermarket for Android | Google: should have instruction imposing burdens for single‑brand aftermarket proof | Denied — no evidence or framing of single‑brand aftermarket; Android ecosystem has multiple OEMs and alternative stores, unlike Apple’s vertical integration |
| Rule of Reason — cross‑market procompetitive benefits | Epic: focus on procompetitive justifications within the defined Android markets | Google: jury should consider procompetitive benefits across related markets (e.g., Apple competition) | Instruction limiting Step‑2 justifications to the relevant market was acceptable; cross‑market requirement unsettled by Supreme Court and, in any event, any error was harmless |
| Injunctive remedies (catalog access; app‑store distribution; reasonable fees; Technical Committee) | Epic: remedies restore competition, counteract network effects, allow rivals temporary access to Play Store catalog and distribution channels | Google: injunction imposes impermissible duty to deal / design new services, lacks causal nexus, is vague, raises security/IP and pricing concerns | Affirmed — district court within broad equitable discretion; duty‑to‑deal objections misplaced post‑liability; factual causation supported; remedies sufficiently specific; reasonable security fees and Technical Committee permissible |
| Standing and nationwide scope of injunction | Epic: suffered and faces threatened anticompetitive injury in defined Android markets; relief is redressable | Google: Epic lacks redressable injury for nationwide relief; injunction overbroad | Epic has Article III standing; nationwide injunction appropriate under Section 16 and supported by record and equities |
Key Cases Cited
- Ohio v. Am. Express Co., 585 U.S. 529 (2018) (two‑sided markets and network effects analysis)
- Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) (single‑brand aftermarket doctrine)
- Brown Shoe Co. v. United States, 370 U.S. 294 (1962) (submarkets may constitute relevant antitrust markets)
- Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) (right to jury for legal claims where factual issues overlap)
- Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) (priority of jury determination on legal issues intertwined with equity)
- Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) (refusal‑to‑deal context; limits on imposing duties to deal pre‑liability)
- Ford Motor Co. v. United States, 405 U.S. 562 (1972) (broad equitable powers to fashion antitrust remedies)
- Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) (purpose of private antitrust injunctive relief)
- United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir.) (remedial standard requiring causal connection to violation)
- National Society of Professional Engineers v. United States, 435 U.S. 679 (1978) (court may fashion injunctions affecting other rights to remedy antitrust violations)
- Image Technical Services v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir.) (remedy/pricing considerations in antitrust relief)
- Optronic Technologies, Inc. v. Ningbo Sunny Elec. Co., 20 F.4th 466 (9th Cir. 2021) (affirming broad Section 16 injunctive relief and remedial principles)
- Int’l Salt Co. v. United States, 332 U.S. 392 (1947) (courts should not assume a violator will relinquish fruits of violation)
- La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867 (9th Cir. 2014) (injunction vacatur for insufficient factfinding on key considerations)