December 13, 2023
A jury verdict finding Google liable for monopolising two Android app markets may be vulnerable to reversal due to conflicting precedent in Epic Games’ litigation against Apple, according to some antitrust experts.
After three hours of deliberations on Monday, a federal jury in California sided with Epic Games and determined that Google illegally monopolised Android app distribution and in-app purchases in a global market that excludes China.
Google has already signalled it will appeal against the verdict and University of Pennsylvania law school professor Herbert Hovenkamp says it may prevail because the nine-member jury defined the relevant antitrust market in a manner that two federal courts have already rejected in Epic Games v Apple.
In that case, the US District Court for the Northern District of California Judge Yvonne Gonzalez Rogers rejected Epic’s definition of a “single-brand” aftermarket after concluding Epic had failed to demonstrate “significant” switching costs for and a lack of consumer knowledge that Apple’s App Store is the only place to download apps on iOS.
The US Court of Appeals for the Ninth Circuit had affirmed that conclusion in April.
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Cohen Milstein Sellers & Toll partner Daniel McCuaig said Google will probably lean heavily on precedent from the Apple cases but cautioned that Google would have to satisfy the high standard of demonstrating a clear error for the jury’s finding of facts on matters like the relevant antitrust market.
He questioned how consumers could be expected to make an informed decision about these products.
“How could consumer purchasing decisions discipline either Apple or Google away from walling in its garden when there’s no daylight between them?”