By Mike Scarcella
(Reuters) -Lawyers for Alphabet’s Google and “Fortnite” maker Epic Games squared off before a U.S. appeals court in California on Monday, as Google tries to undo a jury verdict and a judge’s order forcing it to revamp its app store.
Google’s lawyer argued to the San Francisco-based 9th U.S. Circuit Court of Appeals that a trial judge made legal errors in the antitrust case that unfairly benefited Epic Games.
Epic accused Google in a 2020 lawsuit of monopolizing how consumers access apps on Android devices and how they pay for transactions within apps. The Cary, North Carolina-based company convinced a San Francisco jury in 2023 that Google illegally stifled competition.
U.S. District Judge James Donato ordered Google in October to restore competition by allowing users to download rival app stores within its Play store and by making Play’s app catalog available to those competitors, among other reforms.
The order is on hold as the 9th Circuit weighs Google’s appeal.
Attorney Jessica Ellsworth, representing Google, told the appeals court that the tech company’s Play store competes fiercely with Apple’s App Store, and that Donato unfairly barred Google from more broadly making that point.
Epic mostly lost a parallel antitrust lawsuit it filed in 2020 against Apple at the same time it sued Google. Apple was required to make some changes to its App Store, and the company is still fighting with Epic about the scope of those reforms.
Ninth Circuit Judge Danielle Forrest pushed back on Google. “There are definitely some clear factual differences from the Android world and the Apple world, and your arguments sort of brush that idea aside,” Forrest said.
Ellsworth also told the appeals court that a jury should never have heard Epic’s lawsuit because it sought to enjoin Google’s conduct, not collect damages.
Epic’s attorney Gary Bornstein asked the appeals court to reject Google’s arguments, telling the judges that the Android app market has been “suffering under anti-competitive behavior for the better part of a decade.”
Bornstein defended Donato’s injunction forcing Google to make changes to its Play store. He disputed Google’s statement that the changes would harm user privacy and security.
Microsoft filed a brief backing Epic, as did the U.S. Justice Department and Federal Trade Commission.
The 9th Circuit could issue a ruling later in the year. Its decision can be appealed to the U.S. Supreme Court.
(Reporting by Mike Scarcella; Editing by David Bario, Will Dunham, Cynthia Osterman and Marguerita Choy)
