Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Google granted brief stay of permanent injunction in Play Store case, (Oct 21, 2024)

By Peter Reap, J.D., LL.M.

The stay, with an exception, is pending the Ninth Circuit’s resolution of stay requests.

In the multidistrict litigation involving claims by Epic Games against Google for monopolizing Android app distribution, the federal district court in San Francisco has denied Google’s request for a stay pending completion of the appeal to the Ninth Circuit of the permanent injunction entered by the court earlier this month, but has granted Google a partial stay of the permanent injunction, with the exception of paragraph 8 of the injunction, which is not stayed, pending the Ninth Circuit’s resolution of the stay requests Google filed there. The court reasoned that “Google has not demonstrated under Nken v. Holder, 556 U.S. 418, 434 (2009), that a stay is warranted, especially with respect to likelihood of success on the merits and the public interest.” Paragraph 8 of the injunction provides that: “For a period of three years ending on November 1, 2027, Google may not condition a payment, revenue share, or access to any Google product or service, on an agreement with an OEM or carrier not to preinstall an Android app distribution platform or store other than the Google Play Store” (Epic Games, Inc. v. Google LLC, No. 3:20-cv-05671-JD (N.D. Cal. Oct. 18, 2024)).

On October 7, 2024, the court entered a three-year permanent injunction against Google in connection with the jury verdict in favor of Epic Games, Inc. Because the jury unanimously found Google unlawfully monopolized the Android App distribution and in-app billing services markets on Android devices, the court enjoined Google LLC from engaging in various revenue sharing, payment conditioning, and Google Play Billing tying conduct for a period of three years, in the United States. To address network effects, the injunction also provided for third-party Android app stores to access the Google Play Store app catalog to offer the Play Store apps to their users. In a separate order entered on the same day, the court provided the reasons for the permanent injunction to be entered in Epic Games, Inc. v. Google LLC et al., Member Case No. 20-cv-05671-JD, and also resolved Epic’s equitable claims under California’s Unfair Competition Law.

In December 2023, Epic Games, Inc. (Epic), the maker of online video game Fortnite, prevailed at jury trial on its Section 2 Sherman Act monopolization claims against Google, Inc. (Google) in ongoing multidistrict antitrust litigation at the federal district court in San Francisco. The jury found Google unlawfully monopolized the market for Android App distribution and the market for in-app billing services on Android devices. The jury found these two markets to be worldwide only with the exception of China. Other plaintiffs consolidated in this multidistrict litigation include a consumer class; the Attorneys General of 38 states and the District of Columbia; and a group of Match Group LLC entities. They all alleged that Google illegally monopolized Android app distribution by engaging in exclusionary conduct that harmed them in different ways.

In 2021, the Judicial Panel on Multidistrict Litigation (JPML) centralized nine actions pending in California and the District of Columbia, involving Google’s alleged monopolization of the market for distribution of applications (apps) to Android mobile device users through the Google Play Store, for pretrial proceedings in the U.S. District Court for the Northern District of California. However, an action concerning Google’s alleged conduct in the market for online display advertising services, which involved the process of placing ads on web pages, was excluded.

The litigation is now on appeal to the Ninth Circuit.

Companies: Epic Games, Inc.; Google LLC

Cases: Antitrust CaliforniaNews