Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC weighs in on proposed modifications to injunction in Epic v. Google, (Jan 23, 2026)

By Donielle Tigay Stutland, J.D.

The FTC shares concerns regarding whether the proposed modifications are consistent with the public interest.

The FTC filed a brief as amicus curiae to discuss whether the proposed modifications in connection with Epic Games and Google's joint motion to modify the permanent injunction are narrowly tailored to address the changed circumstances and will still serve the public interest. The three-year injunction was issued after a jury found Google liable for antitrust violations in Android app distribution and in-app billing markets in July 2025. The injunction came following a jury’s finding that Google had engaged in monopoly maintenance in the markets for Android app distribution and Android in-app billing services. The U.S. Court of Appeals in San Francisco affirmed the verdict in favor of Epic Games, whose Fortnite video game was removed from the Play Store, and upheld an injunction that included so-called “catalog sharing” and “app-store distribution” provisions intended to remedy Google’s antitrust violations (In re: Google Play Store Antitrust Litigation, No. 3:21-md-02981-JD (N.D. Cal. Jan. 21, 2026)).

The FTC’s amicus brief recommends that the court apply scrutiny to ensure that any injunction modifications serve the public interest. Specifically, the FTC noted, that it “does not take a position on whether the court should grant the underlying motion.” Instead, the FTC emphasizes that it shares the court’s initial concerns regarding “whether the proposed modifications are consistent with the public interest in free and unfettered competition, which the antitrust laws are designed to protect[,]” “whether material circumstances have changed to warrant a modification,” and “whether the injunction as modified by the parties would adequately redress the network effects of Google’s anticompetitive conduct.”

Background. The suit was brought by Epic after Google removed Fortnite from the Play Store for noncompliance with rules of service. Epic had embedded code into its app’s software so that players could bypass Google and Apple payment-processing systems which then charged a 30% commission Google and Epic, as part of a comprehensive negotiated settlement, propose significant modifications to the permanent injunction.

The proposed modifications to the injunction include requiring that Google Play Billing be featured along-side other in-app payment options, allowing Google to charge fees for various services (capped at specified percentages), loosening the restrictions on required preinstallation of the Google Play Store, revising the provisions on link outs within Android apps, and more.

Extraordinary remedy. FTC begins its brief by asserting that modifying an injunction under Rule 60(b)(5) is "extraordinary" and requires showing the injunction is "no longer equitable" due to significant changes in facts or law. The parties asserted that their comprehensive settlement agreement is a significant change in circumstances, allowing the parties to settle their various disputes and avoid further litigation regarding implementation of the permanent injunction. However, the FTC argues that it is unclear whether the parties’ contingent settlement, under the circumstances surrounding this case, renders application of the permanent injunction “no longer equitable.

Here, the FTC outlines most relevant circumstances as: (1) the proposed modified injunction is inextricably linked to the terms of the parties’ private settlement, which may not account for the public interest in restoring competition and (2) the Court has been asked to facilitate a contingent settlement between the parties by modifying a permanent injunction, which was entered following a jury verdict and was upheld on appeal. The FTC urges the Court to consider the extent to which privately beneficial terms in the comprehensive settlement could have induced Epic to accept modifications that would not necessarily serve the public interest in competition.

Under Rufo v. Inmates of Suffolk County Jail, parties asking the Court to modify or vacate an injunction must demonstrate “a significant change in factual conditions or in law,” and then the Court must “consider whether the proposed modification is suitably tailored to the changed circumstance[s].” Changes based on Rufo typically involve external, unforeseen obstacles or public harm, and the FTC argues that is not the case here. The FTC urges the Court to hold true to the “original objective of its permanent injunction—the restoration of competition in markets adversely affected by Google’s anticompetitive conduct as the mechanism to remedy Epic’s claims.”

Public Interest. Next, the FTC argues that the court should consider all the circumstances to assess the effect of the proposed modifications on the public interest. The brief highlights issues in competition that may arise for smaller players under the modifications. Details the FTC, under the proposed Registered App Stores remedy, rival Android app stores may still face significant barriers to getting on users’ phones if Google can exclude them from the Play Store. It is unclear how accessible, as a practical matter, users will find the website-based Registered App Store installation process under the proposed remedy. Additionally, it is also unclear how rival app stores will be able to overcome Google’s network effects without the robust catalog of apps that the catalog access remedy would provide.

The brief also posits that the court should consider whether eliminating the catalog access and app store distribution remedies would have significant competitive implications. Although the proposed Registered App Stores remedy would last for six years, may well reduce some implementation disputes, and would eventually provide an Android operating system feature to download certified third-party app stores from external websites, the FTC points out that it may fail to restore meaningful competition to the app distribution market. Under the proposed Registered App Stores remedy, rival Android app stores may still face significant barriers to getting on users’ phones if Google can exclude them from the Play Store.

The brief also recommends the court consider whether modifying the prohibitions against requiring google play billing on in-app purchases would have significant competitive implications. While the permanent injunction and the proposed modified injunction prevent Google from excluding all alternative in-app payment methods, which should help foster some level of competition in the Android in-app billing market. The proposed modification, however, prohibits developers from excluding Google Play Billing if an app offers users the option to complete digital transactions in app or through in-app links to external payment websites. And developers must show the alternative billing options and Google Play Billing side-by-side. According to the parties, this modified remedy “allows rival payment solutions to compete on the basis of price and other features.” In addition, the proposed modified injunction permits Google to charge services fees on transactions using alternative payment methods of up to 9% or 20%, depending on the type of transaction. The FTC asserts that these modifications may disadvantage certain developers, hinder competition and ultimately allows Google to retain monopoly powers.

The Case is No. 3:21-md-02981-JD.

Judge: Donato, J.

Attorneys: Christine A. Varney (Cravath, Swaine and Moore LLP) for Epic Games, Inc. Brian C. Rocca (Morgan, Lewis & Bockius LLP) for Google LLC, Google Ireland Ltd., Google Commerce Ltd., Google Asia Pacific PTE. Ltd. and Google Payment Corp.

Companies: Epic Games, Inc.; Korean Publishers Association; Korea Electronic Publishing Association; PangSky Co., Ltd.; Google LLC; Google Ireland Ltd.; Google Commerce Ltd.; Google Asia Pacific PTE. Ltd.; Google Payment Corp.

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