IP Law Daily, TECHNOLOGY/INTERNET—9th Cir.: Injunction upheld in suit against Google over removal of Fortnite from Play Store, (Aug 1, 2025)

By Jeffrey May, J.D.

A jury verdict in favor of Epic Games finding that Google violated federal and state antitrust laws in Android app distribution and in-app billing services markets, and an injunction intended to restore market competition, stand.

A three-year, nation-wide injunction imposed on Google—developer of the Android operating system and operator of the Google Play Store—following a jury’s finding that the company engaged in monopoly maintenance in the markets for Android app distribution and Android in-app billing services was within the district court’s discretion to craft equitable antitrust remedies. 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 thereby precipitating the suit, 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. 24-6256 (9th Cir. July 31, 2025)).

Market definition. At the outset, the appellate court tackled the dispute between Google and Epic over “diametrically opposed views” on the issue of market definition in the case. First, Google’s argued for issue preclusion on the ground that the market definition in Epic’s suit against Apple was preclusive in the litigation against Google. That argument was rejected. Google pointed to a finding in the Apple litigation, which was filed on the same day that Epic filed its suit against Google, that Apple and Google were competitors in the market for “digital mobile gaming transactions.” That finding was upheld by another Ninth Circuit panel in 2023. However, the market definition in that case did not “preclude an independent analysis of the very different relationship between Epic and Google, the relevant submarket in the Android platform, or the distinct market-definition issues in the two suits,” according to the appellate court. “The Google trial focused on gaming within the Android ecosystem.” Google’s preclusion argument failed due to the absence of an identical issue, in the appellate court’s view.

Google also took issue with the district court’s decision not to instruct the jury on single-brand aftermarkets. The district court did not commit error on this issue because the markets for Android app distribution and in-app payment systems were not single-brand aftermarkets, and a theory on single-brand aftermarkets was not proposed during trial.

Rule of reason analysis—competitive benefits in related markets. Another jury instruction ruling questioned on appeal concerned to what extent a jury can consider cross-market procompetitive benefits under rule of reason analysis. At issue was an instruction to the jury that it, if Epic proved Google’s conduct caused substantial harm to competition in a relevant market, then the jury should decide “whether Google has justified its conduct by proving that its conduct was reasonably necessary to achieve competitive benefits for consumers in that relevant market (emphasis in original).” Because there is not well-settled caselaw on the issue, the appellate court concluded that it was not error for the district court to reject Google’s call to instruct the jury to also consider procompetitive benefits in related markets. “In its effort to cast this case as a Google-versus-Apple struggle for market share, Google tries to sidestep the focus of the case presented to the jury,” the appellate court explained.

Bifurcation. Google argued on appeal that the district court erred in holding a single jury trial. The appellate court found no abuse of discretion in declining Google's request for bifurcation on the eve of trial. Google asked for a bench trial on Epic’s antitrust claims but maintained its demand for a jury trial on its counterclaims. The district court described the move to seek bifurcation as a “complete about-face.” The appellate court concluded that the antitrust claims were “intertwined” with Google’s counterclaims. Thus, rejection of the bifurcation request stood. It did not address arguments that Google failed to effectively withdraw its prior consent to a jury trial on Epic’s equitable claims.

Validity of the permanent injunction. Lastly, the appeals court held that the three-year, nationwide permanent injunction imposed on Google was valid, and it rejected the challenge to Epic’s Article III standing to seek a nationwide injunction. The injunctive relief imposed on Google was supported by the jury’s verdict as well as the district court’s own findings.

In particular, Google took issue with two remedies that were intended to the address the consequences of Google’s anticompetitive conduct: (1) the catalog-access remedy that required Google to “permit third-party Android app stores to access the Google Play Store’s catalog of apps”; and (2) the app-store distribution remedy “prohibit[ing] the distribution of third-party Android app distribution platforms or stores through the Google Play Store.”

Citing a friend-of-the-court brief filed by the Biden-era Department of Justice Antitrust Division and FTC, the appellate court took the position that its review must account for “the particular characteristics of digital markets, which can allow monopolists that achieved or maintained dominance through exclusionary conduct to perpetuate entry barriers and maintain monopoly power long after that conduct has stopped.”

The appellate court concluded that both remedies were with the district court’s authority. Further, the appellate court rejected Google’s causation arguments with respect to these two remedies. The catalog-access remedy was not an impermissible “duty to deal,” as Google argued. Further, the appellate court disagreed with the notion that there was no finding of a causal connection between Google’s anticompetitive conduct and the company’s competitive advantage in the form of network effects. Google’s causation argument with respect to the app-store distribution remedy also was rejected.

Intellectual property and security concerns. The lower court adequately considered intellectual property and security concerns in formulating the relief, according to the appellate court. Google had contended that the district court overlooked these interests for non-parties. With respect to IP concerns, Google flagged the catalog-access remedy in the injunction. In its friend-of-the-court brief, the government said that Google did not “explain why it should be excused from a good-faith effort to implement the catalog-access remedy in manner that adequately protects third-party IP rights.” Google argued for an opt-in approach. In the appellate court's view, the opt-out mechanism adopted by the court “will provide developers with a mechanism for opting out of inclusion in catalog access for any particular third-party Android app store.” This approach was deemed sufficient to protect third-party IP rights. As for security interests, the district court also adequately considered the concerns. For instance, it established a technical committee to review and resolve technical security issues, the appellate court pointed out. Objections to the formation of the technical committee also were rejected by the appellate court.

The Case is No. 24-6256.

Judge: McKeown, M.

Attorneys: Gary A. Bornstein and Christine Varney (Cravath, Swaine & Moore, LLP) for Epic Games, Inc. Jessica L. Ellsworth and Johannah Cassel-Walker (Hogan Lovells, LLP) for Google LLC.

Companies: Epic Games, Inc.; Google LLC; Apple, Inc.

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