Epic Games Files Amended Complaint in Google Play Store Antitrust MDL

Epic Games’ amended complaint against Google, revised as a matter of course, alleges that Google abuses its market dominance by charging  supracompetitive commissions for third-party developers’ games, like the plaintiff’s hugely popular “Fortnite.” Epic Games Inc.’s latest contentions come after the court rescheduled the July omnibus motion to dismiss hearing in view of Epic and other plaintiffs’ decision to amend in the San Francisco, California consolidated suit.

The newest iteration of the complaint explains how Google allegedly “changed its course of conduct, erecting contractual and technological barriers that foreclose competing ways of distributing apps to Android users, ensuring that the Google Play Store accounts for nearly all the downloads of apps from app stores on Android devices,” and provides specific examples. It also describes how Google broke its promise to keep its software “open source,” and it “entered into so-called Anti-Fragmentation Agreements … with Android mobile OEMs that have prevented them from creating Android forks for mobile devices and which prevent OEMs from modifying Android to offer competing app stores without restrictions.” 

The complaint details how Epic tried to circumvent the Google Play Store in 2018 by launching Fortnite on Android, but not on Google Play, making it available instead through a Fortnite Launcher app. The plaintiff also reportedly entered into a contract with Samsung, under which Samsung would make Fortnite available to users of Samsung devices via the Samsung Galaxy Store, an app distribution hub that traditionally performed poorly compared to Google’s.

The complaint features allegations that directors within Google flagged the behavior as a “contagion risk,” namely that creators of some of the most popular and profitable apps would go their own way and bypass the Play Store by directly distributing their own apps. Epic’s end run “struck fear into senior Google executives, not only because it meant the loss of 30% of revenues that would be generated by the Android version of one of the most popular apps in the world, but also because Epic was paving the way for other Android app developers to distribute their apps without relying on Google Play,” the complaint says. 

Then, the complaint explains in greater detail how Google allegedly executed a series of anticompetitive actions to prevent others from following suit, leading to downstream effects in the Android app distribution market. Epic’s six Sherman Act claims remain, as do the California Cartwright Act and Unfair Competition Law causes of action.

According to the parties’ latest case management statement, Utah will share a copy of its amended complaint with Google by the end of this week. Motion to dismiss briefing is set to conclude on November 2 and a hearing is scheduled for November 18.

Meanwhile, Epic awaits a decision from Judge Yvonne Gonzalez Rogers in its parallel case against Apple regarding its choke hold on app distribution in the iOS market.

Epic is represented by Faegre Drinker Biddle & Reath LLP and Cravath, Swaine & Moore LLP.

Bartlit Beck LLP and Kaplan Fox & Kilsheimer LLP are co-lead counsel for the proposed class in In re Google Play Consumer Antitrust Litigation.

Hagens Berman Sobol Shapiro LLP and Hausfeld LLP are co-lead counsel for the proposed class in In re Google Play Developer Antitrust Litigation and attorneys for Peekya App Services Inc.

Google is represented by Morgan, Lewis & Bockius LLP and O’Melveny Myers LLP.