Epic Games Sues Google in Addition to Apple

Last week, Epic Games, Inc. filed suit against Google LLC, and its relatives and subsidiaries in the Northern District of California for alleged violations of California and federal antitrust law. Epic accuses Google of “unlawfully maintain[ing] monopolies in multiple related markets, denying consumers the freedom to enjoy their mobile devices—freedom that Google always promised Android users would have.”

Epic is a Maryland-based internet gaming company whose mission is “to create fun games we want to play and to build the art and tools needed to bring those games to life.” It created the game “Fortnite,” which the complaint describes as “a global cultural phenomenon” that recently reached over 350 million players.

The suit coincides with Epic’s filing of a similar complaint against Apple, Inc. for its policies related to the distribution of software applications and payment processing for digital content in Apple iOS mobile apps. Likewise, this suit targets Google’s allegedly anticompetitive restraints in and monopolization of “the market for the distribution of mobile apps to Android users and[,] [] the market for processing payments for digital content within Android mobile apps.”

Epic contends that as a direct result of Google’s conduct, it “has been unreasonably restricted in its ability to distribute its Android applications, including Fortnite, and to market a competing app store to the Google Play Store.” Google’s “supra-competitive taxes of 30% on the purchase price of apps distributed through the Google Play Store,” harms both app developers like itself, and consumers, the complaint alleges.

As to the distribution of Android apps, Epic claims that “Google has eliminated competition in the distribution of Android apps using myriad contractual and technical barriers.” These include “install[ing] itself as an unavoidable middleman,” by forcing app developers and consumers to use the Google Play Store to access Android content.

Google also prevents developers from circumventing the Google Play Store, Epic contends. By way of example, Epic points to a deal it struck with cell phone manufacturer, OnePlus. Their agreement would have enabled Epic’s games to be available on OnePlus phones through an Epic Games app. This would have “allowed users to seamlessly install and update Epic games, including Fortnite, without obstacles imposed by Google’s Android OS.” According to the complaint however, Google forced OnePlus to pull out, citing concern about Epic’s bypass of the Google Play Store.

The complaint also alleges that Google “raises app developers’ costs and consumer prices through its supra-competitive 30% tax on in-app purchases,” mirroring allegations made against Apple. If not for Google’s behavior funneling users to a sole online content store and charging a markup, there would be “significantly lower prices and a choice of payment processors,” Epic wrote.

On the same day it filed its complaints, Epic decided to offer Fortnite players the option to pay for in-app purchases through its own payment processor at a discounted price rather than through the Google Play Store. In “retribution,” the complaint avers, Google removed Fortnite from Google Play Store listings, preventing new players from downloading the game.

Epic contends that not only is Google violating the law, it is also breaking repeated promises “that Android would be the basis for an ‘open’ ecosystem in which industry participants could freely innovate and compete without unnecessary restrictions.” Epic seeks injunctive relief to end Google’s anticompetitive and monopolistic practices, but no monetary damages.

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