9th Circuit affirms injunction against Google in Fortnite monopoly case

Google has lost its appeal of a market-correcting injunction won by the maker of Fortnite. The July 31 Ninth Circuit ruling upholds a jury verdict that Google violated antitrust law, and an injunction that requires Google to unwind its monopolization of Android app distribution.

A jury had found that Google violated California antitrust law by rewarding developers who place their games on the Google Play Store, discouraging downloads from third-party pay stores, and taking a 30% cut from Google Play Store purchases.

Epic Games, the developer of the online video game Fortnite, attempted to build out its own app distribution store, but was facing limitations due to Google’s tactics. After joining the Google Play Store in 2020, Epic Games secretly inserted code into Fortnite that removed Google’s 30% cut for in-app purchases. In response, Google removed Fortnite from the Google Play Store in August 2020. Epic Games sued, and on Dec. 11, 2023, a jury found that Google violated California and federal antitrust law. Northern District of California Judge James Donato placed an injunction against Google on Oct. 7. 

The nine-point injunction, which sunsets Nov. 1, 2027, prohibits Google from requiring a cut of Play Store purchases, or giving benefits to developers in exchange for using Google Play Billing or the Google Play Store. The injunction sunsets on Nov. 1, 2027. 

Google appealed the injunction, arguing that the jury verdict should be overturned, that the injunction requires Google to assist its competitors, that a lesser injunction would have worked better, and that Epic Games did not prove it had standing to be granted a nationwide injunction. “Providing competitors access to the catalog of apps approved by Google for the Play store would require Google to create entirely new infrastructure to serve as the backend administrator for any number of third-party app stores, including developing and writing code to make millions of apps in Play’s catalog appear to be available in those other stores (when in reality they are designed for, approved by, and available through Play), refreshing and regularly updating the metadata for these millions of apps as developers make changes (which is a common occurrence), and creating a technical capacity for Play to install and update apps via third-party storefronts,” Google wrote in its appellate brief.

The Ninth Circuit wrote that Google’s issues with the injunction were largely not appealable issues.

“The thrust of Google’s argument is that the district court failed to explain why it did not adopt certain modifications proposed by Google and did not consider ways to redress Google’s anticompetitive agreements without imposing unnecessary constraints. For starters, just because Google didn’t get something that it proposed is no basis to upend the injunction. The district court did not blindly adopt all of Epic’s proposals either, and instead crafted an injunction that responded to the evidence. The court followed our precedent by using the parties’ proposals to tailor a remedy that would “terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future,” the ruling says.

Ninth Circuit Judge M. Margaret McKeown wrote the opinion, which Judges Danielle Forrest and Gabriel Sanchez joined.

Read the ruling here.