SAN FRANCISCO (CN) — The tentative settlement announced this week between Google and 52 attorneys general representing every state, plus the District of Columbia and Puerto Rico, will not throw off the trial schedule for two other major antitrust suits brought by tech companies against Google.
Under the agreement announced Wednesday, attorneys for the states and Google sought to vacate their Nov. 6 trial date. While a federal judge weighs that option, attorneys representing Epic Games and Match Group said they still want to go to trial in antitrust lawsuits focused on Google Play's app store.
Details of the settlement with all 50 states are not yet public, but Brendan Glackin, an attorney representing the state of Utah, said it will have monetary and non-monetary terms, with a fund for relief of consumers.
Glackin said during a court hearing Thursday that both sides negotiated for months to get it done and are pleased with its terms.
“All 52 [attorneys general] think it’s a good deal for consumers,” Glackin told U.S. District Judge James Donato.
A coalition of bipartisan attorneys general sued Google in 2021, claiming the company used monopoly powers to favor its own apps over rival apps in the Google Play store on Android phones.
Donato said he will not vacate the Nov. 6 trial date for the states’ case just yet, however, because it is a complicated case that is already set for trial. He does not want to vacate the trial date and then have a complication derail the settlement, which would prompt the need for two trials, and “two sets of juries wrestling with the same facts.”
He asked the states to remain part of the suit for the time being, until he can get more details about the final settlement over the next 30 days.
“I'm nervous about banking on 52 elected officials," Donato said. "Not saying it’s an unreasonable gamble, but it’s a risk, and I need to know what would happen if 10% failed.”
Glackin and Google attorney Glenn Pomerantz said that even if some states dropped out, they would still find a way to settle terms. Neither expected any attorneys general to drop out of the settlement.
“None of us expect we won’t have a settlement to hand to you by Oct. 12,” Pomerantz said.
Donato insisted the settlement is not a guarantee.
“I would not be surprised at all if someone, somewhere, said ‘I cannot do this for the people in my state,’” Donato said.
If the settlement does fail, Donato said he will not delay the trial any further than Nov. 6 out of fairness to Epic and Match Group.
“They’re two parties that are locked and loaded and ready to go. I’m not gonna ask them to wait longer. If [the settlement] doesn’t work, you’re going on Nov. 6,” Donato told Glackin bluntly.
In its lawsuit, Epic Games claims Google's app marketplace unlawfully restricts competition by prohibiting the direct distribution of apps, instead requiring all apps to be installed through the Play Store.
Match Group, a former partner of Google, says Google illegally monopolizes the market for distributing apps by only offering apps that exclusively use its own in-app payment processing product, Google Play Billing, which charges supra-competitive prices.
Gary Bornstein, counsel for Epic Games, said there is “no question” that Epic still wants to go to trial despite the states’ settlement — but acknowledged Epic has had some preliminary talks with Google about settling. Epic is not seeking any monetary damages.
Any settlement would need to have three primary elements, Bornstein said. First, it would need to force Google to have openness in app distribution, rather than subject developers to strict controls. Second, it must allow for openness in payments and end the requirements to use Google’s payment services. Finally, Epic would need to see “strong anti-circumvention laws” so that Google cannot replicate the conditions that led to the lawsuit in the first place.
Epic Games CEO Tim Sweeney responded to the news of the states' settlement on Wednesday in a stream of posts on X, the platform formerly known as Twitter.
“We’re fighting for consumer and developer freedom to do business directly, free of monopoly stores, monopoly payment processors, and monopoly taxes,” he wrote.
“In-app transaction prices are inflated by up to 30% by Google fees, versus 3% payment processing fees in competitive markets," Sweeney said
While Epic is not part of the settlement, Sweeney wrote, “[i]f Google is ending its payments monopoly without imposing a Google Tax on third party transactions, we’ll settle and be Google’s friend in their new era.”
“But if the settlement merely pays off the other plaintiffs while leaving the Google Tax in place, we’ll fight on. Consumers only benefit if antitrust enforcement not only opens up markets, but also restores price competition. The Google Tax is antithetical to that competition,” Sweeney wrote.
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