Google won't get second chance before Ninth Circuit in Epic Games antitrust loss

(CN) — The Ninth Circuit Court of Appeals on Friday denied Google’s request for a rehearing or a new hearing before a larger panel of 11 judges of the federal appellate court after the technology colossus lost its appeal in the antitrust case brought by Epic Games.

The three-judge panel unanimously rejected Google’s petition for a rehearing and no judges of the entire court requested a vote to decide whether the case should be heard en banc.

The ruling leaves only the U.S. Supreme Court as Google’s last hope to overturn a 2023 trial decision and court order in favor of Epic Games, the creator of the hugely popular Fortnite game, that affirmed the Google Play app store and its billing services constituted an illegal monopoly.

“We are disappointed with the Ninth Circuit’s decision and we believe the injunction will undermine the security and privacy of users,” a Google spokesperson said. “We are reviewing our options for appealing to the U.S. Supreme Court. Protecting users and the Android ecosystem remains our top priority.”

In July, the Ninth Circuit panel concluded that the injunction levied against Google was supported by both the jury’s verdict and the lower court’s findings.

“These remedies and their scope are supported by the record and the nature of the market, and we uphold them along with the liability verdict and the entire injunction.” U.S. Circuit Judge Mary Margaret McKeown, a Bill Clinton appointee, wrote for the panel.

The panel said its decision couldn’t be further from the chaotic, fast-paced gameplay of Epic’s star game, Fortnite.

“In the world of adrenaline-fueled survival that epitomizes the video game Fortnite, winners are decided in blazes of destruction and glory,” McKeown said.

“By contrast, the outcome of this case — centered on Fortnite’s developer, Epic Games, and the Google Android platform — turns on longstanding principles of trial procedure, antitrust and injunctive remedies.”

The panel said Google “misses the mark” in challenging Epic Games’ standing to seek nationwide injunctive relief, criticizing it as an attempt to cash in on the controversy over such injunctions recently addressed by the Supreme Court.

“Google’s framing departs from the case law, and the scope of a permanent injunction following a finding of antitrust liability is hardly comparable to that of a preliminary injunction on a constitutional question,” McKeown said.

The panel also rejected Google’s claims that a decision in Epic Games’ lawsuit against Apple should have prevented Epic from defining the market differently in this case, saying the issues weren’t identical, nor was it decided in the Apple case.

“The difference in the market-definition issues is the death knell for Google’s argument,” McKeown said.

The panel ultimately confirmed the lower court did not abuse its discretion in proceeding with a single jury trial in 2023 on Epic’s equitable claims and Google’s damages counterclaims. Nor, it said, did the district court commit any errors in the way it gave jury instructions at trial.

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