Google: “Any harm Epic has suffered is not irreparable and is of its own making”

Shortly after midnight Pacific Time, Epic Games and Google filed with the United States District Court of the Northern District of California their joint case management statement in preparation of next Thursday's case management conference in San Francisco (this post continues below the document):

20-10-02 Epic v. Google Joi... by Florian Mueller

It would be an exaggeration to say that Google is stalling, but Epic is naturally more interested in getting its day(s) in court at the earliest opportunity. Even Epic realistically knows that its antitrust litigation against Google is going to take longer than its case against Apple the same district. Epic Games v. Apple was deemed related to a couple of other cases, especially the old Pepper case, pending before Judge Yvonne Gonzalez Rogers on the other side of the Bay Bridge. In the Pepper case, the Supreme Court had to resolve the question of antitrust standing before the case could even go to trial. Now Judge Gonzalez Rogers seeks to try and adjudicate those cases swiftly. But Judge James Donato over in San Francisco is still basically just getting started with this.

Google will bring a motion to dismiss, which would be the earliest procedural stage at which the court could reject Epic's complaint. Epic asks the court to separate the motion-to-dimiss processes in Epic's case from the class actions. I believe we're going to see that pattern over and over: Epic, which has vast resources compared to class action law firms and has enlisted some of the best antitrust lawyers of the United States, is the anti-Apple and anti-Google plaintiff now, and doesn't want any delays, distractions, or dumbing-down to result from mixing its case too much with the cases that are just about money (particularly for those class action lawyers).

What Epic also asks the court to do is to let discovery start even while Google's motion to dismiss will be pending. Google, however, would like the court to adjudicate its motion to dismiss first. Epic argues that discovery should be stayed in that situation only if, as the same district court held in another case (In re Valence Tec. Sec. Litig.) in 1994, a defendant makes a strong showing of a presently deficient complaint and, therefore, is likely to succeed on a motion to dismiss. Epic doesn't see that here, as its complaint "extensively details Google's anti-competitive behavior."

Without taking a position here and now on whether or not Google's conduct truly is "anti-competitive," I do agree with Epic that its complaint doesn't appear deficient. It's hard to imagine the complaint would be thrown out, and even a dismissal without prejudice (allowing Epic to further improve it) doesn't appear likely at this stage.

Epic's proposed schedule envisions the trial to start on February 28, 2022. Google has not put forward an alternative schedule and merely complains that Epic's lawyers made this proposal without making enough of an effort to discuss the overall schedule with Google.

Epic wants this case to go to trial relatively soon and claims to be suffering irreparable harm because of Google having thrown Fortnite out of the Google Play Store. But just like Apple, Google views this as a self-inflicted wound:

"Google also has not retaliated against Epic, any harm Epic has suffered is not irreparable and is of its own making."

So far, Epic has neither brought nor announced a motion for a preliminary injunction against Google. By contrast, Epic sought and obtained--though just over Unreal Engine and not Fortnite--a temporary restraining order against Apple, and a decision on its motion for a preliminary injunction can come down anytime now (the PI hearing was held on Monday and didn't go too well for Epic).

Even Epic's own proposed schedule--which is probably too ambitious for the court to adopt--would mean that the Google trial will take place about seven months after the Apple trial. If Epic believes it's suffering irreparable harm during all of that time, it would appear logical for Epic to bring a PI motion against Google as well.

There are, however, two differences:

• While Epic argues that access to the Google Play Store is key, it can't make the "essential facility" kind of argument it made against Apple, as Google allows sideloading, and there are alternative Android app stores such as the ones operated by Samsung (in the filing, Google notes that "the Samsung Galaxy Store [...] comes preloaded on the most widely used Android devices"), Huawei, and Amazon.

• Epic's analysis may very well have shown that it's going to be even harder to persuade the court of the merits of its case against Google. As for the differences between the legal theories and fact patterns in the two cases, let me refer you to an earlier post (my most popular post on the "AppRising" so far).

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