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In its first detailed argument to the San Francisco-based 9th US Circuit Court of Appeals, Google said the trial judge made legal errors that unfairly benefited the plaintiff, “Fortnite” maker Epic Games.
Requiring a “dramatic redesign” of Google Play and its mobile-device operating system Android will hurt app developers and consumers, Google said in its court filing.
Epic in a statement on Wednesday said Google was relying on “flawed arguments” that the jury rejected. “This meritless appeal is Google’s desperate attempt to avoid complying with the unanimous jury decision,” Epic said.
Google declined to comment beyond its court filing.
Epic’s 2020 lawsuit accused Google of monopolising how consumers access apps on Android devices and how they pay for transactions within apps. The Cary, North Carolina-based company persuaded a San Francisco jury last year that Google illegally stifled competition.
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Based on the jury’s findings, U.S. District Judge James Donato ordered Google in October to let users download rival app stores within Play and make Play’s app catalog available to those competitors, among other reforms. The order, which would bind Google for three years, is on hold pending review in the 9th Circuit.
Google told the appeals court on Wednesday that a jury should never have heard Epic’s lawsuit because it sought to enjoin Google’s conduct, not collect damages. It said Donato unfairly allowed Epic to tell jurors that Google and Apple are not competitors for app distribution and in-app payments.
The filing said Donato was wrong to issue an injunction affecting users and developers nationwide, not just Epic. Google said the order made Donato “a central planner responsible for product design.”
The 9th Circuit said it will hear oral arguments on February 3, with a ruling expected later next year.
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