Google hopes to speed up the resolution of its antitrust legal battle with Fortnite maker Epic Games, Match Group, and state attorneys general. In a new filing, Google’s legal team is now asking the court to dismiss several plaintiffs’ arguments regarding the nature of the App Store’s business, revenue-sharing agreements, and other App Store-related ventures in a partial motion for summary judgment.
According to Google, it believes the court should now have enough information on hand to make decisions on a few of the plaintiffs’ claims before taking the case to trial, saying those items do not violate antitrust law. If the court agrees with Google’s position, the trial will still move forward because other claims will still need to be argued in court.
Google specifically wants a court ruling on five key claims that appear to be central to the plaintiffs’ ability to prove anti-competitive behaviour.
You want the court to reject the argument that Google’s developer distribution agreement is illegal because it prohibits distribution by other app stores. Google counters this by saying that it has no legal obligation to distribute to other app stores, and notes that most Android devices come preloaded with more than one app store. In addition, it notes that consumers can install additional app stores from a web browser.
“Android is the only mobile platform that allows for multiple app stores,” a Google spokesperson said in a statement. “In fact, most Android devices ship with two or more app stores pre-installed, and consumers can install others. Epic, Match Group, and state attorneys general ignore the openness and choice Android and Google Play offer, and we look forward to taking our case in court.” .
Another argument you want to dismiss centers on “Project Hug”, a program run by Google designed to incentivize Android game developers to keep their games on the Google Play Store. The plaintiffs argued that Google quietly paid game developers millions of dollars in incentives as part of this initiative, later known as the “Apps and Games Velocity Program”. Epic Games claimed the program came about because Google was afraid other developers would follow suit after it exclusively released Fortnite for Android outside of the Play Store through its installer. Presumably, Google was also concerned that Epic might strike other pre-install exclusivity deals with OEMs like Samsung to cut its revenue split.
The program itself has been so successful that Google has been able to strike deals with a number of developers, including Activision Blizzard, to keep their games in the Play Store, previous filings said.
However, Google argues that Project Hug was not an anti-competitive move, but rather mischaracterized by the plaintiffs. It says the program provided developers with benefits and early access to Google Play users when developers released new or updated content, but it did not prevent developers from creating competing app stores.
The company is also fighting claims about revenue-sharing agreements with wireless carriers, saying they are outside the statute of limitations. Google says the agreements expired more than four years ago, so they should be dismissed.
In addition, Google claims that the AGs and Consumer Class could not show that Google hurt competition by selling app subscriptions and in-app purchases to consumers. For this reason, consumers should not be able to recover any of these alleged overcharges, Google says.
The ultimate claim focuses on the tie – or the claim that in order to purchase one product, the buyer also had to purchase a different (or tied) product. The plaintiffs argued that Google Play and Google Play’s billing services are illegally linked together, but Google says this is not true. Instead, it argues that Play Billing Services is not a separate product. It also states that more than 90% of the apps on Google Play are free and developers pay nothing when they are downloaded.
The new push for a partial summary judgment comes shortly after a ruling last month that Google’s failure to preserve some of its messages for discovery warranted penalties. Prosecutors have successfully established that Google employees tend to turn off chat history in internal discussions, in an effort to destroy sensitive communications related to the case. The Justice Department recently pointed to the same problem in its own antitrust investigation. The judge gave the plaintiffs’ attorneys until April 21 to provide an amount of the legal fees they are seeking as part of the penalties, for a start.
Google earlier requested a postponement of the trial and was refused.
Comment has been requested from Epic Games and we will update if one is available.