Why We Have Juries, Antitrust Edition

Because when juries look at anti-competitive and blatantly unfair behavior, they don't refer to Robert Bork's morally bankrupt theories on competition, they convict Google, while the judge in the Apple case decided that because there were no consumers involved, no harm and no foul.

It also did not help Google's case that they, as they have done many times before, systematically destroyed evidence:

Epic Games has won its antitrust battle against Google.

The case was heard by the United States District Court for the Northern District of California. As The Register has reported, the matter tested Epic's allegations that Google stifles competition by requiring developers to pay it commissions even if they use third-party payment services, and paid some developers to secure their exclusive presence on the Play store.

The case commenced in early November and on Monday a nine-member jury found in Epic's favor.

………

In [Epic Games CEO Tim] Sweeney's telling, the jurors heard "evidence that Google was willing to pay billions of dollars to stifle alternative app stores by paying developers to abandon their own store efforts and direct distribution plans, and offering highly lucrative agreements with device manufacturers in exchange for excluding competing app stores."

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The dispute started in 2020 when Google ditched Epic's mega-hit Fortnite from the Play store after the game's developer implemented third-party payment options for in-game purchases – circumventing Google Play’s facilities for such payments. Google asserted Epic's actions contravened its terms and conditions. Epic fought back with its antitrust argument.

As the dispute unfolded, Google seemingly conceded by introducing a scheme called user choice billing that allowed some apps to access third-party payment services. But Google still charged commission on those payments, arguing that the cost of operating its Play store justified the charges.

This has also led to a settlement between Google and a gaggle of plaintiffs in a related antitrust suit:

Google is to pay $700 million and overhaul some policies to settle the Play Store antitrust lawsuit launched by US states and consumers.

The September settlement, made public this week, includes $630 million that Google will pay into a fund to be distributed for the benefit of consumers, and $70 million is headed to a fund to be used by the states.

The lawsuit was initially lodged against Google in 39 jurisdictions, according to the settlement [PDF], before 50 states, the District of Columbia, and two territories decided to join "because they believe it will enhance competition in the relevant market and properly redress consumers' injuries."

The crux of the case was the allegation that Google entered into anti-competitive contracts with OEMs and mobile service providers to stop other app stores from being preloaded on Android devices. This meant consumers were forced to use the Google Play Store. According to the allegations in the settlement, this enabled Google "to extract enormous sums from consumers" through the 30 percent cut the Chocolate Factory demands from every purchase.


The terms of the settlement are broad. As well as paying the money, Google will have to stump up for an Independent Compliance Professional (ICP) to monitor the company's activities for the next five years.

It must also continue to allow sideloading of apps and third-party app stores for at least seven years and maintain Android OS support for those third-party app stores. It must also not enter into exclusivity deals with OEMs for at least five years. 

It's a good start.