Proceedings in the legal dispute between Epic Games and Apple have bogged down in Australia and won’t reach a courtroom until 2024.
A Monday ruling from the nation’s federal court ruled that because Google and Epic are essentially arguing over the same issues, it makes no sense for Epic and Apple to air their grievances separately, as scheduled for November 2022.
Unlike most competition cases, a large amount of data on actual consumer behavior will be available
Epic and Apple had previously told the court that they would not be ready by November, leading Judge Nye Perram to push the hearing back to 2023. Epic and Google, meanwhile, had told the court that they wouldn’t be ready until late 2023 or early. 2024.
Perram considered the assessment to be optimistic and therefore provided 18 weeks from March 2024 to hear the two cases.
But the judge also fears that the cases will be very difficult to manage, because both essentially deal with the same problem: if the Apple App Store and the Google Play Store reduce competition, as Epic claims by excluding the game from Epic Fortnite after he bypassed their payment. diets. Perram therefore thought that one case might resolve the issues raised in the other.
“For example, if in the Apple case, Epic proves correct and the iOS application distribution market consists of the provision of distribution services to application developers on the iOS platform, it necessarily implies that the App Store does not compete in games with the Google Play Store,” he wrote. “Having made this finding, could it then be concluded in the Google case that the market for the distribution of Android applications is in fact a market of bilateral transaction platforms providing services to consumers and developers and that the platforms compete with each other?”
Due to the significant potential for such collisions, Perram cannot yet decide how best to hear the cases. He offered the following options:
- The two cases will be consolidated into one case and heard together, the evidence in one being evidence in the other;
- The two cases will be heard together but will retain their separate identities;
- The two cases will be heard in order, with the parties in each case not permitted to participate in the other;
- The two cases will be heard in order, with the parties in each case permitted to participate in the other to the extent of common issues;
- The two cases will be heard sequentially, but by some mechanism all common issues will be tried together; or
- One of the cases will be reassigned to another judge and heard separately with or without the right to participate in the other case.
Lawyers representing Google and Apple are happy that the nature of the hearing remains undecided at this time.
“The best approach is to manage the two cases in tandem towards a trial and, again, we know, to deal with the many procedural problems at that time. In other words, let’s wait and see” , wrote Justice Perram.
In the background are Epic’s cases against Apple and Google in other jurisdictions – particularly cases that are expected to come to US courts in 2023.
Such a complex case heard in mid-2024 may not produce a decision until much later that year, or even 2025. Whatever decision is reached will of course make a difference, but can also be considered as a possible precedent. to be taken into account in other countries. jurisdictions.
Judge Perram also believes the case will be landmark, for the following reasons:
“Unlike most competition cases in this Court, a large amount of data about actual consumer behavior will be available in this litigation. For example, in the Apple case, Apple was allowed to discover by Epic the behavior of Fortnite players at the time the game was banned from the iOS platform. The purpose of this discovery is to lay the groundwork for a claim that Fortnite players, following its removal from the platforms Android and iOS, are likely to have simply moved to play on another platform such as PlayStation or Xbox.
“The data on what these users actually did exists and will be reviewed by Apple (there are believed to be approximately 400 million users). This opens up a new perspective in competition cases for economic witnesses.”
Google, meanwhile, has more Play Store issues to challenge in other countries. India’s competition regulator has reportedly ruled Play Store’s payment requirements are anti-competitive, while South Korea is already examining whether Google has done enough to comply with its law requiring third-party payment options and plans to make a decision this week. ®