FTC advocates for relief that has lasting impact that stops illegal conduct, prevents recurrence, and restores competition.
The Federal Trade Commission has offered U.S. District Judge James Donato concepts to consider as he crafts remedies to restore competition in the wake of a jury’s verdict that the Google App Store is an illegal monopoly.
The FTC expressed itself in an amicus brief in the case brought by gaming giant and Fortnite producer Epic Games, which successfully argued that Google monopolized the markets for “Android app distribution” and “Android in-app billing services.” Epic prevailed, too, in claiming Google was committing unreasonable restraints of trade and other antitrust law violations through its:
- Developer distribution agreements.
- Mobile application distribution agreements and revenue sharing agreements with mobile device manufacturers.
- Side-deals with app developers to keep them from challenging the Google Play Store monopoly.
- Tying the use of Google Play Store to Google Play’s billing.
[Note: Jonathan Rubin wrote previously of Google’s argument that its store could not be considered a monopoly because of the strength Apple’s competing iOS and the Apple App Store. He also noted Epic’s claim that the evidence “demonstrates the urgent need for legislation and regulations that address Apple and Google strangleholds over smartphones.” See why Rubin wrote that “both sides [were] wrong.” More recently, Rubin wrote a piece for Law360 on remedies in the context of the Google Search case in which the company was found to be operating an illegal monopoly.]
Having presided over the trial that concluded in December 2023, Judge Donato is weighing the remedies. Epic Games’ wants the judge to order Google to:
1. Allow consumers to download apps from wherever they choose, whether from the Google Play Store, a third-party app store, another app, or the web. This would mean:
2. Allow consumers and developers to choose how they make and offer in-app purchases free from anticompetitive fees and restrictions. This would mean:
Epic also wants to be certain Google cannot not retaliate against it for challenging the app store practices.
FTC’s Theme of “Lasting Impact”
In its amicus brief, the FTC urged the court to craft relief that has lasting impact, saying it should:
Use its broad power to order a remedy that stops the illegal conduct, prevents its recurrence, and restores competition.
Provide injunctive relief to restore lost competition in a “forward-looking way” to ensure Google does not continue to reap rewards of operating the illegal monopoly.
Consider ”network effects, data feedback loops, and other key features of digital markets,” to “[H]elp ensure that potential competitors can overcome the advantages established digital platforms often gain, which include network effects and data incumbency. These advantages allow established digital platforms to lock-in users, advertisers, and other stakeholders, which create barriers to entry for future competition.”
Google raised concerns about being required to deal with competitors and to give non-customers free access to its application programming interfaces. Despite these concerns, the FTC said courts have wide latitude when crafting remedies to restore competition in a monopolized market.
Google, with annual revenues exceeding $300 billion, is also worried about the cost of complying with Epic’s proposed remedies. The FTC said the burdens of compliance are not an excuse. “Google’s monopolistic behavior has significantly harmed millions of users in the United States. Allowing monopolists to reap the rewards of illegal monopolization while avoiding the costs of restoring the competition that they unlawfully eliminated would undermine deterrence,” the FTC said.
Read more Google-related commentary by Jonathan Rubin:
- Remedy May Be Google’s Biggest Hurdle Yet in Antitrust Case,’ Jonathan Rubin Writes for Law360
- Act 2: Remedies in the Google Search Antitrust Case
- Google’s Default Distribution Deals Drive Search Monopoly Decision
- Verdict: Epic Games Proved Google Unlawfully Maintained Monopoly Over Android App Sales and Payments