Epic Games, Inc. v. Google LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: Google Play Store Antitrust No. 24-6256

Litigation

D.C. Nos.

______________________________

3:21-md-02981-JD

_

3:20-cv-05671-JD

EPIC GAMES, INC., a Maryland

Corporation,

OPINION

Plaintiff - Appellee,

v.

GOOGLE LLC; GOOGLE

IRELAND, LTD.; GOOGLE

COMMERCE, LTD.; GOOGLE

ASIA PACIFIC PTE, LTD.;

GOOGLE PAYMENT CORP.,

Defendants - Appellants.

EPIC GAMES, INC., Nos. 24-6274

25-303

Plaintiff - Appellee,

D.C. No.

v. 3:20-cv-05671-JD

2 EPIC GAMES, INC. V. GOOGLE LLC

GOOGLE LLC; GOOGLE

IRELAND, LTD.; GOOGLE

COMMERCE, LTD.; GOOGLE

ASIA PACIFIC PTE, LTD.;

GOOGLE PAYMENT CORP.,

Defendants - Appellants.

Appeal from the United States District Court

for the Northern District of California

James Donato, District Judge, Presiding

Argued and Submitted February 3, 2025

San Francisco, California

Filed July 31, 2025

Before: M. Margaret McKeown, Danielle J. Forrest, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge McKeown

SUMMARY *

[Antitrust

The panel affirmed a jury verdict and the district court’s

entry of a permanent injunction against Google in Epic

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

EPIC GAMES, INC. V. GOOGLE LLC 3

Games, Inc.’s antitrust lawsuit filed in response to Google’s

removal of Epic’s Fortnite video game from the Google Play

Store for noncompliance with its terms of service.

Google removed Fortnite from the Play Store after Epic

embedded secret code into the app’s software so that players

making in-app purchases would bypass the required

payment-processing systems by which Google then charged

30% commission.

The jury found that Epic had proven the relevant product

markets for Android app distribution and Android in-app

billing services and a relevant geographic market of

“worldwide excluding China.” The jury also found that

Google violated both federal and California antitrust law by

willfully acquiring or maintaining monopoly power in those

markets, unreasonably restraining trade, and unlawfully

tying use of the Play Store to Google Play Billing. The

district court entered a three-year injunction that prohibits

Google from providing certain benefits to app distributors,

developers, original equipment manufacturers, or carriers in

exchange for advantaging the Play Store.

The panel rejected Google’s claim that a decision in

Apple’s favor in a lawsuit Epic filed at the same time against

Apple precludes Epic from defining the market differently

in this case.

The panel held that the district court did not abuse its

discretion in proceeding with a jury trial on Epic’s equitable

claims and Google’s damages counterclaims.

The panel held that the district court did not abuse its

discretion in declining to give a single-brand aftermarket

jury instruction or in its framing of a Rule of Reason

instruction.

4 EPIC GAMES, INC. V. GOOGLE LLC

The panel held that the injunction was supported by the

jury’s verdict as well as the district court’s own findings.

COUNSEL

Gary A. Bornstein (argued), Christine Varney, Antony L.

Ryan, Wes Earnhardt, Justin C. Clarke, Lauren A.

Moskowitz, M. Brent Byars, Omid Nasab, Yonatan Even,

and Michael J. Zaken, Cravath Swaine & Moore LLP, New

York, New York; John C. Hueston, Sourabh Mishra,

Hueston Hennigan LLP, Newport Beach, California; Joseph

Reiter, Hueston Hennigan LLP, Los Angeles, California;

Paul J. Riehle, Faegre Drinker Biddle & Reath LLP, San

Francisco, California; Daniel Woofter and Kevin Russell,

Russell & Woofter LLC, Washington, D.C.; Thomas C.

Goldstein, Goldstein & Russell P.C., Washington D.C.; for

Plaintiff-Appellee.

Jessica L. Ellsworth (argued), Neal K. Katyal, Reedy C.

Swanson, and Natalie Salmanowitz, Hogan Lovells LLP,

Washington, D.C.; Johannah Cassel-Walker, Hogan Lovells

LLP, San Francisco, California; Katherine B. Wellington,

Hogan Lovells LLP, Boston, Massachusetts; Mackenzie D.

Austin, Hogan Lovells LLP, Los Angeles, California; Brian

C. Rocca, Michelle P. Chiu, Sujal J. Shah, and Leigha

Beckman, Morgan Lewis & Bockius LLP, San Francisco,

California; Glenn D. Pomerantz and Kuruvilla Olasa,

Munger Tolles & Olson LLP, Los Angeles, California;

Justin P. Raphael and Dane P. Shikman, Munger Tolles &

Olson LLP, San Francisco, California; Jonathan I. Kravis,

Munger Tolles & Olson LLP, Washington, D.C.; for

Defendants-Appellants.

EPIC GAMES, INC. V. GOOGLE LLC 5

David G.B. Lawrence (argued), Policy Director; Patrick M.

Kuhlmann, Nickolai G. Levin, and Daniel E. Haar,

Attorneys, Appellate Section; Spencer D. Smith, Counsel;

John W. Elias, Deputy Assistant Attorney General; Doha

Mekki, Acting Assistant Attorney General; Jonathan S.

Kanter, Assistant Attorney General; Antitrust Division;

United States Department of Justice, Washington, D.C.;

Mark Hegedus, Attorney; Synda Mark, Deputy Assistant

Director; Kelly Signs, Assistant Director; Shaoul Sussman,

Associate Director; Henry Liu, Director; Anisha S.

Dasgupta, General Counsel; Federal Trade Commission,

Washington, D.C.; for Amici Curiae the United States & the

Federal Trade Commission.

Amy R. Upshaw, Christopher C. Yook, and Jeffery S.

Spigel, King & Spalding LLP, Washington, D.C., for Amici

Curiae Gregory J. Werden & Luke M. Froeb.

Marc R. Lewis and Rina Plotkin, Lewis & Llewellyn LLP,

San Francisco, California, for Amici Curiae Information

Technology & Innovation Foundation and Roblox

Corporation.

Steven A. Hirsch, Ben Berkowitz, and Sara R. Fitzpatrick,

Complex Appellate Litigation Group LLP, San Francisco,

California; Scott A. Keller, Lehotsky Keller Cohn LLP,

Washington, D.C.; for Amici Curiae Chamber of Progress,

Computer & Communications Industry Association,

NetChoice, and Consumer Technology Association.

Scott A. Keller and Steven P. Lehotsky, Lehotsky Keller

Cohn LLP, Washington, D.C.; Drew F. Waldbeser,

Lehotsky Keller Cohn LLP, Atlanta, Georgia; for Amici

Curiae Antitrust Law Professors Thomas A. Lambert and

John M. Yun.

6 EPIC GAMES, INC. V. GOOGLE LLC

David C. Kiernan, Jones Day, San Francisco, California;

Koren W. Wong-Ervin, Jones Day, Washington, D.C.; Kelly

H. Rodriguez, Jones Day, Minneapolis, Minnesota; for

Amici Curiae Federal Antitrust Enforcers.

Jonathan Y. Ellis, McGuireWoods LLP, Raleigh, North

Carolina; Nicholas J. Giles and Joshua D. Wade,

McGuireWoods LLP, Richmond, Virginia; Brian Scarpelli,

ACT The App Association, Washington, D.C.; for Amicus

Curiae ACT The App Association.

Jonathan A. Patchen, Willkie Farr & Gallagher LLP, San

Francisco, California; Matthew Freimuth, Willkie Farr &

Gallagher LLP, New York, New York; Geoffrey A. Manne

and Daniel J. Gilman, International Center for Law &

Economics, Portland, Oregon; for Amici Curiae The

International Center for Law & Economics and Scholars of

Law and Economics.

Robert T. Smith and Neal S. Mehrotra, Katten Muchin

Rosenman LLP, Washington, D.C., for Amici Curiae

Computer Security Experts John Mitchell, Serge Egelman,

Nikia Borisov, Kevin Butler, Amit Elazari, Guofei Gi, and

Sharad Mehrotra.

Jack E. Pace III, Gina M. Chiappetta, and Daniel J.

Grossbaum, White & Case LLP, New York, New York;

Mark Davies, White & Case LLP, Washington, D.C.; for

Amici Curiae Law and Business School Professors.

Anthony P. Schoenberg, Christopher C. Wheeler, and Hilary

C. Krase, Farella Braun & Martel LLP, San Francisco,

California, for Amici Curiae Fyouture, Firecracker Software

LLC, Visual Blasters LLC, BetterTime Co., and Speeko,

Inc..

EPIC GAMES, INC. V. GOOGLE LLC 7

Matthew D. Field and Harley L. Geiger, Venable LLP,

Washington, D.C., for Amicus Curiae The Center for

Cybersecurity Policy and Law.

Calvin House, Gutierrez Preciado & House LLP, Pasadena,

California, for Amicus Curiae Civil Justice Association of

California.

John M. Reeves, Reeves Law LLC, St. Louis, Missouri; Curt

Levey, The Committee for Justice, Washington, D.C.; for

Amicus Curiae The Committee for Justice.

Allison W. Acker, Bass Berry & Sims PLC, Nashville,

Tennessee; Devin Watkins and Dan Greenberg, Competitive

Enterprise Institute, Washington, D.C.; for Amicus Curiae

Competitive Enterprise Institute.

Roy T. Englert Jr., Matthew M. Madden, and Aryeh

Mellman. Herbert Smith Freehills Kramer (US) LLP,

Washington, D.C., for Amici Curiae Former National

Security Officials and Scholars.

Aaron M. Panner, Alex A. Parkinson, Shunhe Wang, and

Jarrod A. Nagurka; Kellogg Hansen Todd Figel & Frederick

PLLC, Washington, D.C.; for Amicus Curiae Microsoft

Corporation.

Kathleen R. Hartnett, Cooley LLP, San Francisco,

California; Alexander J. Kasner and Jennifer L. Portis,

Cooly LLP, Washington, D.C.; Allison W. O'Neill, Cooley

LLP, San Diego, California; for Amicus Curiae Professor

Stephen I. Vladeck.

Jean-Claude Andre, Bryan Cave Leighton Paisner LLP,

Santa Monica, California; Eric P. Schroeder and Slade

Mendenhall, Bryan Cave Leighton Paisner LLP, Atlanta,

Georgia; Barbara A. Smith and Seth M. Reid, Bryan Cave

8 EPIC GAMES, INC. V. GOOGLE LLC

Leighton Paisner LLP, St. Louis, Missouri; Tyler S. Badgley

and Maria C. Monaghan, Chamber of Commerce of the

United States of America, Washington D.C.; for Amicus

Curiae Chamber of Commerce of the United States of

America.

Cory L. Andrews, Washington Legal Foundation,

Washington, D.C., for Amicus Curiae Washington Legal

Foundation.

David W. Kesselman and Wesley A. Sweger, Kesselman

Brantly Stockinger LLP, Manhattan Beach, California, for

Amici Curiae Professors of Law and Economics and the

American Antitrust Institute.

Christopher L. Lebsock, Hausfeld LLP, San Francisco,

California; YoungKi Rhee, We The People Law Group,

Seoul, South Korea; for Amicus Curiae STACO LINK Co.,

Ltd..

Lee A. Hepner and Laurel Kilgour, American Economic

Liberties Project, San Francisco, California, for Amicus

Curiae American Economic Liberties Project.

Alexander B. Aronson, Court Accountability Action,

Concord, Massachusetts, for Amicus Curiae Professor Paul

M. Collins Jr..

Mitchell L. Stoltz, Electronic Frontier Foundation, San

Francisco, California, for Amicus Curiae Electronic Frontier

Foundation.

Judd E. Stone II, Christopher D. Hilton, Ari Cuenin, Michael

R. Abrams, and Cody C. Coll, Stone Hilton PLLC, Austin,

Texas, for Amici Curiae Aptoide S.A. and One Store Co.,

Ltd..

EPIC GAMES, INC. V. GOOGLE LLC 9

OPINION

McKEOWN, Circuit Judge:

In the world of adrenaline-fueled survival that

epitomizes the video game Fortnite, winners are decided in

blazes of destruction and glory. By contrast, the outcome of

this case—centered on Fortnite’s developer, Epic Games,

and the Google Android platform—turns on longstanding

principles of trial procedure, antitrust, and injunctive

remedies.

In 2018, videogame developer Epic Games released its

immensely popular cross-platform game Fortnite as a

smartphone app. For two years, Epic sought to distribute the

game through direct mobile downloads from its website and

through Samsung’s Galaxy Store. In 2020, after Epic

“realized that Google Play was the only hope that [Epic] had

for actually reaching users,” Epic reluctantly decided to offer

the Fortnite app on both the Google Play Store (which

operates on the Android operating system) and the Apple

App Store (which operates on the iOS operating system).

Fortnite is offered as a free download; the game generates

revenue for Epic via players’ purchase of special in-game

features.

Shortly after Fortnite’s launch on the Apple App Store

and Google Play Store, Epic embedded secret code into the

app’s software so that players making in-app purchases

would bypass the required payment-processing systems by

which Apple and Google then charged 30% commission.

Epic dubbed these circumvention efforts “Project Liberty,”

part of its ongoing—and soon highly publicized—protest

against mainstream app stores’ restriction of developers’ and

users’ choices for app distribution and in-app billing.

10 EPIC GAMES, INC. V. GOOGLE LLC

Almost immediately, Google and Apple removed Fortnite

from the Play Store and App Store for noncompliance with

their terms of service. Epic responded by filing antitrust

suits against both Apple and Google. The two suits

proceeded separately. The suit against Apple was resolved

in Apple’s favor.

Epic’s suit against Google followed. After a 15-day trial

involving 45 witnesses, the jury found that Google had

violated federal and state antitrust laws in the markets for

Android app distribution and Android in-app billing

services. The district court held extensive post-trial

proceedings and then entered a permanent injunction against

Google to restore market competition. We affirm the jury’s

verdict and uphold the district court’s injunction. 1

Background

Smartphones have two key components: the physical

hardware and the operating system. The operating system

manages the interaction between the phone’s hardware

resources and separate software applications (or “apps”) like

TikTok and WhatsApp. Google and Apple own two popular

operating systems: Android and iOS, respectively. Apple’s

iOS system is tied to the Apple hardware and is designed to

prevent independent modification, creating a “walled

garden.” By contrast, Google’s Android system is publicly

available and free for anyone to access, modify, and

distribute. Google itself engineered and produced a line of

smartphones that run on the Android system. But in

1

In connection with these proceedings, we received amicus curiae briefs

from an array of interested parties, including federal agencies, nonprofit

organizations, corporations, and professional associations. The briefs

were helpful to our understanding of this case, and we thank amici for

their participation.

EPIC GAMES, INC. V. GOOGLE LLC 11

addition, Google also licenses Android to hundreds of

original equipment manufacturers (“OEMs”) that make

smartphones. Companies like Samsung and Motorola, for

example, negotiate licenses to have Android pre-installed

onto their products. As a result, Android runs on a variety

of smartphones that are not Google-brand devices. All non-

Apple smartphones sold worldwide, excluding China, use

Android.

Apps are offered and installed separately from the

operating system. But an app can only be installed on a

device if it is compatible with that device’s operating system.

Thus, iOS apps work only on Apple iPhones that run on iOS;

Android apps work only on Android smartphones. The

applicable operating system creates an “ecosystem” of app

development, distribution, maintenance, and security.

Google, in addition to owning and primarily developing

the Android operating system, owns and operates the Google

Play Store (“Play Store”), a platform for distributing apps to

Android users. The Play Store has an enormous catalog of

more than two million apps. In two-sided markets like this

one—where Android users and Android app developers (the

“two sides”) rely on the platform as an intermediary for user-

developer transactions—the platform benefits from

significant network effects wherein “the value of the services

that a two-sided platform provides increases as the number

of participants on both sides of the platform increases.”

Ohio v. Am. Express Co., 585 U.S. 529, 535 (2018). Users

are attracted to large catalogs, and developers are attracted

to large user bases.

Google magnified these network effects and entrenched

its dominant position in Android app distribution by its

intentional efforts to frustrate users’ access to and use of

12 EPIC GAMES, INC. V. GOOGLE LLC

alternatives to the Play Store, such as developer websites as

well as other Android app stores.

Although an Android app developer can enable potential

users to download its apps directly from a developer-specific

website (“direct downloading” or, as Google refers to it,

“sideloading”), Google’s Android operating system creates

“friction” that deters Android users from completing

downloads this way. First, Android’s default settings disable

direct downloading. Even those users savvy enough to

change the default settings must then click through a series

of “scare screens”—sometimes as many as 14—to complete

a direct download. Some of these screens notified the user

that the app was being downloaded from an “unknown

source,” that the software could harm their device, and that

the user was taking responsibility for any damage that might

result from completing the download. Android’s scare

screens do not reflect any security assessment of the

intended download sources; these screens appear whether

the intended download source is a trusted developer’s

website or a hypothetical “illstealyourinfo.com.” Thus the

“scare screens” operate as a deterrent to downloading apps

other than directly via the Play Store.

Efforts to download Fortnite illustrate the practical

import of barriers erected by Google. Android users had to

successfully navigate more than 15 steps to complete a direct

download of Fortnite. Such “friction” “degrad[ed] the

quality of the download experience” from websites like

Epic’s. Epic found that, of the Android users who initiated

the process to download Fortnite directly, 35% abandoned

the process after encountering Google’s “warning

messages.”

EPIC GAMES, INC. V. GOOGLE LLC 13

In its dealings with OEMs, Google also sought to

obstruct access to alternative app stores. Google’s mobile

contract, the Mobile Application Distribution Agreement

(“MADA”), effectively required Android OEMs to

preinstall the Play Store on the default home screen of their

smartphones. Google’s revenue-sharing agreements with a

“premier tier” of these OEMs had the added effect of making

the Play Store the only preinstalled app store on their phones.

And Google’s proposal to Samsung, denominated “Project

Banyan,” would have compensated an especially formidable

OEM/app-distribution competitor to “drive down” its app-

distribution market share and turn the Samsung Galaxy Store

into a throughway for more Play Store traffic. Samsung’s

representatives expressly understood that the purpose of

“Project Banyan” was to “[p]revent unnecessary

competition [with the] store.” As Epic’s expert testified

about these revenue-sharing arrangements, “these

provisions, this conduct, disincentivizes” OEMs from

competing with the Play Store.

When Epic suddenly posed a threat to the Play Store’s

dominance, Google went further still. In 2018, Epic initially

told Google that it would not be introducing an Android

version of Fortnite on the Play Store. Google feared that the

game’s off-Play launch could “legitimize” another Android

app store and create “contagion” leading other software

developers to leave the Play Store. To defend against that

scenario, Google initiated Project Hug: a series of special

agreements with 22 top game developers, including

Activision (creator of the popular video game Call of Duty),

under which the developers received cash payments and

other benefits not to launch on any Android app store other

than the Play Store.

14 EPIC GAMES, INC. V. GOOGLE LLC

Network effects, default settings and scare screens to

deter direct downloads, plus strategic deals to limit the use

of alternative stores proved a potent cocktail: As of 2020, the

Play Store accounted for 95% of all Android app downloads

in the United States, and more than 80% around the world

(excluding China).

Google leveraged its significant market share in app

distribution to maximize its profits from the Play Store. For

instance, all developers offering apps on the Play Store are

required by a Developer Distribution Agreement (“DDA”)

to process in-app purchases using Google Play Billing and

pay a hefty commission on nearly all in-app transactions. 2

As of 2021, the Play Store was turning a 71% operating

profit.

Convinced that Google was abusing its power in the

Android app distribution and in-app billing markets, Epic

sued Google shortly after Fortnite was removed from the

Play Store in August 2020 for violations under the Sherman

Act, California’s Cartwright Act, and California’s Unfair

Competition Law (“UCL”). Google counterclaimed for

breach of the DDA. Between 2020 and 2023, additional

claimants—other developers, consumers, and state attorneys

general—sued Google for antitrust violations. All these

related claims were consolidated into a single multidistrict

litigation.

In 2021, the district court decided that all jury-triable

issues common to the parties’ legal and equitable claims

would be decided in a single jury trial. In April 2023, the

2

Google originally set its 30% commission to match Apple’s service fee.

Seven months after Epic filed its lawsuit, Google introduced programs

that lowered the fee to 15% in limited circumstances.

EPIC GAMES, INC. V. GOOGLE LLC 15

court set a November 2023 trial date. But, between April

and November, every plaintiff other than Epic settled,

leaving for trial only Epic’s antitrust claims for equitable

relief and Google’s counterclaims for damages. Epic’s UCL

claims were held for later ruling by the court, per the parties’

joint submission.

On December 11, 2023, the jury returned a unanimous

verdict in favor of Epic. On the antitrust claims, the jury

found that Epic had proven the relevant product markets for

Android app distribution and Android in-app billing services

and a relevant geographic market of “worldwide excluding

China.” And the jury found that Google violated both

federal and California antitrust law by willfully acquiring or

maintaining monopoly power in those markets,

unreasonably restraining trade, and unlawfully tying use of

the Play Store to Google Play Billing. Although Google’s

counterclaims for damages initially were part of the trial,

during trial the parties withdrew these claims from the jury

and later settled them.

Remedies proceedings followed the trial, with extensive

briefing and two evidentiary hearings. On October 7, 2024,

the district court entered a permanent injunction and an

explanatory order that also resolved Epic’s UCL claim

(“Order re: UCL Claim and Injunctive Relief”). The three-

year injunction prohibits Google from providing certain

benefits to app distributors, developers, OEMs, or carriers in

exchange for advantaging the Play Store. It also mandates

that Google allow developers offering apps on the Play Store

to provide users with information about and access to

alternative app billing, pricing, and distribution channels.

Apropos of the claims, the injunction includes “catalog

sharing” and “app-store distribution” provisions. The first

16 EPIC GAMES, INC. V. GOOGLE LLC

requires that Google “permit third-party Android app stores

to access the Google Play Store’s catalog of apps,” and the

second requires Google to allow “the distribution of third-

party Android app distribution platforms or stores through

the Google Play Store.” Google was given eight months to

comply with the catalog sharing and app-store distribution

requirements. To review and resolve any issues that arose

during that implementation process, the injunction also

directed the creation of a three-person Technical Committee

comprising members selected by both parties. Google

appeals both the liability verdict 3 and the injunction. 4

Analysis

We begin with Google’s claim, which we reject, that the

decision in the Epic v. Apple litigation precludes Epic from

defining the market differently in this case. We then move

to the jury issues, confirming that the district court did not

abuse its discretion in proceeding with a single jury trial on

Epic’s equitable claims and Google’s damages

3

In addition to challenging antitrust liability, Google argues that the

UCL liability relies on the antitrust verdicts and thus rises or falls with

those claims. Not so. The UCL forbids not only “unlawful” but “unfair”

conduct, thus allowing for liability even when there is a failure to prove

an antitrust claim, as we held in Epic Games, Inc. v. Apple Inc., 67 F.4th

946, 1001 (9th Cir. 2023) (“Neither Apple nor any of its amici cite a

single case in which a court has held that, when a federal antitrust claim

suffers from a proof deficiency, rather than a categorical legal bar, the

conduct underlying the antitrust claim cannot be deemed unfair pursuant

to the UCL.”). Google’s attempt to tether the UCL claim to the antitrust

claims is “foreclosed by California law.” Id. at 1001. The UCL claim

survives independently of any antitrust liability.

4

Google filed a motion to stay the permanent injunction pending appeal.

The district court granted a partial stay pending our resolution of that

motion. The stay motion on appeal is denied as moot in light of our

decision.

EPIC GAMES, INC. V. GOOGLE LLC 17

counterclaims. Nor did the district court abuse its discretion

in declining to give a single-brand aftermarket jury

instruction or in its framing of the Rule of Reason

instruction. Finally, we affirm the district court’s injunction,

which was supported by the jury’s verdict as well as the

district court’s own findings.

I. The Epic v. Apple Litigation Findings Are Not

Preclusive

Market definition is a central and hotly contested aspect

of nearly every antitrust case. Little wonder, then, that the

parties have diametrically opposed views on this issue.

Google claims that the relevant market determination in

Epic’s prior suit against Apple binds Epic here, whereas Epic

maintains that there is no preclusive effect.

Reviewing de novo, we agree with the district court that

the market definition in Epic’s suit against Apple is not

preclusive in this litigation. Jacobs v. CBS Broad., Inc., 291

F.3d 1173, 1176 (9th Cir. 2002) (reviewing de novo district

court’s determination of preclusion). Google homes in on

the finding in Epic v. Apple that Apple and Google are

competitors in the market for “digital mobile gaming

transactions.” See Epic Games, Inc. v. Apple Inc., 559 F.

Supp. 3d 898, 921 (N.D. Cal. Sept. 10, 2021), aff’d 67 F.4th

946, 981 (9th Cir. 2023) (affirming on the issue of market

definition). 5 That single determination, however, does not

5

Google’s issue-preclusion argument bookended its advocacy before the

district court. Before trial, the district court determined that Google’s

preclusion argument was untimely and without “good cause excusing the

delay.” The court emphasized that the matter should have been raised

on summary judgment but concluded that issue preclusion was not

appropriate in any event. Google does not challenge these rulings on

18 EPIC GAMES, INC. V. GOOGLE LLC

preclude an independent analysis of the very different

relationship between Epic and Google, the relevant

submarket in the Android platform, or the distinct market-

definition issues in the two suits.

A. The Apple Litigation: Trial and Appeal

Filed on the same day as Epic’s case against Google,

Epic’s case against Apple proceeded first in time before

Judge Gonzalez Rogers in the Northern District of

California. The two parties offered competing definitions of

the relevant market, with Epic arguing for Apple’s total

monopoly power in “an antitrust market of one,” and Apple

proposing a broader market including “all digital video

games.” Apple, 559 F. Supp. 3d at 921.

The district court ultimately ascertained a market of

“digital mobile gaming transactions.” Id. at 921, 954–55,

1021–26. From there, the court found that Apple exercised

a “considerable” but not necessarily monopolistic level of

market power, in part because the company had to compete

with Google. Id. at 1030–32. These determinations

supported the conclusion that Apple was not liable on any of

the federal antitrust causes of action, though the court found

that Apple violated California’s UCL and entered an

injunction against Apple’s use of anti-steering provisions to

keep consumers from transacting outside the App Store’s

payment processing systems. Id. at 1052–59.

Epic and Apple cross-appealed, and we affirmed on all

substantive issues. Apple, 67 F.4th at 966. Though we

agreed with Epic that the district court erred in categorically

rejecting its proposed iOS foremarket, we deemed that error

appeal. Google’s timely post-trial motion under Rule 52 preserved the

preclusion issue.

EPIC GAMES, INC. V. GOOGLE LLC 19

harmless in light of Epic’s failure to demonstrate consumers’

lack of awareness about the alleged aftermarket restrictions.

Id. at 978, 979, 980–81. Importantly, “Apple offered non-

pretextual, legally cognizable procompetitive rationales for

its app-distribution and [billing] restrictions.” Id. at 985.

And, as we held, “[e]ven assuming Apple has monopoly

power, Epic failed to prove Apple’s conduct was

anticompetitive.” Id. at 999. Apple’s challenges to the UCL

ruling and remedy fell short. We further held that federal

antitrust doctrine did not preclude liability for anti-steering

provisions under state law; that the district court did not

clearly err in finding that Epic had suffered irreparable harm;

and that a nationwide injunction did not constitute an abuse

of discretion “because the scope [wa]s tied to Epic’s

injuries.” Id. at 1002–03. We reversed only with regard to

Epic’s contractual obligations to pay attorneys’ fees. Id. at

1003–04. 6

B. Issue Preclusion Requirements Are Not Met

Google now seeks to preclude Epic’s suit in light of the

Apple judgment and decision. Issue preclusion requires that

“(1) the issue at stake was identical in both proceedings;

(2) the issue was actually litigated and decided in the prior

proceedings; (3) there was a full and fair opportunity to

litigate the issue; and (4) the issue was necessary to decide

the merits.” Love v. Villacana, 73 F.4th 751, 754 (9th Cir.

2023) (citation and internal quotation marks omitted).

Google’s preclusion argument fails at both the first and

6

On April 30, 2025, the district court issued an order finding that Apple

had failed to comply with the injunction and that “Apple’s continued

attempts to interfere with competition will not be tolerated.” Order

Granting Epic Games, Inc.’s Motion to Enforce Injunction, 4:20-CV-

05640-YGR, 2025 WL 1260190, at *1 (N.D. Cal. Apr. 30, 2025).

20 EPIC GAMES, INC. V. GOOGLE LLC

second steps because the market definition question was

neither identical to the issue in this case nor litigated and

decided in Apple. The difference in the market-definition

issues is the death knell for Google’s argument.

It is well established that the relevant market “can be

determined only after a factual inquiry into the ‘commercial

realities’ faced by consumers.” Eastman Kodak Co. v.

Image Tech. Servs., Inc., 504 U.S. 451, 482 (1992) (citing

United States v. Grinnell Corp., 384 U.S. 563, 572 (1966)).

This case-by-case inquiry underlies the principle that

relevant markets are not independent, freestanding entities

defined in a vacuum. Our sister circuits recognize that “the

nature of the claim can affect the proper market definition”

and counsel that courts “remember[] to ask, in defining the

market, why we are doing so: that is, what is the antitrust

question in this case that market definition aims to answer?”

United States Healthcare, Inc. v. Healthsource, Inc., 986

F.2d 589, 598 (1st Cir. 1993). Recently, we endorsed this

principle in concluding that the “market definition must be

relevant to the theory of harm at issue.” Teradata Corp. v.

SAP SE, 124 F.4th 555, 570 (9th Cir. 2024) (internal

quotation marks omitted).

It follows from the logic of Kodak and Teradata that the

market-definition issue in Epic’s two lawsuits was not

“identical” for the purposes of issue preclusion, because

Epic’s claims against Apple involved meaningfully different

commercial realities and theories of harm from its claims

against Google. In short, we conclude that “the issue at

stake” was not identical in the two cases.

To begin, the commercial realities are different. Apple’s

“walled garden” is, as the district court in Apple noted,

markedly different from Google’s “open distribution”

EPIC GAMES, INC. V. GOOGLE LLC 21

approach. 559 F. Supp. 3d at 1036–40. Google admits as

much, noting that “Android’s open philosophy offers users

and developers wider choices” than iOS does, even as that

openness “limit[s] Google’s ability to directly protect users

from encountering malware and security threats when they

download apps.” As a consequence of its business model,

Apple does not license iOS to other OEMs in the way that

Google licenses Android to Samsung, Motorola, and other

smartphone manufacturers. Indeed, because Apple

manufactures its own phones, Apple effectively has no

relationship with other OEMs. Apple’s “walled garden” also

creates different dynamics in app distribution channels.

Apple’s iPhones do not support any third-party app stores,

and iOS disables direct downloads of apps from the web.

See id. at 1005 (“Apple currently prevents direct distribution

from the web using technical measures.”).

The theories of harm in the two cases are also different.

Epic articulated theories of harm against Apple that it did not

bring against Google. Because Apple vertically integrates

its hardware, iOS operating system, and app store, a

consumer locked in through any one part of the stack is, in

effect, locked into the entire system. Therefore, numerous

Apple-unique product features were relevant to Epic’s

theory of harm—from the “stickiness” of iMessage to the

overall “speed and reliability provided by iPhones”—

because those features increased consumers’ switching

costs. Id. at 957–60 (“Apple’s evidence strongly suggests

that low switching between operating systems stems from

overall satisfaction with existing devices, rather [than] any

‘lock-in.’”); see also, e.g., 4:20-cv-05640-YGR, Dkt. #616

(Epic’s opening statement), p. 11‒13. Epic also complained

that Apple’s agreements with developers precluded Epic

from distributing or creating third-party app stores—conduct

22 EPIC GAMES, INC. V. GOOGLE LLC

not at issue in the Google litigation. At the time of trial, there

were no competing app stores on iOS.

The difference in the markets also led Epic to articulate

theories of harm against Google that were not brought

against Apple. For example, Epic alleged that Google’s

conduct—requiring OEMs to install Google Play on the

home screen of every device the OEM makes—had harmed

Epic. Because Apple does not license its operating system

to other OEMs, this type of alleged anticompetitive behavior

was simply not at issue in the Apple litigation. Epic also

alleged that Google made deals to keep other app stores off

OEMs’ home screens. Because Apple’s iPhones preclude

third-party app stores altogether, these strategic dealings

were not at issue. As Google’s attorney articulated in a 2023

hearing before the district court: “For . . . iPhones, there’s

only one App Store. There always has been only one App

Store. That’s not true in Android. So there’s a difference

that already exists, a fundamental difference, an important

difference for this case.” Nor—for much the same reason—

was there evidence in the Apple litigation of alleged

monopolistic agreements with app developers to refrain

from offering their apps on any other app store, or evidence

of Apple manipulating its operating system to deter direct

downloads.

These are not fringe issues. These are the issues that

formed the core of the market definition in each suit. As the

district court noted, “[Epic] took a wholly different approach

for the antitrust claims against Google, and offered wholly

different evidence about relevant markets than that offered

in the case against Apple.” Even Google’s own digital

markets expert did not initially seek to define a market

analogous, let alone identical, to the one that Apple sought

EPIC GAMES, INC. V. GOOGLE LLC 23

in Apple or the market defined by the district court in that

case.

It is of little consequence that Apple and Google were

previously found to compete in the market for “digital

mobile gaming transactions” in the Apple litigation. 559 F.

Supp. 3d at 921. The Google trial focused on gaming within

the Android ecosystem. That the markets in this case—for

Android app distribution and Android in-app billing—

overlap with or may constitute submarkets of the “digital

mobile gaming transactions” market does not make them

identical markets. Recognizing distinctions between

overlapping markets is not “inherently contradictory.” Olin

Corp. v. FTC, 986 F.2d 1295, 1301 (9th Cir. 1993)

(establishing a relevant submarket for chemical compounds

was not inconsistent with a broader market for pool

sanitizers).

This framing also conforms to the real-world experience

of overlapping markets and submarkets. For example,

McDonald’s might compete against Chick-fil-A in the fast-

food market yet not compete against Chick-fil-A in the

hamburger fast-food market (and instead compete with

Wendy’s, Burger King, Sonic, and In-N-Out Burger).

Although Google and Apple compete for mobile-gaming

downloads and mobile-gaming in-app transactions, they do

not compete in the Android-only app distribution and in-app

billing markets, where Google competes against Samsung,

Amazon, and others.

Google’s argument is further at odds with Section 2 of

the Sherman Act, which prohibits monopolization of

submarkets—“any part of the classes of things” forming

U.S. trade or commerce—as much as it prohibits

monopolization of broader markets. Ind. Farmer’s Guide

24 EPIC GAMES, INC. V. GOOGLE LLC

Publ’g Co. v. Prairie Farmer Publ’g Co., 293 U.S. 268, 279

(1934) (emphasis added). As the Department of Justice

(“DOJ”) Antitrust Division and the Federal Trade

Commission (“FTC”) emphasize in their amicus brief,

“[j]ust because parties compete in one market does not mean,

as a matter of law, that there cannot be a narrower or

overlapping market in which the parties do not compete.”

This lesson follows Supreme Court guidance that “within [a]

broad market, well-defined submarkets may exist which, in

themselves, constitute product markets for antitrust

purposes.” Brown Shoe Co. v. United States, 370 U.S. 294,

325 (1962). To conclude otherwise would effectively render

a court’s definition of a given market a universal ban on

antitrust action in any market within or overlapping that

market. Consistent with the Supreme Court’s interpretation

of the Sherman Act, we decline to hamstring antitrust

jurisprudence in this way.

At bottom, Google’s preclusion argument fails due to the

absence of an identical issue. 7 The Apple litigation involved

market realities and theories of anticompetitive harms that

were separate and distinct from those involved in this case.

Epic’s allegations against Google required an independent

analysis to determine the relevant market. And the harm-

7

Even if issue preclusion were available, we would review for abuse of

discretion the district court’s decision not to apply the doctrine. SEC v.

Stein, 906 F.3d 823, 828 (9th Cir. 2018). Despite the parties’ heated

debates over market definition, and the fact that the appeal in Apple was

decided on April 24, 2023, Google waited until less than six weeks

before trial to raise issue preclusion. Given that expert testimony and

other fact evidence on the critical issue of market definition had been

fully developed by that time, this delay amply supports the district

court’s exercise of its discretion to decline application of issue

preclusion.

EPIC GAMES, INC. V. GOOGLE LLC 25

specific market definition applicable here was not “actually

litigated” or “decided” in Apple. Love, 73 F.4th at 754.

II. Denying Google’s Motion to Bifurcate and Holding

a Jury Trial Was Not an Abuse of Discretion

Throughout the litigation, both sides repeatedly changed

their positions on the availability and propriety of a jury trial

and whether the trial should be bifurcated into separate jury

and bench trials. What remained constant was the district

court’s message that there would be one jury trial for all

common issues and that there was considerable overlapping

evidence on equitable and legal issues: “I have said from

Day One, there will not be multiple jury trials. It’s going to

be one and done for everything.” Just before trial was set to

begin, Google asked for a bench trial on Epic’s antitrust

claims but maintained its demand for a jury trial on its

counterclaims. Google now claims the court erred in holding

a single jury trial. We conclude that the district court did not

abuse its discretion in declining to bifurcate the trial and

holding a combined jury trial on both the legal and equitable

issues.

A. The Winding Road to the Jury Trial

Epic’s complaint against Google sought only injunctive

relief. In response, Google filed contract counterclaims

seeking damages and demanded a jury trial on all jury-triable

claims. Epic’s Answer to Google’s Counterclaims denied

Google’s entitlement to a jury trial.

During the discovery period, the parties had ongoing

discussions regarding the configuration of trial. For

example, as early as December 16, 2021, Epic suggested it

should have a partially separate trial from the other plaintiffs.

The district court rejected that approach.

26 EPIC GAMES, INC. V. GOOGLE LLC

The parties, which then included numerous plaintiffs,

eventually coalesced around the idea of a jury trial on

virtually all claims, including Epic’s antitrust claims. In

May 2023, the parties filed a Joint Submission Regarding

Trial Proposal agreeing “that all claims by all Plaintiffs are

triable to a jury” (except for certain state law claims) and that

Google’s counterclaims against Epic should be tried to the

same jury. At this stage, the litigation included plaintiffs like

Match that, unlike Epic, sought damages.

In July 2023, Epic and Match filed a motion to bifurcate

Google’s counterclaims and hold a separate trial on those

claims. Google opposed bifurcation, arguing substantial

overlap in evidence between its counterclaims and its

defenses against Epic’s antitrust claims. Siding with

Google, the district court denied the motion to bifurcate.

Prior to October 2023, as the litigation rolled on, some

plaintiffs settled with Google. On October 12, the States and

the putative consumer class settled, leaving only Match and

Epic asserting claims against Google. During a hearing that

same day, Google raised the prospect of a bench trial on

Epic’s claims if a settlement with Match was reached,

though Google reiterated its demand for a jury trial on its

counterclaims against Epic. The district court held a pretrial

conference on October 19 and, in its order on October 20,

confirmed the case would proceed by jury trial, directing the

parties to submit updated jury instructions by October 25.

On Halloween, less than two weeks later, Google alerted

the district court that it had settled with Match. The district

court immediately ordered briefing on the impact of the

settlement on the jury trial. Google’s Statement on a Non-

Jury Trial argued for a bench trial on Epic’s claims and

defenses. Google also stated it had offered to consent to a

EPIC GAMES, INC. V. GOOGLE LLC 27

bench trial on its counterclaims, but Epic declined to

consent. Given Epic’s refusal, Google thus sought

bifurcation, arguing its counterclaims should be tried to a

jury first, followed by a bench trial on Epic’s claims. Epic

argued for a jury trial on its antitrust claims based on

Google’s implied consent, Epic’s reliance on Google’s

earlier representations regarding a jury trial, how “factually

intertwined” the antitrust claims were with the jury-triable

counterclaims, and the prejudice Epic would face in altering

its “ongoing preparation of its case and witnesses” at the last

minute. On November 2, 2023, the district court denied

Google’s request for bifurcation.

The jury trial began on November 6, 2023. The jury

heard evidence regarding both Epic’s antitrust claims and

Google’s counterclaims. However, during the final stretch

of trial, the parties stipulated that Epic had violated the DDA

agreement with the Play Store by incorporating its own

payment solution into Fortnite during “Project Liberty” and

therefore Epic owed “$398,931.23 in fees that Google”

would otherwise have received. Thus, when instructed by

the district court on December 11, the jury was told not to

consider the counterclaims. On August 19, 2024, long after

the trial had concluded, Epic agreed to pay Google to resolve

the counterclaims.

B. The District Court Had Discretion to Deny the

Motion to Bifurcate

Because Google’s counterclaims were headed to the

jury, but Google wanted Epic’s claims and defenses tried to

the bench, Google’s Statement on a Non-Jury Trial is best

construed as a motion to bifurcate. In pressing for a

bifurcated trial, Google urged that a jury trial on Epic’s

antitrust claims was improper because Google had

28 EPIC GAMES, INC. V. GOOGLE LLC

withdrawn consent to a jury on those claims. That argument

runs into several roadblocks due to the intersection of three

federal rules of civil procedure: Rule 38(b)—Right to a Jury

Trial; Rule 39—Trial by Jury or by the Court; and Rule

42(b)—Consolidation; Separate Trials. Ultimately, under

the circumstances here, Google’s demand for a bench trial

fails because its claims are so factually intertwined with

Epic’s equitable claims.

Under Rule 38(b), a jury trial demand may be made “[o]n

any issue triable of right by a jury.” Fed. R. Civ. P. 38(b).

At the outset of the case, Google made a proper jury demand

on its counterclaims under Rule 38. The counterclaims

sought damages for alleged breach of contract, making them

quintessential legal claims triggering the right to a jury. See

Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477‒78 (1962).

About six months before trial, the parties jointly proposed

that all the plaintiffs’ federal claims and Google’s

counterclaims be tried to the same jury. Both Epic and

Google reiterated that position in the pretrial conference, as

reflected in the court’s October 20 pretrial order. That order

confirmed a jury trial and deadlines for submission of jury

instructions.

Having made a proper jury demand under Rule 38(b),

Google was bound by the strictures of the rule. Rule 38(d)

provides that such a demand “may be withdrawn only if the

parties consent.” Fed. R. Civ. P. 38(d) (emphasis added).

But here there was no consent. Although Google sought at

the last minute to withdraw its demand for a jury and try its

counterclaims to the bench, Epic was within its rights under

Rule 38(d) to decline to consent to this change.

Though Google emphasizes that it withdrew its consent

to a jury trial on Epic’s antitrust claims, its counterclaims

EPIC GAMES, INC. V. GOOGLE LLC 29

against Epic for damages remained subject to the earlier jury

demand. Importantly, the operative question under the

federal rules is whether a jury trial has been demanded for a

particular issue. Fed. R. Civ. P. 38(b) (“issue triable of right

by a jury”), (c) (“may specify the issues”), 39(a) (“all issues

so demanded”), (b) (“jury trial on any issue”), (c) (“try any

issue by a jury”). Although Rule 39(a) suggests that, once a

jury demand is made, the entire action is to be docketed as a

“jury action,” it also clarifies that a jury trial will be held on

the “issues so demanded,” and that the court can decline a

jury demand as to any issues on which it finds there is no

right to a jury on “some or all of th[e] issues.” Fed. R. Civ.

P. 39(a); see also Fed. R. Civ. P. 39(b) (providing that even

where a jury demand is not made, the court may “order a jury

trial on any issue for which a jury might have been

demanded”). Holistically, the civil rules implement the

constitutional right to jury trial on a claim-by-claim basis.

See Fed. R. Civ. P. 38 advisory committee’s note to 1937

amendment (stating Rules 38 and 39 preserve the Seventh

Amendment right to a jury). 8

8

Google’s citation to cases stating a party can unilaterally withdraw its

consent to a jury trial under Rule 39(c)(2)—which assumes an action not

triable of right by a jury—is inapposite, given Google’s jury demand on

the issues underlying both its counterclaims and Epic’s antitrust claims.

Additionally, in each of the cases cited by Google, by the time of trial,

all that remained were equitable issues. See FN Herstal SA v. Clyde

Armory Inc., 838 F.3d 1071, 1089 (11th Cir. 2016) (“When no right to a

jury trial exists and where no prejudice will result, a party may

unilaterally withdraw its consent to a jury trial.”); Kramer v. Banc of Am.

Sec., LLC, 355 F.3d 961, 968 (7th Cir. 2004) (allowing a defendant to

withdraw consent when there was no right to jury trial); CBS Broad., Inc.

v. EchoStar Commc’ns Corp., 450 F.3d 505, 517 n.25 (11th Cir. 2006)

(concluding it was not reversible error to strike a jury trial demand days

30 EPIC GAMES, INC. V. GOOGLE LLC

Confronted with a jury demand on the counterclaims,

which presented issues closely intertwined with Epic’s

antitrust claims, the district court faced a choice about how

to proceed. And its decision is reviewed in part for its

conformity to the “usual practice” under the federal rules, a

principle recently reiterated by the Supreme Court: “when a

factual dispute is intertwined with the merits of a claim that

falls under the Seventh Amendment, that dispute should go

to a jury.” Perttu v. Richards, 605 U.S. ----, No. 23-1324,

2025 WL 1698783, at *6 (U.S. June 18, 2025). Addressing

an affirmative defense “intertwined” with the merits, the

Court harkened back to Dairy Queen, Inc., in which “the

district judge erred in refusing . . . [a] demand for a trial by

jury” where the plaintiff brought legal and equitable claims

based on “common” “factual issues.” 369 U.S. 469, 479

(1962). As the Court held in Beacon Theaters, the right to

have a jury decide legal issues cannot be compromised by a

court first deciding equitable issues, absent extraordinary

circumstances. 359 U.S. 500, 510 (1959). This principle is

salient to our reading of the federal rules and of the district

court’s decision here to follow “the usual practice of the

federal courts in cases of intertwinement” and “send

common issues to the jury.” Perttu, 2025 WL 1698783, at

*10.

This was a classic case of intertwinement. The factual

issues underlying Google’s legal counterclaims overlapped

and intertwined extensively with the factual issues

underlying Epic’s equitable antitrust claims. Google itself

before trial where the plaintiffs sought purely equitable relief and no

legal claims remained in the case). That was not the posture here, where

there were equitable claims, legal claims, and a jury trial demand on

factual issues underlying both sets of claims.

EPIC GAMES, INC. V. GOOGLE LLC 31

had previously taken the position that it would “present

much of the same evidence” on its counterclaims as it would

in “defending against Plaintiffs’ antitrust case.” This

evidence included Google’s justifications for requiring the

use of Google Play Billing for all developers offering apps

on the Play Store, as well as the “trust and safety concerns”

motivating “the notifications and consent screens that are

displayed when users attempt to” directly download apps

“rather than download them from an app store.” Google

argued that its counterclaims turned on the same facts

regarding in-app billing and app-distribution that were the

underpinning of Epic’s antitrust claims. In Google’s words,

“the factual overlap between the counterclaim evidence and

the antitrust claims” was “extensive.”

Most prominently, Epic’s illegality defense to Google’s

counterclaims centered on the issues of whether Google’s

contracts had violated the antitrust laws and whether Google

had sufficient procompetitive justifications for its conduct.

These same issues were at the core of Epic’s antitrust claims.

The district court’s decision thus fully conformed with the

“usual practice” outlined in Perttu and Dairy Queen.

Again, the district court was thus presented with a

decision on the eve of trial: to bifurcate and hold two trials—

deciding in a bench trial those issues that were not jury-

demanded—or send Epic’s antitrust claims together with

Google’s counterclaims to the jury. (Despite Google’s

opposition to a jury hearing Epic’s antitrust claims, Google

never asked for the jury to be advisory only—under Rule

39(c)(1)—to address its concern: it was bifurcation or bust.)

Rule 42(b) permits, but does not require, separate trials

“[f]or convenience, to avoid prejudice, or to expedite and

economize.” Fed. R. Civ. P. 42(b). It has long been the case

32 EPIC GAMES, INC. V. GOOGLE LLC

that while “[t]he jury and nonjury issues may be tried

separately . . . . that is not required . . . . The matter is within

the trial court’s discretion as long as the order of trial is

arranged so that it preserves the jury right on the jury triable

issues.” Wright & Miller, Fed. Prac. & Proc. § 2337; see

also Beacon Theatres, 359 U.S. at 508‒10 (noting the trial

court’s discretion to arrange cases so long as the jury right is

preserved); Ammesmaki v. Interlake S. S. Co., 342 F.2d 627,

631 (7th Cir. 1965) (“A single trial tends to lessen delay,

expense, and inconvenience. The granting of separate trials

rests in the discretion of the trial judge. Rule 42(b) obviously

is not mandatory. For this reason [defendant] cannot now be

heard to complain about the district court’s denial of the

motion for separate trials.”). By sending all the issues to a

jury, the district court ensured that no jury right was

jeopardized—and simultaneously managed the trial in the

spirit of economy.

Trial bifurcation is a question soundly within the district

court’s judgment: “We review for abuse of discretion the

district court’s rulings on whether to bifurcate a trial,” and

“we usually affirm a trial judge’s decision.” Huizar v. City

of Anaheim (Estate of Diaz), 840 F.3d 592, 601 (9th Cir.

2016) (citation omitted). The district court was well within

its discretion to deny bifurcation because of the overlap in

factual disputes raised by the counterclaims and antitrust

claims explained above. The court’s decision is supported

by Google’s own representations. In its earlier opposition to

bifurcation, Google argued that Match and Epic failed to

“carry their burden to show that bifurcation would promote

efficiency.” The district court agreed with Google that

bifurcation was unwarranted and thus found it “particularly

significant” that on the eve of trial Google made a complete

about-face to argue for bifurcation, after having “expressly

EPIC GAMES, INC. V. GOOGLE LLC 33

represented to the Court that the facts underlying plaintiffs’

antitrust claims and Google’s counterclaims overlap in

substantial measure” only a few months before. Google

never explains what facts changed to suddenly invert the

equation and render bifurcation most efficient. Fed. R. Civ.

P. 42(b) (allowing bifurcation “to expedite and economize”).

And Google would be hard pressed to offer a credible

justification: the focus of the antitrust claims and Epic’s

illegality defense to the counterclaims centered on many of

the same facts and arguments.

By the time of trial, the litigation had long proceeded on

the understanding that a single trial would take place, to

which both Epic and Google had explicitly agreed. And the

district court declined to conduct separate proceedings on the

parties’ claims because it concluded that Google did not

effectively withdraw its prior consent to a jury trial on Epic’s

equitable claims. We do not need to address this additional

withdrawal-of-consent issue. The district court’s ultimate

decision was consistent with “the usual practice of the

federal courts in cases of intertwinement.” Perttu, 2025 WL

1698783, at *10. For that reason, we conclude that the

district court did not abuse its broad discretion in denying

Google’s request to bifurcate.

III. The District Court Did Not Err in Instructing the

Jury

A. A Jury Instruction on Single-Brand Aftermarkets

Was Not Warranted

This case was never framed by either party as involving

single-brand aftermarkets. So, it is no surprise that the

district court declined to instruct the jury on this principle

when Google raised it well into trial. Although we review

de novo whether a jury instruction accurately states the law,

34 EPIC GAMES, INC. V. GOOGLE LLC

“whether an instruction should be given in the first place

depends on the theories and evidence presented at trial”

which “is mostly a factual inquiry” that “we typically review

. . . for abuse of discretion.” United States v. Heredia, 483

F.3d 913, 921 (9th Cir. 2007). Under either standard, the

district court did not err in declining to give the proposed

instruction.

A single-brand aftermarket is a market in which a

consumer is “locked in” with a single brand and “demand for

a good is entirely dependent on the prior purchase of a

durable good in a foremarket.” Apple, 67 F.4th at 976

(emphasis removed). The seminal example comes from

Kodak, where once customers purchased Kodak

photocopiers or other equipment in the foremarket, they

were “locked in” to an aftermarket of Kodak parts and

servicing. 504 U.S. at 476.

Google requested a jury instruction explaining the

burdens a plaintiff must carry 9 to prove a single-brand

aftermarket. But a single-brand aftermarket theory was not

presented at trial. Not only did Epic never argue for single-

brand aftermarkets, but Google also never framed the market

this way. Instead, Google’s expert testified, “what this

market is about is that app developers and app users want

their . . . digital interactions[] to go well.” As the district

court pointed out, “[n]obody in this case . . . has said a word

about it, including [Google’s] own experts . . . none of your

9

“[T]o establish a single-brand aftermarket, a plaintiff must show:

(1) the challenged aftermarket restrictions are ‘not generally known’

when consumers make their foremarket purchase; (2) ‘significant’

information costs prevent accurate life-cycle pricing; (3) ‘significant’

monetary or non-monetary switching costs exist; and (4) general market-

definition principles regarding cross-elasticity of demand do not

undermine the proposed single-brand market.” Apple, 67 F.4th at 977.

EPIC GAMES, INC. V. GOOGLE LLC 35

experts . . . said a peep about a proposed relevant market

being based on a for[e]-market and after-market theory.”

Because that theory lacks a “foundation in the evidence,”

Google was not entitled to the instruction. Heredia, 483

F.3d at 922. It was also “within the district court’s discretion

to refuse to give the requested instruction because the

instruction could have confused the jury.” Cascade Health

Sols. v. PeaceHealth, 515 F.3d 883, 917 (9th Cir. 2008).

The same evidentiary void sinks the proposed instruction

under de novo review. Regardless of the parties’ framing or

terminology, the facts presented at trial do not meet the legal

definition of a single-brand aftermarket so as to warrant

Google’s proposed instruction. The foremarket of durable

goods in this case would be the market for smartphones that

run the Android operating system. The “undisputed

evidence showed at trial” that these durable goods “are

manufactured by many companies, including Google,

Samsung, Motorola, OnePlus, Xiaomi, and other OEMs.”

Multiple brands are also at play in the aftermarkets for

app distribution and in-app payments on Android-

compatible smartphones. The district court summarized that

“[s]ubstantial evidence was presented at trial that multiple

Android app stores can be, and on occasion have been,

available to consumers.” Indeed, “Google’s efforts to

suppress rival app stores” like Samsung’s Galaxy Store, and

maintain Play Store dominance, were a focal point during

trial. Because Google licenses the Android operating system

directly to OEMs rather than consumers, and because Play

Store alternatives exist for Android app distribution and in-

app payments, the reality is that consumers might not

transact with Google in either the foremarket or aftermarket,

making it difficult to argue that they are “locked in” to that

brand.

36 EPIC GAMES, INC. V. GOOGLE LLC

By contrast, Apple’s vertical integration made it a strong

candidate for a single-brand aftermarket theory, as Epic

explicitly argued in the Apple litigation. 67 F.4th at 978.

Consumers using iOS have necessarily purchased an Apple

product (i.e., iPhone) from Apple and are then locked into a

“walled garden” with Apple’s App Store. In that litigation,

however, Epic failed to meet the burden imposed on

plaintiffs asserting a single-brand aftermarket, including

proving that consumers were unaware of aftermarket

restrictions. Id. at 980–81. Google now argues for imposing

those same burdens here in hopes of receiving the same

result, but we are comparing Apple to oranges: Epic never

argued for a single-brand Google aftermarket, nor does

Android operate the same way as Apple.

Advocating for single-brand aftermarkets is another

attempt by Google to flatten the entire Android ecosystem

into one brand that competes against one other brand—

Apple. But the crux of this case is Google’s anticompetitive

conduct vis-à-vis many different brands within the Android

ecosystem. Given that the markets for Android app

distribution and in-app payment systems are not single-

brand aftermarkets, and no such theory was proposed by

either party during trial, the district court did not err in

denying Google’s request for a single-brand aftermarket

instruction.

B. The Rule of Reason Does Not Require

Consideration of Procompetitive Benefits Across

Markets

In its effort to cast this case as a Google-versus-Apple

struggle for market share, Google tries to sidestep the focus

of the case presented to the jury, namely that Google

improperly monopolized and restrained trade within the

EPIC GAMES, INC. V. GOOGLE LLC 37

Android app markets. This theme resurfaces in another jury

instruction dispute. It has long been understood that “the

Rule of Reason is the presumptive mode of analysis” for

both Section 1 and Section 2 of the Sherman Act. Irving

Scher & Scott Martin, Antitrust Adviser § 2:12 (5th ed.

2023). The rule requires the plaintiff to first show the

challenged conduct had an adverse effect on competition and

then considers whether any procompetitive benefits are

outweighed by anticompetitive effects. Id. Google argues

that the jury instruction for Rule of Reason Step 2

improperly limited the jury’s consideration of

procompetitive benefits of the challenged conduct to the

“relevant market,” instead of allowing the jury to also

consider related markets. 10 Yet again, Google’s concern is

that its competition with Apple should have been a focus for

the jury, despite Epic defining Android-only markets.

Specifically at issue is an instruction directed only to the

Section 2 Sherman Act (monopolization) claim. If the jury

determined at Step 1 of the Rule of Reason that Epic proved

Google’s conduct caused substantial harm to competition in

a relevant market, then the jury should decide “whether

Google has justified its conduct by proving that its conduct

was reasonably necessary to achieve competitive benefits for

consumers in that relevant market.” We review de novo

whether that jury instruction accurately states the law.

Spencer v. Peters, 857 F.3d 789, 797 (9th Cir. 2017)

10

Google also argues the instructions improperly allowed the jury to

balance pro- and anticompetitive effects at Step 3 of the Rule of Reason,

rather than proceeding to a fourth Step. But “Google acknowledges that

[our precedent in Apple] forecloses this argument before [this] panel.”

See also 67 F.4th at 993–94 (“Supreme Court precedent neither requires

a fourth step nor disavows it” and the Rule of Reason steps are not a “rote

checklist.”). The district court did not err in its balancing instruction.

38 EPIC GAMES, INC. V. GOOGLE LLC

(quoting Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir.

2014)).

To begin, it is not settled case law that a jury is required

to consider cross-market procompetitive benefits when

conducting Rule of Reason analysis. In Apple we concluded

that “[t]he Supreme Court’s precedent on this issue is not

clear,” citing cases going both ways, and noting that “[o]ur

court’s precedent is similar” and “we have never expressly

confronted this issue.” 67 F.4th at 989. Google itself

acknowledges that “the Supreme Court has recently

indicated that the question [of cross-market procompetitive

justifications] remains open,” citing National Collegiate

Athletic Association v. Alston, 594 U.S. 69, 87 (2021), where

the Court “express[ed] no views” on the issue. Id. Because

consideration of cross-market competitive benefits is an

open question and not an established legal requirement, it

was not error for the district court to exclude it from the jury

instruction.

In any event, should the Supreme Court ultimately

impose such a rule, any error in the instruction was harmless.

See Swinton v. Potomac Corp., 270 F.3d 794, 805–06 (9th

Cir. 2001) (holding that reversal is not warranted where “the

error is more probably than not harmless.”) (citation

omitted). Throughout trial, Google presented the position

that its restrictive practices were justified by its competitive

battle with Apple. The Section 1 Sherman Act (restraint of

trade) instruction imposed no limit on procompetitive

considerations in other markets. It would be illogical to

divine that the jury would have viewed the monopolization

claim differently than it viewed the restraint-of-trade claim,

on which the jury found against Google. See FTC v.

Qualcomm Inc., 969 F.3d 974, 991 (9th Cir. 2020) (Rule of

Reason analysis “essentially the same” for the two claims).

EPIC GAMES, INC. V. GOOGLE LLC 39

Jury instructions must be reviewed “as a whole.” Skidmore

v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en

banc). Under that standard, given the jury’s verdict and the

strength of the evidence, any claimed error was harmless.

IV. The Permanent Injunction Is Valid

Following the jury’s verdict on December 8, 2023, the

district court commenced post-trial proceedings that allowed

each side “a virtually unlimited opportunity to present its

views about the scope and content of an injunction.” Epic

submitted a proposed injunction; Google responded with its

objections; and the court extensively queried both parties

and their many fact and expert witnesses. After two

evidentiary hearings, twenty written submissions from the

parties, and vigorous argument by counsel, the court entered

a permanent injunction and issued findings of fact and

conclusions of law in a separate order, which was

supplemented by the court’s earlier denial of Google’s

JMOL motion.

A. The Injunction’s Provisions

The injunction balances Epic’s proposals to remedy the

antitrust violations against Google’s concerns about

overbreadth, security, and implementation. Adopting a

nationwide scope and halving Epic’s proposed six-year

timeline to a period of three years, the injunction

commenced on November 1, 2024, and extends for three

years to November 1, 2027. 11

11

Only one of the injunction’s provisions—prohibiting Google from

paying smartphone manufacturers not to preinstall Play Store

competitors on their devices—has taken effect. All other provisions were

stayed pending appeal.

40 EPIC GAMES, INC. V. GOOGLE LLC

The court’s order began by prohibiting anticompetitive

arrangements that insulated the Play Store and Google Play

Billing from competition. The injunction prohibits Google

from sharing Play Store revenue with actual or prospective

entrants in the Android app-distribution market, just as

Google earlier sought to compensate Samsung with “Project

Banyan” to “[p]revent unnecessary competition” between

the Samsung Galaxy Store and Play Store. The injunction

next prohibits Google from engaging counterparties in

restrictive deals that condition payment or access to the Play

Store on (1) an agreement to launch apps first or exclusively

on the Play Store, or (2) an agreement to preinstall the Play

Store and not any other app store in any specific location on

an Android smartphone. Finally, the injunction prohibits

Google from continuing to require Google Play Billing for

all apps distributed on the Play Store. The district court

explained that these remedies “closely track the evidence of

anticompetitive conduct at trial.” On appeal, Google does

not directly challenge these prohibitions on anticompetitive

arrangements, though it folds them into its broader attacks

on the factual findings and Epic’s standing to seek a

nationwide injunction.

In addition to these restrictions on Google’s prior

anticompetitive conduct, the injunction also seeks to restore

competition in the Android app-distribution market with the

catalog-access and app-store-distribution remedies. The

catalog-access remedy requires Google to “permit third-

party Android app stores to access the Google Play Store’s

catalog of apps,” so that competing app stores can offer users

a comparable library of software products. On the other side

of the market, the app-store-distribution remedy forbids

Google from banning “third-party Android app distribution

platforms or stores through the Google Play Store,” so that

EPIC GAMES, INC. V. GOOGLE LLC 41

the same platforms can access Android smartphone users

who are currently accustomed to downloading all their apps

through the Play Store. Together these provisions allow

other app stores to compete in this two-sided market by

letting them offer the apps and reach the users on the Play

Store platform. The district court gave Google an eight-

month timeline to develop the systems needed to comply

with both the catalog-access and app-store-distribution

remedies. Responding to Google’s concerns about the safety

of products offered on the Play Store, the injunction permits

Google to adopt “reasonable measures” and charge “a

reasonable fee . . . based on Google’s actual costs” to ensure

user security and privacy.

Finally, anticipating disputes over implementation, the

court ordered the formation of a three-person Technical

Committee composed of one member selected by Epic,

another member selected by Google, and a third member

selected by those two representatives. In the event of a

disagreement, Google bears the burden of showing that its

technical requirements are “strictly necessary to achieve

safety and security for users and developers.” The district

court maintains control, since any unresolved issues are to

be referred to the court. We uphold the injunction in full.

B. The District Court Had Broad Discretion to Craft

the Antitrust Injunction

Google raises a number of objections to the injunction.

“Because ‘[a] district court’s decision to grant a permanent

injunction involves factual, legal, and discretionary

components,’ we evaluate such a decision under three

different standards of review.” Scott v. Pasadena Unified

Sch. Dist., 306 F.3d 646, 653 (9th Cir. 2002) (citation

omitted). “[W]e review factual findings for clear error, legal

42 EPIC GAMES, INC. V. GOOGLE LLC

conclusions de novo, and the scope of the injunction for

abuse of discretion.” United States v. Wash., 853 F.3d 946,

962 (9th Cir. 2017) (citing id.).

Equitable relief in private antitrust actions is governed

by Section 16 of the Clayton Act, which grants that “[a]ny

person, firm, corporation, or association shall be entitled to

. . . injunctive relief . . . against threatened loss or damage by

a violation of the antitrust laws.” 15 U.S.C. § 26. Though

“caution is key,” Alston, 594 U.S. at 106, the Supreme Court

has repeatedly endorsed the principle that district courts are

“clothed with ‘large discretion’ to fit the decree to the special

needs of the individual case”—not just to “unfetter a market

from anticompetitive conduct,” but also to “pry open to

competition a market that has been closed by defendants’

illegal restraints.” Ford Motor Co. v. United States, 405 U.S.

562, 573, 577–78 (1972) (cleaned up). These equitable

powers animate Section 16, because “the purpose of giving

private parties . . . injunctive remedies was not merely to

provide private relief, but was to serve as well the high

purpose of enforcing the antitrust laws.” Zenith Radio Corp.

v. Hazeltine Rsch., Inc., 395 U.S. 100, 130–31 (1969). As a

result, Epic “need only demonstrate a significant threat of

injury from an impending violation of the antitrust laws or

from a contemporary violation likely to continue or recur,”

and the district court may “restrain acts which are of the

same type or class as unlawful acts which the court has found

to have been committed or whose commission in the future

unless enjoined, may fairly be anticipated from the

defendant’s conduct in the past.” Id. at 130, 132 (citation

omitted).

Echoing the Supreme Court’s guidance, we recently

concluded that where a defendant has been found to violate

federal antitrust laws, “the available injunctive relief is

EPIC GAMES, INC. V. GOOGLE LLC 43

broad, including to ‘terminate the illegal monopoly, deny to

the defendant the fruits of its statutory violation, and ensure

that there remain no practices likely to result in

monopolization in the future.’” Optronic Techs., Inc. v.

Ningbo Sunny Elec. Co., 20 F.4th 466, 486 (9th Cir. 2021)

(citation omitted). Enacting extensive Section 16 relief

requires a “clear indication of a significant causal connection

between the conduct enjoined or mandated and the violation

found.” Optronic, 20 F.4th at 486 (cleaned up); 3 Phillip E.

Areeda & Herbert Hovenkamp, Antitrust Law ¶ 653b, at 92

(1996). Importantly, “the reviewing court only asks if the

relief is a reasonable method of eliminating the

consequences of the illegal conduct.” Optronic, 20 F.4th at

486 (cleaned up).

We start our analysis with Google’s challenges to the

two remedies directed at unwinding the consequences of

Google’s anticompetitive conduct: catalog access and app-

store distribution. As part of our discussion of these

remedies, we also address Google’s objections to the

formation of the Technical Committee. Then, we proceed to

Google’s broader efforts to vacate the entire injunction and

contest its nationwide effect. 12 In recognition of the

discretion historically afforded to the entry of equitable

12

Beyond contesting the injunction’s factual basis, geographic scope,

and Epic’s Article III standing, Google does not challenge the district

court’s prohibitions on its prior anticompetitive arrangements. Because

the district court clearly outlined its factual and legal bases for

concluding that anticompetitive conduct had occurred and acted within

its authority to “restrain acts which are of the same type or class as

unlawful acts which the court has found to have been committed,” we

conclude that those measures survive review. Zenith Radio, 395 U.S. at

132.

44 EPIC GAMES, INC. V. GOOGLE LLC

antitrust remedies, we conclude that the injunction should be

affirmed.

C. Catalog Access

We begin with the catalog-access approach to restoring

competition in Android app distribution. We agree with the

FTC and DOJ that our review must account for “the

particular characteristics of digital markets, which can allow

monopolists that achieved or maintained dominance through

exclusionary conduct to perpetuate entry barriers and

maintain monopoly power long after that conduct has

stopped.” Given these realities, we recognize the district

court’s “large discretion” to meet the “special needs” of the

case, which must include the nature of the market. Ford

Motor, 405 U.S. at 573, 577–78 (cleaned up).

The district court repeatedly emphasized that the

catalog-access remedy is intended to ameliorate

consequences “intertwined with the network effects” that

Google has enjoyed as a monopolist in a two-sided platform

market. Specifically, the court cited evidence about the Play

Store’s advantaged position between a critical mass of app

developers and a critical mass of app users, quoting directly

from Google’s internal presentations that “Users come to

Play because we have by far the most compelling catalog of

apps/games”; “Developers come to Play because that’s

where the users are”; and even formidable competitors like

“Amazon will struggle to break those network effects.’” As

the district court explained, the catalog-access remedy seeks

to “overcome” the Play Store’s illegally amplified network

effects by “giv[ing] rival stores a fair opportunity to establish

themselves” with a competitive catalog of software

applications. The provision temporarily opens up the

Android app-distribution market, by giving app stores a

EPIC GAMES, INC. V. GOOGLE LLC 45

three-year window to access the singular catalog that Google

accumulated and leveraged during the Play Store’s

dominance of the market. As the district court put it, “[a]ll

that the catalog access does is level the playing field for a

discrete period of time so that rival app stores have a fighting

chance of getting off the ground.”

Google objects to the catalog-access provision on the

grounds that (1) it illegally imposes a duty-to-deal

requirement “to design new products and services tailor-

made for [Google’s] competitors”; and (2) it imposes that

requirement without identifying a “significant causal

connection” to Google’s anticompetitive conduct.

Neither of these challenges carries the day, and together

they misconstrue our longstanding deferential approach to

equitable antitrust remedies. In light of the digital two-sided

market at issue, the remedy represents “a reasonable method

of eliminating the consequences of [Google’s] illegal

conduct” that we must affirm as the reviewing court.

Optronic, 20 F.4th at 486 (quoting Nat’l Soc’y of Pro. Eng’rs

v. United States, 435 U.S. 679, 698 (1978)).

1. No Impermissible Duty to Deal

To start, it is not true that courts cannot and have never

compelled antitrust defendants to deal with rivals,

notwithstanding Google’s attempt to characterize catalog

access as an impermissible “duty to deal.” Google’s reliance

on the Supreme Court’s Trinko decision for the proposition

that “forced sharing” creates “tension with the underlying

purpose of antitrust law” is misplaced. Verizon Commc’ns.

Inc. v. Law Off. of Curtis v. Trinko, LLP, 540 U.S. 398, 407–

08 (2004). That case addressed the question of whether a

unilateral refusal to deal with rivals violates Section 2 of the

Sherman Act—not the legality of compelling a defendant

46 EPIC GAMES, INC. V. GOOGLE LLC

already found liable under that statute to deal with its

competitors. We accept Trinko’s lesson that a single entity’s

decision not to deal with competitors can be legal under the

Sherman Act, but it is well established that antitrust remedies

can and often must proscribe otherwise lawful conduct to

unwind and further prevent violators’ anticompetitive

activity. See, e.g., Nat’l Soc’y of Pro. Eng’rs, 435 U.S. at

697–98 (“In fashioning a remedy, the District Court may, of

course, consider the fact that its injunction may impinge

upon rights that would otherwise be constitutionally

protected, but those protections do not prevent it from

remedying the antitrust violations.”). No wonder, then, that

the Court in Ford Motor affirmed an order forcing Ford not

only to divest an illegally acquired spark-plug manufacturer,

but thereafter to “purchase one-half of its total annual

requirement of spark plugs from the divested plant.” 405

U.S. at 572. More recently, in Optronic, we also upheld an

order requiring a telescope manufacturer to service a

designer and marketer of telescopes on non-discriminatory

terms. 20 F.4th at 486–87. These cases underscore that,

after establishing liability, the district court had within its

basket of remedial powers the authority to require Google to

deal with parties harmed by its anticompetitive conduct,

including its competitors.

Google tries to differentiate these previously upheld

injunctions by claiming that the district court improperly

ordered Google to “design new products” (emphasis added),

rather than “sell existing products.” As a practical matter,

this argument mischaracterizes what exactly the catalog-

access remedy asks Google to do—which is to allow app-

store developers to access existing data and data-processing

resources that, until now, Google restricted the developers

EPIC GAMES, INC. V. GOOGLE LLC 47

from accessing. 13 Google is not being asked to develop a

new product or service from scratch. Notwithstanding its

complaints about the burden of implementing the catalog-

access remedy—i.e., in having “to create entirely new

infrastructure to serve as the backend administrator for any

number of third-party app stores”—the record confirms that

Google can make the existing Play Store’s app catalog

available to other app stores at a cost of under $1 million, by

using existing metadata servers and technical procedures. 14

As Epic’s expert explained, “Google already has the catalog

data on hand stored in an accessible server.” Google’s

expert not only agreed with the practicability of modifying

these systems—“I’m not disputing the feasibility”—but also

offered a six-to-nine-month estimate for implementation, in

keeping with the injunction’s eight-month timeline.

13

Google’s purported distinction between having to offer “existing” and

“new” services appears to reflect the distinction between prohibitory

injunctions (seeking to preserve the status quo) and mandatory

injunctions (requiring parties to perform certain acts). But the Supreme

Court has expressly declined to read such a distinction into the scope of

equitable relief available under Section 16. Cal. v. Am. Stores Co., 495

U.S. 271, 279–84 (1990) (observing that prior decisions have “upheld

injunctions issued pursuant to § 16 regardless of whether they were

mandatory or prohibitory in character”). That the district court simply

required Google to configure its services differently is a permissible

form of relief. Id. at 283 (citing Silver v. N.Y. Stock Exch., 373 U.S. 341,

345, 365 (1963) (reinstating judgment compelling defendants to install

private wire connections)).

14

The court extensively questioned experts from both parties about the

so-called “Alley Oop” process that Google has already made available

to select developers. That scalable process “embed[s] a button that will

enable the installation of an app from the Play Store” in a way that could

conform to the demands of the catalog-access remedy. Google’s expert

did not contest that “they already have mechanisms to put that in place.”

48 EPIC GAMES, INC. V. GOOGLE LLC

2. Significant Causal Connection

Google also objects that the district court committed a

legal error by failing to make a specific finding that “the

company’s competitive advantage—here, network effects—

would have existed even without the anticompetitive

conduct.” Google highlights its first-mover status in the

Android app-distribution market to claim that some of the

Play Store’s network effects must owe to “that lawful

advantage,” rather than any illegal conduct. Neither we nor

the district court discount this argument. Nonetheless, it

fails.

First, initial innovation notwithstanding, a first mover is

“not entitled to maintain and magnify” the relevant network

effects by entrenching its dominance through

anticompetitive conduct.

Second, Google misconstrues the responsibility of the

district court. The district court was obligated to ensure only

that the conduct enjoined or mandated by the catalog-access

provision (here, Google’s technical and contractual

exclusion of other app-store developers from the Play Store)

had a significant causal connection to “the violation found”

(here, the creation or maintenance of a monopoly).

Optronic, 20 F.4th at 486 (emphasis added) (quoting United

States v. Microsoft Corp., 253 F.3d 34, 105 (D.C. Cir. 2001).

The district court fulfilled that obligation when it stated:

“[T]he question is whether Google engaged in

anticompetitive conduct that had the consequence of

entrenching and maintaining its monopoly power in a two-

sided market. The jury answered that question in the

affirmative.” Optronic does not require that an injunction

only touch the consequences of a defendant’s conduct.

Rather, it asks for a “reasonable method” of redressing

EPIC GAMES, INC. V. GOOGLE LLC 49

problems with a “significant causal connection to that

conduct.” Id. As the district court pointed out, Google is

barking up the wrong tree.

Likewise, Google’s objection that the catalog access

provision lacks a significant causal nexus falls short. The

court plainly stated: “Google unfairly enhanced its network

effects in a way that would not have happened but for its

anticompetitive conduct.” This is an unambiguous finding

of a “significant causal connection” between Google’s

illegal conduct and the strength of the network effects

benefiting Google in the app-distribution market. Id. at 486

(citation omitted).

Google does not argue that the district court clearly erred

in its factual findings on causation. For good reason. The

record was replete with evidence that Google’s

anticompetitive conduct entrenched its dominance, causing

the Play Store to benefit from network effects. The district

court established that, as Google “erect[ed] barriers to

insulate the Play Store from competition,” it did so with the

awareness that “to get more developers, Amazon needs more

users.” Google was specifically interested in preventing

Amazon from “break[ing] those network effects.” Its

anticompetitive conduct was forward-looking, with the

purpose—and ultimately the consequence, according to the

jury’s verdict—of preserving the market dominance that led

to those network effects. The court’s citations to Google’s

own internal communications illustrate how “benefits from

network effects” motivated and flowed from anticompetitive

activity “entrenching and maintaining” the Play Store’s

dominant position in a two-sided market. Far from a

“plainly weak” causal relationship, 3 Areeda & Hovenkamp,

Antitrust Law ¶ 653c4, at 97, the record demonstrates

substantial support for the district court’s finding that

50 EPIC GAMES, INC. V. GOOGLE LLC

Google’s anticompetitive conduct caused the creation or

maintenance of its monopoly power and “unfairly enhanced”

the relevant network effects.

Once the court established, based on the trial evidence,

that network effects were among the consequences of

Google’s anticompetitive conduct, the court was permitted

to shape relief targeted to those effects. Section 16

authorizes courts to “deny to the defendant the fruits of its

statutory violation.” Optronic, 20 F.4th at 486 (quoting

Microsoft Corp., 253 F.3d at 103). The network effects that

resulted from Google’s entrenchment of the Play Store in the

two-sided app-distribution market are among those fruits.

Because the catalog-access remedy ultimately offers a

“reasonable method” of counteracting the Play Store’s

dominance and reducing the network effects it enjoys by

temporarily lowering barriers to entry, we uphold that

provision. Optronic, 20 F.4th at 486 (citation omitted).

D. App-Store Distribution

The district court’s injunction also restricts Google from

“prohibit[ing] the distribution of third-party Android app

distribution platforms or stores through the Google Play

Store,” in direct response to Google’s practice of freezing

other app stores out of the Play Store and barring them from

users. Google is still entitled to charge a “reasonable fee”

for any “reasonable measures” it takes to ensure that the app

stores distributed on its platform “are safe from a computer

systems and security standpoint, and do not offer illegal

goods or services . . . , or violate Google’s content

standards.”

Google raises the same two challenges here as it did with

respect to the catalogue-access provision—that the district

court exceeded its authority, and that it failed to make a

EPIC GAMES, INC. V. GOOGLE LLC 51

causation finding. For the same reasons discussed above, we

disagree with Google’s causation argument. And for many

of the same reasons as the catalog-access provision, we hold

that the app-store-distribution remedy was within the district

court’s authority.

In its discussion about Google’s “unfairly enhanced”

network effects, the district court laid bare how market

entrants faced hurdles on both ends of the two-sided market

for Android app distribution. The yin and yang of this

symbiotic relationship locked other app stores out of the Play

Store, while app developers and users were locked in.

Google knew that competitors would “struggle” not just

because “their catalog of apps/games is very limited,” but

also because “they don’t have users.” That is why Google

worked in various ways to keep users tied to the Play Store,

by making it difficult to download apps outside of the

platform and by engaging OEMs to install the Play Store as

the default app store on Android smartphones. It also

explains why the court sought to “undo the consequence of

Google’s ill-gotten gains” on that side of the market, by

giving competitors a chance to reach users now anchored to

the Play Store.

As the explanatory order put it, app-store distribution

“lower[s] the barriers for rival app stores to get onto users’

phones by enjoining Google from prohibiting the presence

of rival app stores in the Google Play Store.” The remedy

enables this intervention while still permitting Google to

charge a “reasonable fee” for any security measures that are

“comparable to the measures Google is currently taking for

apps proposed to be listed in the Google Play Store.” Taken

together, the district court’s approach represents a

“reasonable method of eliminating the consequences of

[Google’s] illegal conduct” on the user side of the Android

52 EPIC GAMES, INC. V. GOOGLE LLC

app-distribution market, just as the catalog-access remedy

did on the developer side. Optronic, 20 F.4th at 486 (quoting

Nat’l Soc’y of Pro. Eng’rs, 435 U.S. at 698). So again, we

affirm.

Google’s complaints about these “duties to deal” are

even less convincing here than in the context of the catalog-

access remedy. By ordering Google to allow rival app stores

from Amazon, Samsung, or any other competitor onto the

Play Store, the injunction only compels that Google treat

those software products the same way that it treats other

products already offered on the platform. “App stores are

themselves just a type of app,” as Epic notes, and some third-

party app stores were already carried on the Play Store

before Google updated its terms to have them excluded.

Though Google may decry the inconvenience of having to

design “new protocols” to address the security risks of

carrying app stores, its own expert conceded that Google

would be able to meet these difficulties with the same

technological criteria it uses for other third-party software

applications already on the Play Store.

Google offers an additional challenge to the app-store-

distribution remedy’s pricing clause, which provides:

“Google may require app developers and app store owners

to pay a reasonable fee” for its security procedures. Google

asks that we follow our decision in Image Technical Services

v. Eastman Kodak to modify the provision about “reasonable

prices” and require only “nondiscriminatory pricing.” 125

F.3d at 1195, 1225 (9th Cir. 1997). This argument is

unconvincing because there our intervention was motivated

by a concern about Kodak’s intellectual property assets and

its attendant “right to earn monopoly profits.” Id. Google

cannot explain why it is similarly “entitled” to charge

supracompetitive prices for security reviews. Id. While

EPIC GAMES, INC. V. GOOGLE LLC 53

Google seeks to transform Kodak into a “legal rule” that

prohibits “direct price administration,” it overlooks Kodak’s

recognition that pricing is “generally [i.e., not always]

considered beyond our function.” Id. (emphasis added).

Indeed, the Supreme Court has expressly approved

“reasonable” pricing restrictions in remedial orders. See,

e.g., United States v. Glaxo Grp. Ltd., 410 U.S. 52, 62 (1973)

(requiring defendant “to grant patent licenses at reasonable-

royalty rates”); Int’l Boxing Club of N.Y., Inc. v. United

States, 358 U.S. 242, 261, 255 (1959) (affirming a

“compulsory leasing provision” requiring defendants to

lease their premises for a “fair and reasonable” rental rate);

United States v. Nat’l Lead Co., 332 U.S. 319, 349–50

(1947) (affirming decree ordering defendants to grant patent

licenses for a “reasonable royalty,” reasoning, “that

conception is one that already has been recognized both by

Congress and by this Court”).

We conclude that the district court not only acted within

its discretion to mandate a “reasonable fee,” but also chose

the right price level to ensure the pro-competitive function

of the app-store distribution remedy. Whereas Kodak

determined that the modified, “nondiscriminatory pricing”

would work just as well to keep the defendant in that case

from harming competitors and charging exorbitant fees, here

that standard could still allow Google to keep third-party app

stores off the Play Store by charging them all the same

unreasonably high price. Id. at 1225. The FTC and DOJ

warn against this possibility in their amicus brief, where they

argue that the reasonable-fee provision “plainly prevents

Google from undermining the decree by charging rival app

stores exorbitant rates that could undermine their

competitiveness.” Google objects that it has “no established

history of [] abusing the pricing of [its security procedures]

54 EPIC GAMES, INC. V. GOOGLE LLC

to restrain trade,” but that does not answer the question

whether it could instrumentalize that price lever in the future,

when Google is enjoined from excluding third-party app

stores simply as a matter of policy. 15

The Supreme Court put this point bluntly: “The District

Court is not obliged to assume, contrary to common

experience, that a violator of the antitrust laws will

relinquish the fruits of [its] violation more completely than

the court requires.” Int’l Salt Co. v. United States, 332 U.S.

392, 400 (1947). As Epic explains, “Google has not been

and does not want to be in the business of carrying app stores

at all.” So now that the jury found Google liable for

restraining trade through other means, it falls squarely within

the district court’s discretion to “ensure that there remain no

practices likely to result in monopolization in the future.”

Optronic, 20 F.4th at 486 (citation omitted). Because that

discretion encompasses the power to craft “forward-

looking” restraints like the reasonable-fee provision, and

because that provision enhances the restorative and pro-

competitive effect of the app-store-distribution remedy

without causing undue harm to Google or its business, it

survives our review. Mass. v. Microsoft Corp., 373 F.3d

1199, 1215 (D.C. Cir. 2004).

E. Rule 65 Vagueness and the Technical Committee

We next consider whether the injunction meets the

procedural requirements of Rule 65(d), which sets out that

every injunctive order must: “(A) state the reasons why it

15

Google’s counsel was queried at oral argument and offered no

procompetitive reason why a non-discriminatory pricing restraint would

be workable, where a reasonable one would not. Oral Argument at

1:00:20 (No. 24-6256), ca9.uscourts.gov/media/video/?20250203/24-

6256/.

EPIC GAMES, INC. V. GOOGLE LLC 55

issued; (B) state its terms specifically; and (C) describe in

reasonable detail . . . the act or acts restrained or required.”

Fed. R. Civ. P. 65(d)(1). We follow the Supreme Court’s

guidance in considering whether the injunction provides

“fair and precisely drawn notice of what the injunction

actually prohibits.” Fortyune v. Am. Multi-Cinema, Inc., 364

F.3d 1075, 1087 (9th Cir. 2004) (emphasis removed)

(quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters,

415 U.S. 423, 444 (1974)). However, and in keeping with

the statutory requirement for “reasonable detail,” we do not

set aside injunctive provisions “unless they are so vague that

they have no reasonably specific meaning.” United States v.

Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). Here, on de

novo review, the district court’s injunction easily clears that

bar.

Google also invokes Rule 65 in objecting to the district

court’s decision to set up the framework for a Technical

Committee, contending that (1) these injunctive provisions

leave open too many questions about compliance, and (2) the

Technical Committee is an inappropriate mechanism for

clearing up those ambiguities. We disagree on both counts.

The district court not only used clear language to put Google

on notice of “what the injunction actually prohibits,”

Fortyune, 364 F.3d at 1087, but in the remedy also took

additional pains to establish a reasonably clear process for

“review[ing] disputes or issues relating to [] technology and

processes.”

1. Catalog Access and App-Store Distribution are

Clear Remedies

We attend first to the terms of the challenged remedies.

The catalog-access remedy states that “Google will permit

third-party Android app stores to access the Google Play

56 EPIC GAMES, INC. V. GOOGLE LLC

Store’s catalog of apps so that they may offer the Play Store

apps to users.” This language articulates the reason for the

order (i.e., so third-party app stores “may offer the Play Store

apps”) and explains in plain terms what Google is

“restrained or required” to do. Fed. R. Civ. P. 65(d)(1). For

those downloads that will be processed by Google Play,

Google must “permit users to complete the download” of

apps available only on the Play Store “on the same terms as”

if that download were made directly from the platform.

Google must “provide developers with a mechanism for

opting out of inclusion in catalog access for any particular

third-party Android app store.” And Google must develop

“the technology necessary to comply with this provision”

within eight months. Rather than identify any ambiguity

rendering the catalog-access provision “too vague to be

enforceable,” Del Webb Cmtys., Inc. v. Partington, 652 F.3d

1145, 1150 (9th Cir. 2011), Google points to outstanding

questions about app-store “eligibility criteria” and

technological implementation, such as “what metadata . . .

Google must make available” and “how often to refresh that

data.” These practical specifics go well beyond the

“reasonable detail” required by Rule 65(d), since the district

court need not “elucidate how to enforce the injunction” or

“provide [Google] with explicit instructions on the

appropriate means to accomplish this directive.” Fortyune,

364 F.3d at 1087. The injunction provides details that stem

from the evidence, and the district court cannot be expected

to give Google a cookbook on the specifics of complying

with the injunction. Were the court to take that approach,

Google would squawk that the injunction was too

overbearing.

The same necessary detail can also be found in the app-

store distribution remedy. That provision sets forth in clear

EPIC GAMES, INC. V. GOOGLE LLC 57

terms that “Google may not prohibit the distribution of third-

party Android app distribution platforms or stores through

the Google Play Store,” but allows Google to take

“reasonable measures to ensure that the platforms or stores,

and the apps they offer, are safe from a computer systems

and security standpoint.” Google objects that it does not

know which app stores fall within the scope of the order or

what “technical and content requirements” may be imposed.

But what is it about “third-party Android app distribution

platforms or stores” that Google doesn’t get? The parties

intimately understand what the injunction covers, and a

quick review of the remedial hearings reveals the backdrop

in excruciating detail. 16 Again, Google’s desire for extra

detail does not demonstrate that the app-store-distribution

remedy is missing so much information as to have no

“reasonably specific meaning.” Holtzman, 762 F.2d at 726

(citation omitted). The provision gives fair notice that

Google cannot turn away app-distribution platforms that

meet its technical requirements, and that those technical

requirements must be benchmarked against existing ones

(i.e., by making them “comparable to the measures Google

is currently taking for apps”). That level of “reasonable

16

The language that Google complains about in the app-store distribution

remedy actually reflects the district court’s concession to Google’s

position, where there was much discussion about whether technical

security procedures for third-party app stores should differ from those

already in place for other third-party apps. Epic pushed for consistency

between how Google vets Android app stores on and off the Play Store;

Google insisted, “we would want the level of safety for these third-party

app stores to be [] close to the Google Play safety.” The injunction

adopts Google’s stance by allowing “reasonable measures to ensure that

the platforms or stores, and the apps they offer, are safe,” so long as they

are “comparable to the measures Google is currently taking for apps.”

58 EPIC GAMES, INC. V. GOOGLE LLC

detail” meets the specificity requirements set forth by Rule

65(d).

2. The Technical Committee is Proper

The injunction’s directive to form a three-person

Technical Committee does nothing to compromise the

integrity of the catalog-access and app-store-distribution

remedies. The Technical Committee offers a helpful

resource to attend to the “nuts-and-bolts issues” that Google

raises in this challenge, which the district court identified as

too “granular” for the injunction and beyond its level of

technical expertise. The Technical Committee is hardly a

backstop for the injunction. It comports with federal courts’

long history of utilizing appointed experts and provides a

process to review and resolve inevitable disputes between

the parties—ideally without further need for judicial

intervention.

This arrangement is not at all uncommon in disputes that

demand a high degree of specialized knowledge, as this one

certainly does, and both we and our sister circuits have

sanctioned the appointment of technical advisors and special

masters. See, e.g., A&M Recs., Inc. v. Napster, Inc., 284

F.3d 1091, 1097 (9th Cir. 2002) (upholding injunction under

Rule 65 and deeming proper the district court’s use of a

technical advisor); Ass’n of Mexican-Am. Educators v. Cal.,

231 F.3d 572, 590 (9th Cir. 2000) (“In those rare cases in

which outside technical expertise would be helpful to a

district court, the court may appoint a technical advisor.”);

Chi. Bridge & Iron Co. v. FTC, 534 F.3d 410, 441 (5th Cir.

2008) (endorsing FTC divestment order that “carefully”

appointed a third-party monitor “to determine how assets

must be divided to effectuate the order and its general

remedial purpose”). One court reviewing the establishment

EPIC GAMES, INC. V. GOOGLE LLC 59

of such a committee observed that “the Government’s ability

to enforce the decree is clearly strengthened, not

diminished,” by that body. Microsoft Corp., 373 F.3d at

1244.

Google’s assertion that “no U.S. court has ever imposed

a technical committee by judicial fiat” is a fiction, as is its

suggestion that the district court’s Technical Committee

“violates not just Rule 65, but basic principles of Article III

adjudication.” The Supreme Court upheld a similar

arrangement in Besser Manufacturing Co. v. United States,

another monopolization case. 343 U.S. 444, 447–48 (1952).

There, against defendants’ objection that the injunction

“deprive[d] them of their property without due process,” the

Court affirmed the district court’s use of a committee to fix

royalty rates for patent licenses. Id. at 448. The committee

structure paralleled that of the Technical Committee here,

being composed of members selected by each party, plus an

additional member selected by those members. Id. What’s

more, just as the district court in that case retained its

authority to resolve any “deadlock,” id. at 449, the district

court has done so here by acknowledging that “[i]f the

Technical Committee cannot resolve a dispute or issue, a

party may ask the Court for a resolution.” 17 We are

confident that the district court has not abdicated its Article

III function, and we see no reason to depart from Besser’s

assessment that this kind of arrangement represents an

“entirely reasonable and fair” mechanism for dispute

resolution. Id. Nor does supplementing the injunction with

the Technical Committee undermine the sufficiency of the

17

The injunction also curtails the Technical Committee’s power to

“extend any deadline set in this order,” allowing only that it “may

recommend that the Court accept or deny a request to extend.”

60 EPIC GAMES, INC. V. GOOGLE LLC

catalog-access and app-store-distribution remedies under

Rule 65.

F. Sufficient Factual Findings Underlie the

Injunction

Having addressed the arguments targeted specifically at

the catalog-access and app-store-distribution remedies, we

turn to Google’s attempt to vacate the entire injunction.

Google disputes the factual findings underlying the remedy,

using that frame to gather various claims that the district

court: (1) failed to explain why it did not impose less

burdensome contractual restrictions; (2) declined to consider

Google’s settlement agreement with the States; and

(3) overlooked the security and intellectual property

interests of non-parties.

Before addressing each of these claims, we reiterate that

our standard of review for factual findings is clear error.

Wash., 853 F.3d at 962. We also add that there is little

precedent for this sort of factual-basis challenge, in that

injunctions have been modified or vacated for reasons

related to specific factual matters, but rarely due to

insufficient findings alone. 18 Here, though, there is no

oversight resulting in a “clear error of judgment.” La

Quinta, 762 F.3d at 879 (citation omitted). The district court

based its determinations on a vast record built throughout the

18

For example, in the trademark case La Quinta Worldwide LLC v.

Q.R.T.M., S.A.de C.V), we vacated an injunction after holding that a

factual omission “le[ft] us uncertain whether the district court considered

all relevant factors in assessing the balance of hardships.” 762 F.3d 867,

880 (9th Cir. 2014). There, the court failed to weigh a key consideration

related to the circumstances in which the parties would be able to

continue doing business under their names in the United States and

Mexico. Google points to no analogous absence of factfinding here.

EPIC GAMES, INC. V. GOOGLE LLC 61

trial and remedial hearings, and the injunction reflects due

consideration of “all relevant factors.” Id. at 880.

Again, we emphasize that the district court conducted

extensive proceedings before issuing the injunction and the

accompanying order. Courts crafting Section 16 relief are

“usually in a superior position to appraise and weigh the

evidence,” and this case is no exception. Zenith Radio, 395

U.S. at 123 (reviewing factual findings under the appropriate

“clearly erroneous” standard and reversing the appellate

court’s decision to set aside parts of a treble-damage award).

In addition to the jury’s specific findings on liability under

Sherman Act Section 1, corresponding to paragraphs four

through ten of the injunction, the district court supported the

liability verdict with further findings of fact and law in the

JMOL order. The court also gave the parties ample

opportunity to state and refine their positions on the

appropriate remedy. Over several months, the court

reviewed Google’s “blunderbuss of comments and

complaints” in 90-plus pages of objections to the proposed

injunction. The court also held evidentiary hearings with the

parties’ experts; received statements from the parties’

economists, technology experts, and engineers; accepted an

amicus brief from the FTC; and heard closing arguments on

the remedy. We pay heed to all this evidence—and the

district court’s proximity to it.

1. The Contractual Restrictions Need No Further

Explanation

Google’s first complaint about unduly burdensome

contractual restrictions is without merit. The thrust of

Google’s argument is that the district court failed to explain

why it did not adopt certain modifications proposed by

Google and did not consider ways to redress Google’s

62 EPIC GAMES, INC. V. GOOGLE LLC

anticompetitive agreements without imposing unnecessary

constraints. For starters, just because Google didn’t get

something that it proposed is no basis to upend the

injunction. The district court did not blindly adopt all of

Epic’s proposals either, and instead crafted an injunction that

responded to the evidence. The court followed our precedent

by using the parties’ proposals to tailor a remedy that would

“terminate the illegal monopoly, deny to the defendant the

fruits of its statutory violation, and ensure that there remain

no practices likely to result in monopolization in the future.”

Optronic, 20 F.4th at 486 (citation omitted).

Google specifically protests: (1) how the restriction on

conditional agreements “prohibits certain incentives to

OEMs regarding Play’s specific placement on Android

devices, even if the incentive places no condition on whether

the OEM deals with Play’s app distribution rivals or the

OEM itself is an Android app distribution rival”; and

(2) how the prohibitions on revenue sharing apply to lump-

sum payments and not just agreements to share a percentage

of Play Store revenue. But these provisions help unwind the

Play Store’s monopolization of the Android app-distribution

market and prevent “acts which are of the same type or class

as unlawful acts . . . found to have been committed.” Zenith

Radio, 395 U.S. at 132. The prohibition on OEM incentives

lowers barriers to entry by keeping Google from using its

clout to have the Play Store pre-downloaded on Android

smartphones. The revenue-sharing provision ensures that

Google does not simply enhance advantages that it

previously obtained by allocating fixed sums instead of

percentages of its Play Store revenue. Neither remedy

constitutes a “clear error of judgment” on the part of the

district court. La Quinta, 762 F.3d at 879 (citation omitted).

EPIC GAMES, INC. V. GOOGLE LLC 63

2. The State Settlement Was Duly Considered

As for Google’s pretrial settlement with the States, the

district court was well aware of that development. An expert

statement detailed why the States’ settlement “d[id] not fully

prohibit the conduct found to be anticompetitive at trial” or

“attempt to undo the effects of Google’s past anticompetitive

conduct,” and the court plainly resolved that the injunction

would be “the floor” dictating the settlement’s baseline—not

the other way around. That approach was entirely

appropriate and within the court’s remedial discretion: The

States made a considered decision to settle and accept

equitable relief plus a payment of $700 million. The district

court was under no obligation to let the settlement cabin the

injunction following the finding of liability against Google,

nor was the court required to pay lip service to the settlement

as a proxy for the public interest. Google’s suggestion that

the States’ settlement somehow should have driven the terms

of the injunction simply has no basis in law or fact. Even

more to the point, Google offers no concrete explanation

why the coexistence of the State settlement and the

injunction harms the public interest.

3. The Injunction Weighs Non-Parties’ Intellectual

Property and Security Interests

Google’s final two fact-based arguments do not accord

with the record or the terms of the injunction, in that they

raise intellectual property and security concerns that the

court was quite cognizant of and addressed in its remedy.

With respect to non-parties’ intellectual property interests,

the court heard expert testimony about those rare “one-in-a-

million situations,” wherein an Android app developer might

not want its products to be distributed over app stores other

than Google Play. Google proposed an opt-in mechanism,

64 EPIC GAMES, INC. V. GOOGLE LLC

whereas Epic offered the opt-out mechanism that the court

ultimately adopted: “Google will provide developers with a

mechanism for opting out of inclusion in catalog access for

any particular third-party Android app store.” This approach

reflects due consideration of developers’ intellectual

property interests as one of the many “relevant factors” in

crafting the injunction. Google swats at a gnat and misses in

its effort to bring down the injunction. La Quinta, 762 F.3d

at 880.

The same is true with respect to the injunction’s

treatment of non-parties’ security interests. Even setting

aside amici’s arguments that Google’s fear mongering

around security is “pretextual”—or that a more open

Android ecosystem could bring long-term security

benefits—the court had before it a robust record on the

potential security risks attendant to the catalog-access and

app-store distribution remedies. 19 As the explanatory order

laid out, that is why the injunction explicitly addresses these

risks in the app-store-distribution remedy, by allowing

19

Amicus briefs weighed in on both sides of the security issues. Former

national security officials warned that the injunction would “drastically

lower[] the barriers for potentially malicious third-parties to gain access

to the Google Play Store,” and the Chamber of Progress and other

interest groups worried that it “does not address what security

protections Google can provide for the new services it has been ordered

to supply.” In contrast, however, Microsoft proffered that “the idea that

Google’s restrictive practices are necessary to address [security] risks is

untenable,” noting that regulatory intervention in Europe has already

forced Google to permit in-app payment methods other than Google Play

Billing “without a security or privacy catastrophe.” The Electronic

Frontier Foundation went even further, suggesting that Google’s

“feudal” security model would be improved by the injunction in the long

run, because “the security offered by a monopolist is more fragile than

what a competitive market can provide.”

EPIC GAMES, INC. V. GOOGLE LLC 65

Google “to ensure that the platforms or stores, and the apps

they offer, are safe from a computer systems and security

standpoint.” It is also why the district court established the

Technical Committee to review and resolve “technical issues

about security and the like.” Again, these remedial measures

offer plainly articulated responses to the relevant factor of

non-parties’ security interests. They reflect an engagement

with the evidence presented in the record and, like all the

injunction’s remedies, a clear basis in that extensive factual

record.

G. Epic Has Standing

Lastly, Google misses the mark by challenging Epic’s

Article III standing to seek nationwide injunctive relief,

including the provisions that address catalog access, app-

store distribution, and the billing and anti-steering policies

that prohibit the Play Store from requiring or otherwise

favoring Google Play Billing. This argument goes to the

scope of the injunction, despite Google’s efforts to cloak it

as a jurisdictional issue and rope it into the current

controversy surrounding nationwide injunctions, recently

addressed by the Supreme Court in Trump v. CASA, Inc., 606

U.S. ----, No. 24A884, 2025 WL 1773631, at *4 (U.S. June

27, 2025). Google’s framing departs from the case law, and

the scope of a permanent injunction following a finding of

antitrust liability is hardly comparable to that of a

preliminary injunction on a constitutional question. CASA’s

holding about district courts’ authority under the Judiciary

Act of 1789 has no bearing on whether the district court here

exceeded its equitable powers under Section 16 of the

Clayton Act. The CASA court remarked at the outset that

individual plaintiffs’ standing was not at issue in that case.

Id. at n.2. It also clarified that a restriction on “universal

injunctions” does nothing to change the fact that “a

66 EPIC GAMES, INC. V. GOOGLE LLC

traditional, parties-only injunction can apply beyond the

jurisdiction of the issuing court.” Id. at n.1 (citing Steele v.

Bulova Watch Co., 344 U.S. 280, 289 (1952)).

The redressability element of standing—which Google

challenges here—is a question of “the relief that federal

courts are capable of granting.” Kirola v. City & Cnty. of

S.F., 860 F.3d 1164, 1176 (9th Cir. 2017); see also Seattle

Pac. Univ. v. Ferguson, 104 F.4th 50, 63 (9th Cir. 2024) (“[A

plaintiff] need only show that the court could fashion an

injunction that could redress its injuries.”). This

determination is distinct from the merits determination.

Kirola, 860 F.3d at 1175 (“[Article III’s] standards exist

apart from the merits, and are well established.”). Google’s

citations to Murthy are inapposite; unlike that situation, no

one contends that this injunction would be “unlikely to affect

the [alleged wrongdoer’s] decisions.” Murthy v. Mo., 603

U.S. 43, 74 (2024).

As for Google’s suggestion that Epic has shown no risk

of repeated injury caused by Play Store’s billing policies

because “Epic has not distributed apps on Play for years,”

we note that it was precisely Epic’s attempt to launch

Fortnite on the Play Store that led to this litigation. And

Google’s argument about the anti-steering provision is

foreclosed by Apple. 67 F.4th at 972 (upholding injunction

against anti-steering provision “because Epic is a competing

games distributor and would earn additional revenue but for

Apple’s restrictions”). Contrary to Google’s contentions, the

district court specifically noted trial evidence showing “the

anticompetitive nature of these anti-steering restrictions.”

Those anticompetitive effects, if the restrictions were not

enjoined, would continue to harm competition in the defined

markets of Android in-app billing and Android app

distribution, in which Epic is undisputedly a player. Nothing

EPIC GAMES, INC. V. GOOGLE LLC 67

more is needed to fulfill the constitutional minimum for

standing.

The ultimate scope of an injunction is reviewed for abuse

of discretion and is based on the merits—“not

redressability.” Seattle Pac., 104 F.4th at 63. To the extent

that Google challenges the district court’s exercise of

discretion in crafting the injunction, we disagree. The

nationwide prohibitions fit squarely within the district

court’s “large discretion” to craft equitable antitrust

remedies. Ford Motor, 405 U.S. at 573 (citation omitted).

These remedies and their scope are supported by the record

and the nature of the market, and we uphold them along with

the liability verdict and the entire injunction.

AFFIRMED.