Nos. 24-6256, 24-6274 (2025)
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Nos. 24-6256, 24-6274
IN THE
United States Court of Appeals
for the Ninth Circuit
EPIC GAMES, INC.,
Plaintiff-Appellee,
v.
GOOGLE LLC, et al.,
Defendants-Appellants.
On Appeal from the U.S. District Court for the Northern District of
California
Hon. James Donato, Nos. 3:20-cv-5671-JD, 3:21-md-02981-JD
BRIEF OF THE UNITED STATES OF AMERICA AND THE FEDERAL TRADE
COMMISSION AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE
ANISHA S. DASGUPTA
General Counsel
HENRY LIU
Director
SHAOUL SUSSMAN
Associate Director
KELLY SIGNS
Assistant Director
SYNDA MARK
Deputy Assistant Director
MARK HEGEDUS
Attorney
FEDERAL TRADE COMMISSION
600 Pennsylvania Ave., N.W.
Washington, DC 20580
(202) 326-2115
DOHA MEKKI
Acting Assistant Attorney General
JOHN W. ELIAS
Deputy Assistant Attorney General
DAVID B. LAWRENCE
Policy Director
SPENCER D. SMITH
Counsel
DANIEL E. HAAR
NICKOLAI G. LEVIN
PATRICK M. KUHLMANN
Attorneys
U.S. DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
950 Pennsylvania Ave., N.W. #3224
Washington, D.C. 20530-0001
(202) 305-4639
Counsel for the United States & the Federal Trade Commission
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................ii
INTERESTS OF AMICI ............................................................................ 1
STATEMENT ............................................................................................ 2
ARGUMENT ............................................................................................. 4
I.
Google Would Improperly Narrow District Courts’ Remedial
Authority .......................................................................................... 5
A. District Courts Have Broad Authority to Remedy
Monopolization .............................................................................. 6
B. Trinko Addresses Liability, Not Remedies for Monopoly
Maintenance .................................................................................. 8
C. The App-Store-Distribution and Catalog-Access Remedies Are
Reasonable Methods of Eliminating the Consequences of
Google’s Unlawful Conduct ......................................................... 16
D. Google Misstates Remedies Law in Other Ways ........................ 22
II. Google Makes Legally Unsound Liability Arguments .................. 26
A. Google’s Issue-Preclusion Argument Disregards Key MarketDefinition Principles ................................................................... 26
B. The Jury Was Not Required To Consider Proffered Out-ofMarket Benefits........................................................................... 30
CONCLUSION ........................................................................................ 36
CERTIFICATE OF COMPLIANCE ........................................................ 37
CERTIFICATE OF SERVICE................................................................. 38
i
TABLE OF AUTHORITIES
Cases
Page(s)
Aerotech International v. Honeywell International,
836 F.3d 1171 (9th Cir. 2016) ................................................................ 9
American Tobacco Co. v. United States,
328 U.S. 781 (1946) .............................................................................. 32
Associated Press v. United States,
326 U.S. 1 (1945) .................................................................................. 19
Authenticom, Inc. v. CDK Global, LLC,
874 F.3d 1019 (7th Cir. 2017) .............................................................. 13
Besser Manufacturing Co. v. United States,
343 U.S. 444 (1952) .................................................................. 16, 24, 25
Brown Shoe Co. v. United States,
370 U.S. 294 (1962) ........................................................................ 27, 28
Chicago Bridge & Iron Co. N.V. v. FTC,
534 F.3d 410 (5th Cir. 2008) ................................................................ 24
Deslandes v. McDonald’s USA LLC,
81 F.4th 699 (7th Cir. 2023) ................................................................ 34
Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U.S. 451 (1992) ........................................................................ 27, 35
Epic Games v. Apple,
559 F. Supp. 3d 898 (E.D. Cal. 2021) .................................................. 26
Epic Games v. Apple,
67 F.4th 946 (9th Cir. 2023), ......................................................... 26, 34
ii
Ford Motor Co. v. United States,
405 U.S. 562 (1972) ...................................................................... passim
FTC v. National Lead Co.,
352 U.S. 419 (1957) .............................................................................. 10
Image Technical Services, Inc. v. Eastman Kodak Co.,
125 F.3d 1195 (9th Cir. 1997) .................................................... 6, 22, 23
Impax Labs. v. FTC,
994 F.3d 484 (5th Cir. 2021) ................................................................ 34
In re NCAA Grant-in-Aid Cap Antitrust Litigation,
958 F.3d 1239 (9th Cir. 2020) .............................................................. 33
Intellectual Ventures I v. Capital One Financial,
937 F.3d 1359 (Fed. Cir. 2019) ............................................................ 30
International Boxing Club of New York v. United States,
358 U.S. 242 (1959) .............................................................................. 22
International Salt Co. v. United States,
332 U.S. 392 (1947) ...................................................................... passim
Klein v. Facebook, Inc.,
580 F. Supp. 3d 743 (N.D. Cal. 2022) .................................................. 21
Lair v. Bullock,
798 F.3d 736 (9th Cir. 2015) ................................................................ 19
Leegin Creative Leather Products, Inc. v. PSKS, Inc.,
551 U.S. 877 (2007) .............................................................................. 35
Massachusetts v. Microsoft,
373 F.3d 1199 (D.C. Cir. 2004) .................................................... passim
Mozart Co. v. Mercedes-Benz of North America, Inc.,
833 F.2d 1342 (9th Cir. 1987) .............................................................. 35
iii
National Society of Professional Engineers v. United States,
435 U.S. 679 (1978) ...................................................................... passim
NCAA v. Alston,
594 U.S. 69 (2021) ................................................................ 7, 12, 13, 33
NCAA v. Board of Regents of University of Oklahoma,
468 U.S. 85 (1984) ................................................................................ 34
Novell, Inc. v. Microsoft Corp.,
731 F.3d 1064 (10th Cir. 2013) .............................................................. 9
O’Bannon v. NCAA.,
802 F.3d 1049 (9th Cir. 2015) .............................................................. 35
Olin Corp. v. FTC,
986 F.2d 1295 (9th Cir. 1993) .............................................................. 29
Oltz v. St. Peter’s Community Hospital,
861 F.2d 1440 (9th Cir. 1988) ........................................................ 29, 30
Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd.,
20 F.4th 466 (9th Cir. 2021) ........................................................ passim
Otter Tail Power Co. v. United States,
410 U.S. 366 (1973) .............................................................................. 18
Pacific Bell Telephone. Co. v. linkLine Communications, Inc.,
555 U.S. 438 (2009) ................................................................................ 9
Paladin Associates v. Montana Power Co.,
328 F.3d 1145 (9th Cir. 2003) .............................................................. 33
Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health
System, Ltd., 778 F.3d 775 (9th Cir. 2015) ........................................... 4
iv
Schine Chain Theaters, Inc. v. United States,
334 U.S. 110 (1948) ................................................................................ 8
Smith v. Pro Football, Inc.,
593 F.2d 1173 (D.C. Cir. 1978) ............................................................ 34
Snoqualmie Indian Tribe v. Washington,
8 F.4th 853 (9th Cir. 2021) .................................................................. 27
Sullivan v. NFL,
34 F.3d 1091 (1st Cir. 1994) ................................................................ 35
Teradata Corp. v. SAP SE,
-- F.4th --, 2024 WL 5163082 (9th Cir. Dec. 2024) .............................. 30
United States v. Continental Can Co.,
378 U.S. 441 (1964) ........................................................................ 27, 28
United States v. Crescent Amusement Co.,
323 U.S. 173 (1944) ........................................................................ 12, 15
United States v. E.I. du Pont de Nemours & Co.,
366 U.S. 316 (1961) ...................................................................... 4, 5, 26
United States v. Glaxo Group Ltd.,
410 U.S. 52 (1973) ................................................................................ 22
United States v. Grinnell Corp.,
384 U.S. 563 (1966) ........................................................................ 31, 32
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) ........................................................ passim
United States v. National Lead Co.,
332 U.S. 319 (1947) .......................................................................... 7, 22
United States v. Pabst Brewing Co.,
384 U.S. 546 (1966) .............................................................................. 28
v
United States v. Philadelphia National Bank,
374 U.S. 321 (1963) .............................................................................. 31
United States v. Phillipsburg National Bank & Trust Co.,
399 U.S. 350 (1970) .............................................................................. 30
United States v. Topco Associates
405 U.S. 596 (1972) .............................................................................. 32
United States v. U.S. Gypsum Co.,
340 U.S. 76 (1950) .......................................................................... 11, 12
United States v. United Shoe Machinery Corp.,
110 F. Supp. 295 (D. Mass. 1953) ........................................................ 18
United States v. United Shoe Machinery Corp.,
391 U.S. 244 (1968) .......................................................................... 4, 18
US Airways, Inc. v. Sabre Holdings Corp.,
938 F.3d 43 (2d Cir. 2019) ................................................................... 28
Verizon Communications Inc. v. Law Office of Curtis V. Trinko, LLP,
540 U.S. 398 (2004) .............................................................. 8, 10, 11, 14
Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969) ................................................................................ 6
Statutes
15 U.S.C. § 1 .............................................................................................. 2
15 U.S.C. § 2 ........................................................................................ 2, 31
15 U.S.C. § 4……………………………………………………………………...6
vi
15 U.S.C. § 25…………………………………………………………………….6
15 U.S.C. § 26…………………………………………………………………….6
Rules
Federal Rule of Appellate Procedure 29(a)(2) .......................................... 1
Other Authorities
Department of Justice & Federal Trade Commission,
Merger Guidelines (2023) ................................................... 27, 28, 30, 31
vii
INTERESTS OF AMICI
The United States, through the U.S. Department of Justice’s
Antitrust Division, and the Federal Trade Commission enforce the
federal antitrust laws and have a strong interest in their correct
application.
The Commission submitted an amicus brief addressing
antitrust remedies in the district court, and the agencies jointly
submitted an amicus brief at the stay stage (Gov’t Stay Am. Br.)
addressing errors of law in defendants-appellants’ filing. The agencies
file this brief, pursuant to Federal Rule of Appellate Procedure 29(a)(2),
to address Google’s incorrect legal arguments that would improperly
restrict a district court’s broad authority to remedy antitrust violations,
misapply market-definition principles, and improperly require the jury
to consider proffered out-of-market benefits.1
1 The United States has ongoing civil litigation against Google.
The U.S.
District Court for the District of Columbia is considering remedies for
Google’s maintenance of monopolies in search-related markets. United
States v. Google LLC, 20-cv-3010-APM (D.D.C.). The U.S. District Court
for the Eastern District of Virginia recently held a trial on claims that
Google maintains monopolies digital-advertising-technology markets.
United States v. Google LLC, No. 1:23-cv-00108-LMB-JFA (E.D. Va.).
1
STATEMENT
Epic Games, Inc. develops video games, including the popular
Fortnite.
I-ER-24.
Fortnite can be played on smartphones running
Google’s Android operating system.
Id.
Epic distributed a Fortnite
Android app through Google Play—Google’s app store— starting in April
2020, until Epic’s relationship with Google broke down in August 2020
over restrictions Google imposed on apps distributed through Play. I-ER24-25.
Epic sought injunctive relief, claiming that Google violated Sections
1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. Id. Epic alleged, inter alia,
that Google employed an array of anticompetitive practices to monopolize
and unreasonably restrain trade in markets for (1) the distribution of
Android apps and (2) Android in-app billing services for digital
transactions. I-ER-26-27. For example, Google paid app developers to
not launch apps first or exclusively on app stores other than Play. I-ER40.
Additionally, Google entered into agreements with smartphone
manufacturers requiring them to install Play on the home screen and
paying them not to install any other app store on the device. I-ER-41-42.
Further, Google took steps to impede users from “sideloading” competing
2
app stores—i.e., directly installing the store on a device rather than
downloading it through Play. I-ER-42. Finally, agreements with app
developers prevented use of third-party payment solutions. I-ER-43.
The jury returned a unanimous verdict that Google violated
Sections 1 and 2. I-ER-52-57. Google moved for judgment as a matter of
law, “firing a barrage of objections and allegations of error,” which the
court denied. I-ER-27.
After “extensive post-verdict hearings,” I-ER-8, the district court
granted a permanent injunction that, for three years, prohibits Google
from engaging in practices found to be illegal; requires Google to
distribute third-party app stores through Play (the app-store-distribution
remedy); and requires Google to allow third-party app stores access to
Google’s app catalog (the catalog-access remedy). I-ER-3-5. The court
“narrowly tailored”
the app-store-distribution and
catalog-access
remedies “to remediate the unfairly enhanced network effects Google
reaped without unfairly penalizing its success as a first mover.” I-ER-17.
Google may take reasonable measures to ensure that third-party
app stores are safe and charge a “reasonable fee” “based on Google’s costs”
for those services.
I-ER-5.
The injunction establishes a Technical
3
Committee to resolve disputes, with members appointed by Epic and
Google. Id.
ARGUMENT
“The key to the whole question of an antitrust remedy is of course
the discovery of measures effective to restore competition.” Saint
Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke’s Health Sys., Ltd., 778 F.3d
775, 792 (9th Cir. 2015) (quoting United States v. E.I. du Pont de Nemours
& Co., 366 U.S. 316, 326 (1961)). Google, however, asks this Court to
adopt rules that, in many cases, would prevent a district court from
discharging its “duty” to prescribe relief sufficient to “restore workable
competition in the market.” United States v. United Shoe Mach. Corp.,
391 U.S. 244, 250 (1968). Google argues that the liability standard for
unilateral refusals to deal with rivals—which addresses unique policy
concerns arising in a narrow set of cases—should apply to remedies across
the board. It misstates this Court’s legal framework for remedies. And
it disregards precedent establishing that a court may make an injunction
more effective by requiring a defendant to provide services at a
reasonable rate or establishing a technical committee.
Google likewise misstates rules of antitrust liability. In arguing for
4
issue preclusion, it ignores the basic principles that market definition is
a fact-specific inquiry and that different circumstances lead to different
relevant markets. And it wrongly argues that it was entitled to a jury
instruction stating that it could justify its conduct by proffering
procompetitive benefits outside the relevant market where competition
was harmed. This Court should reject Google’s misinterpretations of the
Sherman Act.
I.
Google Would Improperly Narrow
Remedial Authority
District
Courts’
In challenging the app-store-distribution and catalog-access
remedies, Google asks this Court to place unwarranted limitations on a
district court’s authority to remedy monopolization.
Considered
individually, Google’s arguments are wrong. Taken as a whole, they
could prevent district courts from devising effective remedies for
monopolization in this case and others. Antitrust litigation is “a futile
exercise if the [plaintiff] proves a violation but fails to secure a remedy
adequate to redress it.” du Pont, 366 U.S. at 323.
5
A. District Courts Have Broad Authority to Remedy
Monopolization
1.
Congress authorized injunctions in private antitrust cases
under 15 U.S.C. § 26 not “merely to provide private relief” but to “serve
as well the high purpose of enforcing the antitrust laws.”2 Zenith Radio
Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 130-31 (1969). Remedies for
Section 2 violations therefore must do more than end the offending
conduct while leaving competition wanting.
They must “unfetter a
market from anticompetitive conduct and pry open to competition a
market that has been closed by defendants’ illegal restraints.” Ford
Motor Co. v. United States, 405 U.S. 562, 577-78 (1972) (emphasis added).
Thus,
“[i]f
the
jury
finds
that
monopolization
or
attempted
monopolization has occurred, the available injunctive relief is 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, 20 F.4th at
2 The United States brings suits for injunctive relief under 15 U.S.C. §§
4 & 25. This Court has relied on precedent from federal enforcement
actions when reviewing injunctions in private cases. See Optronic Techs.,
Inc. v. Ningbo Sunny Elec. Co., Ltd., 20 F.4th 466, 486-87 (9th Cir. 2021);
Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1225-26
(9th Cir. 1997).
6
486 (quoting United States v. Microsoft Corp., 253 F.3d 34, 103 (D.C. Cir.
2001)).
District courts are “clothed with ‘large discretion’” to meet these
distinct ends. Ford, 405 U.S. at 573 (quoting Int’l Salt Co. v. United
States, 332 U.S. 392, 401 (1947)). An injunction need not be limited to
the specific means the defendant used to maintain its monopoly, see
Optronic, 20 F.4th at 486, and can include “forward-looking provisions”
to restore competitive conditions, Massachusetts v. Microsoft, 373 F.3d
1199, 1215-1225 (D.C. Cir. 2004).
District courts should exercise “a
healthy dose of judicial humility,” NCAA v. Alston, 594 U.S. 69, 107
(2021), but it remains their “duty” to “make the remedy as effective as
possible,” United States v. Nat’l Lead Co., 332 U.S. 319, 334 (1947).
2. In crafting an effective remedy for monopolization of digital
markets, a district court should consider 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.
See I-ER-17.
Network effects and data-feedback loops can
amplify the effects of anticompetitive conduct in these markets,
7
entrenching monopoly power. See Microsoft, 253 F.3d at 55 (network
effects create a “chicken-and-egg” situation in which the dominant
platform becomes difficult to dislodge). Accordingly, remedies in digital
markets will often need to do more than merely enjoin the specific
exclusionary conduct to restore competition to the market effectively.
Otherwise, a monopolist would not be adequately deterred from engaging
in the conduct because it would know in advance that it could entrench
its monopoly unlawfully and then keep its illegally obtained advantages
after the conduct is enjoined. See Schine Chain Theaters, Inc. v. United
States, 334 U.S. 110, 128 (1948) (“If all that was done was to forbid a
repetition of the illegal conduct, those who had unlawfully built their
empires could preserve them intact. They could retain the full dividends
of their monopolistic practices and profit from the unlawful restraints of
trade . . . .”).
B. Trinko Addresses Liability, Not Remedies for Monopoly
Maintenance
At the stay stage, Google’s attack on the district court’s injunction
relied heavily on Verizon Communications Inc. v. Law Office of Curtis V.
Trinko, LLP, 540 U.S. 398 (2004). Google argued that Trinko bars the
app-store-distribution and catalog-access remedies because Google was
8
not held liable for a unilateral refusal to deal with rivals. Mot. 16-19.3
The agencies explained that Supreme Court and Ninth Circuit precedent
foreclose this argument. Gov’t Stay Am. Br. 6-8.
Google has retreated from its earlier position but still overreads
Trinko. Google now suggests (also erroneously) that the app-storedistribution and catalog-access remedies cannot stand because they
contravene alleged policy considerations underpinning Trinko’s liability
standard.
Google Br. 59-64.
But remedying monopolization raises
distinct considerations.
1. Trinko addresses the narrow circumstances in which liability for
a unilateral refusal to deal with rivals violates Section 2. The case does
not address the available remedies for monopolization.4
This is an
important difference.
Amici supporting Google continue to argue wrongly that remedies
requiring dealing are limited to refusal-to-deal-with-rivals violations.
E.g., WLF Am. Br. 3-4.
4 Other cases cited by Google also address Section 2 liability for refusals
to deal, not remedies. Pac. Bell Tel. Co. v. linkLine Commc’ns Inc., 555
U.S. 438 (2009); Aerotech Int’l v. Honeywell Int’l, 836 F.3d 1171 (9th Cir.
2016); Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013).
Massachusetts, Google Br. 60, simply remarked on the general
“undesirability of having courts oversee product design,” 373 F.3d at
1208.
9
3
After monopolization has been found, “broad” injunctive relief is
available—and often necessary—to end the illegal conduct, deprive the
monopolist of the fruits of its violation, and restore competition. See
supra pp. 5-8. A violator does not “stand before the court in the same
position as one who has never violated the law.” Int’l Salt, 332 U.S. at
400. To be effective, antitrust remedies often must extend beyond simply
enjoining the conduct found unlawful. See, e.g., FTC v. Nat’l Lead Co.,
352 U.S. 419, 430 (1957) (court may restrict otherwise lawful conduct to
“preclude the revival of the illegal practices”).
That an injunction
impinges upon “rights that would otherwise be . . . protected” does “not
prevent [the court] from remedying the antitrust violations.” Nat’l Soc’y
of Prof’l Eng’rs v. United States, 435 U.S. 679, 697-98 (1978). Put simply,
there are consequences for breaking the law.
The antitrust policy considerations identified in Trinko apply
differently too.
Trinko imposed a heightened liability standard for
refusals to deal with rivals in the context of a comprehensive regulatory
scheme requiring such dealing because of the “costs” of “antitrust
intervention” in these circumstances. 540 U.S. at 414. But in remedying
an antitrust violation, a court is not weighing the “cost” and “benefits” of
10
antitrust liability. Id. There is a violation, and thus there needs to be
“antitrust intervention.” The court has the “duty” to impose a remedy “to
cure the ill effects of the illegal conduct, and assure the public freedom
from its continuance.” United States v. U.S. Gypsum Co., 340 U.S. 76, 88
(1950). There are significant public and private interests in “restor[ing]
competition” to a monopolized market. Optronic, 20 F.4th at 486. And
there is no more risk of “false positives,” Trinko, 540 U.S. at 414—a
positive liability determination has been made.
Additionally, the innovation incentives are quite different. In the
liability context, the Trinko court worried that requiring firms to share
their innovations with competitors would chill their incentives to
innovate. 540 U.S. at 408. But requiring sharing as a Section 2 remedy
does not affect innovation incentives across the economy; that remedy
comes into play only if a firm has violated Section 2, and thus should not
chill investment incentives of firms that do not plan to commit antitrust
violations.
Moreover, remedies for monopolization can facilitate
innovation by lowering barriers to entry (which can be unlawfully raised
or bolstered by anticompetitive conduct) and increasing incentives for
entrants and entrepreneurs to invest and innovate. Accordingly, courts
11
have imposed dealing requirements to remedy Section 2 violations
outside of refusal-to-deal-with-rivals cases. Optronic, 20 F.4th at 486.
Google points to Alston’s statement that “similar considerations”
apply at the liability and remedies stage. Google Br. 63. But Alston—
which did not involve monopolization—does not limit a district court’s
authority to issue forward-looking remedies, as Google suggests. There,
the Supreme Court simply stated that courts “must be sensitive to the
possibility that the continuing supervision of a highly detailed decree
could wind up impairing rather than enhancing competition.” 594 U.S.
at 102 (internal quotation omitted). This statement simply follows longestablished precedent that cautions against remedies involving
“cumbersome procedure[s]” but confirms the need for “effective,” even if
broader, injunctive relief. United States v. Crescent Amusement Co., 323
U.S. 173, 186, 190 (1944).
Google overreads the Court’s call for administrability as a
prohibition on proceeding at all. In reminding district courts of the
importance of “caution,” Alston, 594 U.S. at 106, the Court did not limit
the remedies available or abrogate the “duty” to “cure the ill effects of the
illegal conduct,” Gypsum, 340 U.S. at 88. It did not, as Google suggests,
12
lay down a rigid rule precluding particular remedies, including remedies
requiring dealing.5 Rather, it reiterated the long-standing principle that
a remedy should rest on a sufficient factual record, a legal analysis
“consistent with established antitrust principles,” and “a healthy dose of
judicial skepticism.” Alston, 594 U.S. at 107. District courts retain “large
discretion” to impose remedies sufficient to “restore competition,” Ford,
405 U.S. at 573, including dealing remedies, see infra pp. 22-23. Indeed,
in Alston, the Court affirmed a decree of similar detail to the decree here.
594 U.S. at 84-85.
Here, the district court heeded Alston. It afforded each side “a
virtually unlimited opportunity to present its views,” “narrowly tailored”
the remedies, rejected proposals that “threatened a degree of judicial
oversight that would amount to micromanagement of Google’s business,”
enlisted the aid of technical experts, and explained that it would address
issues arising during the remedy’s implementation. I-ER-8; I-ER-14; I-
5 Nor does Authenticom, Inc. v. CDK Global, LLC, 874 F.3d 1019 (7th Cir.
2017), support Google’s position. Contra Former Enforcers’ Am. Br. 12.
There, defendants were not monopolists, and the court reversed a
preliminary injunction because the case “center[ed] on agreements” and
under the circumstances the “proper remedy” for the alleged Section 1
violation was “to set the offending agreement aside.” Authenticom, 874
F.3d at 1026.
13
ER-17. In short, the district court exercised “‘caution’” by adopting “a
reasonable method of eliminating the consequences of the illegal
conduct”—i.e., measures sufficient to restore competition that do not
impose unnecessarily cumbersome procedures. I-ER-14; I-ER-19; I-ER21 (quoting Alston).
2. Google also misreads Trinko in arguing that “[c]ourts should not
require companies to create and offer ‘something brand new’ that is ‘not
otherwise marketed or available to the public’” as a remedy. Google Br.
59 (quoting Trinko, 540 U.S. at 410). Trinko does not speak to available
remedies for monopolization—just to liability. And what was “brand
new” there was a sharing obligation for certain telephone network
elements created by the 1996 Telecommunications Act. Trinko, 540 U.S.
at 410. Since that regulatory structure existed to “deter and remedy
anticompetitive harm,” the Court saw little benefit in imposing antitrust
liability on top for the defendant’s refusal to provide those elements to
competitors. Id. at 412. But here there is a jury verdict of monopolization
(and no such regulatory structure), and the district court saw the need to
impose the two provisions.
14
In any event, Google’s argument fails on its own terms. Google
already distributes apps and already makes its catalog of apps available
for download, so the injunction does not require it to create any new
services. If adding “new functionality” to distribute app stores alongside
other apps and creating “new infrastructure” to make its catalog
available in other app stores are “new services” (Br. 61) the same would
be true of many other established remedies. For example, a defendant
ordered to license patents for the first time likely will need to create
“infrastructure” for that licensing (e.g., personnel for executing and
administering the licenses). Or a manufacturer ordered to carry a rival’s
products in its retail outlets likely will need to establish infrastructure
for stocking and selling those products. But that has not stopped courts
from ordering such remedies.
Google complains that the remedy “carries a hefty price tag.”
Google Br. 62. But “[t]hose who violate the Act may not reap the benefits
of their violations or avoid an undoing of their unlawful project on the
plea of hardship or inconvenience.” Crescent, 323 U.S. at 189. Google
also complains that there is “no precedent” for the app-store-distribution
and catalog-access remedies. Google Br. 64. But a remedy must “fit the
15
exigencies of the particular case,” Int’l Salt, 332 U.S. at 401, and this
unique case involves multiple practices in a high-tech industry. It is no
surprise, then, that there may not be a prior remedy closely tracking
these remedies. Sometimes “innovation” is required for effective relief,
and “novelty is not synonymous with error.” Besser Mfg. Co. v. United
States, 343 U.S. 444, 449 (1952).
C. The
App-Store-Distribution
and
Catalog-Access
Remedies Are Reasonable Methods of Eliminating the
Consequences of Google’s Unlawful Conduct
Google is wrong that the app-store-distribution and catalog-access
provisions violate Optronic. Google Br. 64-67. Google argues that the
district court could not adopt these provisions without finding “‘a
significant causal connection between the conduct enjoined or mandated
and the violation found.’” Google Br. 64 (quoting Optronic, 20 F.4th at
486).
But Google improperly disregards the next two sentences in
Optronic: “But a district court may order an injunction ‘beyond a simple
proscription against the precise conduct previously pursued.’” 20 F.4th
at 486 (quoting Nat’l Soc’y, 435 U.S. at 698). “The reviewing court only
asks if ‘the relief [is] a reasonable method of eliminating the
consequences of the illegal conduct.’” Id.
16
Optronic makes clear that remedies for monopolization may go
beyond a simple injunction of the conduct found unlawful. “[B]road”
injunctive relief may be appropriate 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.’” Id. (quoting Microsoft, 253 F.3d at 103). The district court has
a duty to restore competition to the monopolized market, including
setting aside any competitive advantage the monopolist gained through
its anticompetitive conduct.
Id. (“[a]ntitrust relief must restore
competition” (citing Ford, 405 U.S. at 573)).
The district court did exactly as Optronic requires, and more. The
court noted that the jury heard extensive evidence of “barriers to insulate
the Play Store from competition,” including “network effects.” I-ER-1618. Further, it specifically found “that Google unfairly enhanced its
network effects in a way that would not have happened but for its
anticompetitive conduct,”6 and that the anticompetitive conduct and
6 The district court’s finding of “but-for” causation went well beyond what
is required in an antitrust case. Because of the difficulties in
“reconstruct[ing] a product’s hypothetical technological development in a
world absent the defendant’s exclusionary conduct,” Microsoft, 253 F.3d
17
enhanced network effects together “had the consequence of entrenching
and maintaining [Google’s] monopoly power.”
I-ER-16-17 (emphasis
added). The court concluded that, to restore competition, the remedy
needed to “overcome” Google’s “unfairly enhanced network effects” “by
providing access to the catalog of Play Store apps for a period of time
sufficient to give rival stores a fair opportunity to establish themselves.”
I-ER-16-17. Accordingly, the court crafted the app-store-distribution and
catalog-access
provisions
“to
remediate
the
anticompetitive
‘consequences’ of Google’s illegal conduct.” I-ER-15 (citing Prof’l Eng’rs,
at 79, it is often practically impossible for courts to find but-for-causation
as the district court did here. Proof of but-for causation is not necessary—
even for relief more extensive than the injunction here. The Supreme
Court’s opinion in United Shoe is illustrative. There, the district court
determined that the defendant was guilty of monopolization without
finding that the challenged practices were the but-for cause of the
defendant’s monopoly. United States v. United Shoe Mach. Corp., 110 F.
Supp. 295, 339-40 (D. Mass. 1953). Nevertheless, the Supreme Court
remanded the case for a determination whether divestiture was
necessary “to assure the complete extirpation of the illegal monopoly.”
391 U.S. 244, 251 (1968). It explained that the “principal object[]” of a
Section 2 remedy is to “extirpate practices that have caused or may
hereafter cause monopolization.” Id. at 251-52 (emphasis added); see
Otter Tail Power Co. v. United States, 410 U.S. 366, 369, 377 (1973)
(affirming “fencing in” relief without any but-for-causation finding).
18
435 U.S. at 697; Optronic, 20 F.4th at 486; and Microsoft, 253 F.3d at
103).
Google does not argue that the district court’s factual findings are
clearly erroneous. Lair v. Bullock, 798 F.3d 736, 745 (9th Cir. 2015). And
it ignores that the “fashioning of a decree in an antitrust case in such way
as to prevent future violations and eradicate existing evils[] is a matter
which rests largely in the discretion of the [district] court.” Associated
Press v. United States, 326 U.S. 1, 22 (1945).
Google likewise errs in suggesting that the district court had to do
more and expressly find “a ‘significant causal connection’ between any
conduct found to be anticompetitive and remedies that extend beyond
that conduct.” Google Br. 29. That makes little sense—a violation does
not “cause” a remedy for that violation.
Nor is such a requirement
mandated by this Court’s cases.
The language in Optronic which Google selectively quotes comes
from Microsoft and simply reflects that a remedy must be grounded in
the actual violation found.
In Microsoft, the district court found
violations of Sections 1 and 2 of the Sherman Act and ordered a
divestiture remedy. The court of appeals reversed or remanded as to two
19
of the three violations on which the remedy was grounded and then held
the narrowing of liability required vacatur of the remedy. It stated that
a district court “must base its [equitable] relief on some clear ‘indication
of a significant causal connection between the conduct enjoined or
mandated and the violation found directed toward the remedial goal
intended.’” 253 F.3d at 105 (internal quotation marks omitted). Though
“a district court is afforded broad discretion to enter that relief it
calculates will best remedy the conduct it has found to be unlawful,” id.,
the relief must be tied to the violations found.
Stated differently, there must be a “reasonable” nexus between the
remedy chosen and the remedial goals of eliminating the monopoly
position caused by the conduct, depriving the defendant of any advantage
gained through the violation, and preventing a recurrence of the
violation. Optronic, 20 F.4th at 486.
But Google is wrong to argue that
the court must “determine whether and how the company’s competitive
advantage—here, network effects—would have existed even without the
anticompetitive conduct.” Google Br. 65. Although the court must choose
a “reasonable method” of restoring competition to the monopolized
market, Optronic, 20 F.4th at 486, it does not have to reverse the precise
20
way Google entrenched its monopoly, see, e.g., Int’l Salt, 332 U.S. at 400
(“it is not necessary that all of the untraveled roads to the end be left
open”). Thus, even if the district court had not found that Google’s
anticompetitive
conduct enhanced
network effects
(it
did)
but
strengthened barriers to entry or harmed competition in other ways, the
district court could have adopted the two provisions as reasonable means
of lowering those entry barriers or redressing the harm to competition.
Google protests that the provisions “deprive [it] of legitimately
earned competitive advantages” and lessen its incentives to innovate.
Google Br. 65; see also id. at 66 (contending that the remedy “improperly
targeted [a] lawful advantage” and “extensive investments”). But Google
disregards the greater incentives for other firms to innovate that come
from prying open markets previously closed to competition. See supra
pp. 11-12. Indeed, one of the main objectives of an antitrust remedy is to
ensure that “[f]orces now at work in the marketplace may bring about a
deconcentrated market structure” that allows rivals to compete
effectively. Ford, 405 U.S. at 578. It is well established that network
effects can “create high barriers to entry,” Klein v. Facebook, Inc., 580 F.
Supp. 3d 743, 780 (N.D. Cal. 2022), and “lower[ing] a major barrier to
21
entry” is appropriate antitrust relief, Ford, 405 U.S. at 578. Thus, the
court chose a reasonable means of undoing the barriers enhanced by
Google’s conduct.
Cf. Massachusetts, 373 F.3d at 1218 (requiring
Microsoft to disclose APIs to allow interoperation with its platform
“represents a reasonable method of facilitating the entry of competitors
into a market from which [defendant’s] unlawful conduct previously
excluded them” (internal quotation marks omitted)).
D. Google Misstates Remedies Law in Other Ways
1. Google invents a “legal rule” that “‘direct price administration’
is beyond the judicial ‘function’” except “in narrow circumstances.”
Google Br. 68 (quoting Image Tech, 125 F.3d at 1225). Courts have
repeatedly required antitrust violators to provide goods or services at
reasonable rates in order to ensure “effective” relief.” E.g., United States
v. Glaxo Grp. Ltd., 410 U.S. 52, 62-64 (1973) (requiring “reasonableroyalty rates”); see also Int’l Boxing Club of N.Y. v. United States, 358
U.S. 242, 261 (1959) (requiring defendants to lease sports arenas to
competitors for “reasonable” rents); Nat’l Lead, 332 U.S. at 349-50 (the
term “reasonable” “frequently has been employed in Sherman Anti-trust
case consent decrees”).
Image Technical did not establish a general
22
prohibition
against
reasonable-pricing
provisions,
but
struck
a
reasonableness requirement because there was a better way to remedy
the violation there. 125 F.3d at 1225.
Google further errs in arguing that the reasonable-fee provision
serves no purpose. Google Br. 68-69. It plainly prevents Google from
undermining the decree by charging rival app stores exorbitant rates
that could undermine their competitiveness.
Google’s proposed
solution—non-discriminatory pricing—would not solve the problem as
Google could charge all its rivals consistently high but nondiscriminatory rates. Google attacks this provision because there is “no
established history of Google abusing the pricing of this service.” Google
Br. 69. But the district court was “not obliged to assume, contrary to
common experience, that a violator of the antitrust laws will relinquish
the fruits of his violation more completely than the court requires him to
do.” Int’l Salt, 332 U.S. at 400.
2. Google also errs in challenging the creation of the Technical
Committee. A technical committee can “clearly strengthen[]” a decree.
Massachusetts, 373 F.3d at 1244. It can provide “technical competence”
to ensure effective enforcement and “facilitate the resolution of
23
potentially complex and technologically nuanced disputes between [the
defendant] and others.” Id. (internal quotation marks omitted). Indeed,
following implementation of the remedy in Microsoft, the district court
praised the technical committee as a “lynchpin in the successful effort,”
which proved “far more effective than the use of a special master.” Tr.
29-30, United States v. Microsoft Corp., No. 98-1232(CKK) (Apr. 27,
2011), ECF No. 930.
Google asserts that “no U.S. court has ever imposed a technical
committee by judicial fiat.” Google Br. 73. But courts have imposed
similar arrangements in many cases.
E.g., Besser, 343 U.S. at 448
(committee to set the terms and reasonable rates for patent licenses);
Chicago Bridge & Iron Co. N.V. v. FTC, 534 F.3d 410, 441-42 n.18 (5th
Cir. 2008) (appointing a monitor to decide what assets will be divested a
“superior” and “efficient” method to resolve the issue).
Google also argues that the Committee’s structure offends “basic
principles of Article III adjudication.” Google Br. 73. But Besser blessed
a similar arrangement. Under both arrangements, the parties select
members for a committee, and those members in turn select an additional
member. I-ER-5; Besser, 343 U.S. at 448. In both cases, if the committee
24
cannot resolve a dispute, the court breaks the deadlock. Id. The Supreme
Court deemed this structure “entirely reasonable and fair.” Besser, 343
U.S. at 449.
Google offers no reason for this Court, at this stage, to reach a
different conclusion. The injunction provides that either “Google or Epic
may request a modification of the injunction for good cause.” I-ER-6. It
is not “good judicial administration to strike [a provision] when the
District Court purposefully has left the way open to remedy any such
situations if and when the need arises.” Int’l Salt, 332 U.S. at 401.
Instead, the “proper approach” is to place “the burden . . . upon the proved
transgressor to bring any proper claims for relief to the court’s attention.”
Nat’l Soc’y, 435 U.S. at 698-99.
3. Google’s claim that the catalog-access remedy “fail[s] to address
the intellectual property interests of non-parties” (Google Br. 86) is
similarly incorrect and premature. The injunction requires Google to
“provide developers with a mechanism for opting out of inclusion in
catalog access for any particular third-party Android app store.” I-ER-5.
Google does not explain why it should be excused from a good-faith effort
25
to implement the catalog-access remedy in manner that adequately
protects third-party IP rights.
Moreover, antitrust remedies can affect the rights of third parties.
E.g., du Pont, 366 U.S. at 316, 327-28 (that remedy would have tax
consequences for holders of defendant’s stock not a reason to deny an
effective remedy). If there is any problem with third-party IP rights, it
can be addressed later, with Google or the affected third parties bringing
the specific problem to the district court’s attention.
II.
Google Makes Legally Unsound Liability Arguments
Google contends that (1) Epic is precluded from arguing for markets
that do not include Apple and (2) the district court should have instructed
the jury that it could consider proffered procompetitive benefits outside
the relevant market. Google is wrong on both counts.
A. Google’s Issue-Preclusion Argument Disregards Key
Market-Definition Principles
Google contends that the finding in Epic Games v. Apple, 559 F.
Supp. 3d 898 (E.D. Cal. 2021), aff’d in part and rev’d in part, 67 F.4th
946 (9th Cir. 2023), that Apple and Google compete for mobile-gaming
downloads and mobile-gaming in-app transactions precludes Android-
26
only markets for app distribution and in-app billing services in this case.
Google Br. 31. But the legal standard for issue preclusion is not met here.
Issue preclusion requires that “the issue at stake was identical in
both proceedings.” Snoqualmie Indian Tribe v. Washington, 8 F.4th 853,
864 (9th Cir. 2021). But the market-definition issues here were not
identical to those in Apple because this case involves an array of
exclusionary practices by Google that were not present in Apple and,
accordingly, different evidence. See I-ER-30.
It is hornbook antitrust law that monopolization and rule-of-reason
claims should be resolved “on a case-by-case basis, focusing on the
‘particular facts disclosed by the record.’” Eastman Kodak Co. v. Image
Tech. Servs., Inc., 504 U.S. 451, 466-67 (1992). That includes “market
definition,”7 id. at 482, which necessitates “careful consideration based
upon the entire record,” United States v. Cont’l Can Co., 378 U.S. 441,
449 (1964). Just because parties compete in one market does not mean,
A relevant market is “an area of effective competition,” the “outer
boundaries” of which “are determined by the ‘reasonable
interchangeability of use or the cross-elasticity of demand between the
product itself and substitutes for it.’” Dep’t of Justice & Fed. Trade
Comm’n, Merger Guidelines § 4.3 (2023) (quoting Brown Shoe Co. v.
United States, 370 U.S. 294, 325 (1962)).
27
7
as a matter of law, that there cannot be a narrower or overlapping market
in which the parties do not compete.
The Supreme Court has long
recognized that, “within [a] broad market, well-defined submarkets may
exist which, in themselves, constitute product markets for antitrust
purposes.” Brown Shoe, 370 U.S. at 325; accord US Airways, Inc. v. Sabre
Holdings Corp., 938 F.3d 43, 64-67 (2d Cir. 2019) (plaintiff adequately
alleged submarket limited to defendant’s services). The Court likewise
has held that overlapping markets can be appropriately defined relevant
markets.
E.g., Cont’l Can, 378 U.S. at 456-57 (markets for metal
containers, glass containers, and metal and glass containers for certain
uses); United States v. Pabst Brewing Co., 384 U.S. 546, 550 (1966)
(recognizing three concentric geographic markets).
Markets can overlap because “[t]here may be effective competition
among a narrow group of products, and the loss of that competition may
be harmful, making the narrow group a relevant market, even if
competitive constraints from significant substitutes are outside the
group.” Merger Guidelines, supra, § 4.3. For example, “a merger to
monopoly for food worldwide would lessen competition in well-defined
relevant markets for, among others, food, baked goods, cookies, low-fat
28
cookies, and premium low-fat chocolate chip cookies.” Id. n.77. Likewise,
Amstel Light might belong to a light beer market that excludes other
Dutch beers and may also belong to an imported Dutch beer market that
excludes domestic light beers, with the relevant market depending upon
the challenged conduct.
Thus, Google is simply wrong to call the markets here inconsistent
with those in Apple because they “overlap. Google Br. 38; see Olin Corp.
v. FTC, 986 F.2d 1295, 1301 (9th Cir. 1993) (rejecting the argument that
it was “inconsistent to recognize a larger [] market once a relevant
[narrower] market has been identified”). Google likewise is incorrect in
arguing that the jury was “invited to decide anew whether Google and
Apple compete for mobile gaming transactions.” Google Br. 39. That was
not the question put to the jury here. It was asked only to determine
whether the markets that Epic proposed constituted “area[s] of effective
competition” based on the factual record before it, Oltz v. St. Peter’s Cmty.
Hosp., 861 F.2d 1440, 1447 (9th Cir. 1988), which it did.
It is of no moment that Epic presented some evidence pertaining to
Play in Apple. Google Br. 35. Because market definition is a tool for
understanding competitive dynamics, Oltz, 861 F.2d at 1448, which of
29
those overlapping markets is relevant can change when the challenged
conduct changes, even if the same products are involved, see, e.g., United
States v. Phillipsburg Nat’l Bank & Tr. Co., 399 U.S. 350, 360 (1970)
(submarkets that “would be clearly relevant” to “merger between a
commercial bank and another type of financial institution” were no basis
for ignoring “commercial banking” market in merger between two
commercial banks); Merger Guidelines, supra, § 4.3. Indeed, this Court
recently rejected an argument that two markets were “inconsistent”
because one included a party and the other did not, explaining that
“market definition must be tied to the theory of harm at issue.” Teradata
Corp. v. SAP SE, -- F.4th --, 2024 WL 5163082, at *7 (9th Cir. Dec. 2024).8
B. The Jury Was Not Required To Consider Proffered Outof-Market Benefits
Google errs in arguing that “the District Court improperly limited
the jury’s consideration of the procompetitive benefits of the challenged
conduct to the ‘relevant market[s].’” Google Br. 47. Specifically, Google
incorrectly maintains that it could rebut Epic’s prima facie showing of
8 Intellectual Ventures, cited Google Br. 38, is distinguishable because
there were no “material” differences in the antitrust counterclaims in
both cases involving the same parties. Intellectual Ventures I v. Cap. One
Fin., 937 F.3d 1359, 1370, 1377 n.7 (Fed. Cir. 2019).
30
anticompetitive effects in the relevant market by demonstrating
procompetitive benefits “outside of, but related to, the relevant product
markets.” Id.
Google concedes that out-of-market benefits cannot be considered
under Section
7
of
the
Clayton
Act’s express
prohibition of
anticompetitive mergers “in any line of commerce.” Id. at 48 (citing
United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 370 (1963)
(PNB)).
Google then asserts that, “[u]nlike the Clayton Act, “the
Sherman Act contains no such restriction.” Id. That is incorrect.
Section 2 prohibits monopolization of “any part of the trade or
commerce among the several States.” 15 U.S.C. § 2 (emphasis added).
Thus, by its text, Section 2 bars monopolization of any relevant market.
As the Supreme Court has held, the Section 2 language—“any part of the
trade or commerce”—and the Section 7 language—“any line of
commerce”—are equivalent: “We see no reason to differentiate between
‘line’ of commerce in the context of the Clayton Act and ‘part’ of commerce
for purposes of the Sherman Act.” United States v. Grinnell Corp., 384
U.S. 563, 573 (1966).
31
Moreover, the Court identified two elements for monopolization,
both referencing a relevant market: (1) “the possession of monopoly
power in the relevant market” and (2) “the willful acquisition or
maintenance of that power through exclusionary conduct.” Id. at 570-71
(emphases added). Additionally, the Court distinguished exclusionary
conduct from “growth or development as a consequence of a superior
product, business acumen, or historic accident.” Id. at 571. Purported
benefits of the conduct outside the relevant market do not improve the
superiority of a product or the business acumen with which it is sold. See
Am. Tobacco Co. v. United States, 328 U.S. 781, 784-85, 809 (1946)
(approving instructions that did not tell jurors they could consider outof-market benefits).
While the text of Section 1 does not refer to a relevant market,
United States v. Topco Associates laid down a general principal against
considering out-of-market benefits in Section 1 cases.
405 U.S. 596
(1972). Citing PNB, Topco stated that competition “cannot be foreclosed
with respect to one sector of the economy because certain private citizens
or groups believe that such foreclosure might promote competition in a
more important sector of the economy.” Id. at 610. A decision “to sacrifice
32
competition in one portion of the economy for greater competition in
another portion . . . must be made by Congress and not by private forces
or the courts.” Id. at 611.
Google incorrectly claims that more recent precedents entitle it to
a jury instruction that out-of-market benefits may justify harm to
competition in a relevant market. Google Br. 47-48. Consistent with
Topco, in Sherman Act cases, both this Court and the Supreme Court
have ordinarily considered only procompetitive benefits in the relevant
market. While a few such cases have discussed proffered out-of-market
benefits, they did not expressly endorse the cognizability of such benefits.
See, e.g., Alston, 594 U.S. at 87 (declining to consider whether a Section
1 defendant “may permissibly seek to justify its restraints in [one]
market by pointing to procompetitive effects they produce in [another]
market” because “the parties before us do not pursue this line”); Paladin
Assocs. v. Montana Power Co., 328 F.3d 1145, 1156 n.11 (9th Cir. 2003)
(declining to reach the issue).
Allowing out-of-market benefits to override anticompetitive harm
in a relevant market would undermine antitrust protections and is not
“judicially administrable.” In re NCAA Grant-in-Aid Cap Antitrust Litig.,
33
958 F.3d 1239, 1269 (9th Cir. 2020) (Smith, J., concurring); cf. Deslandes
v. McDonald’s USA LLC, 81 F.4th 699, 703 (7th Cir. 2023) (Easterbrook,
J.) (“One problem with this approach is that it treats benefits to
consumers (increased output) as justifying detriments to workers
(monopsony pricing). That’s not right . . . .”); Smith v. Pro Football, Inc.,
593 F.2d 1173, 1186 (D.C. Cir. 1978) (where harms and benefits are
disparate, it can be “impossible to ‘net them out’ in the usual rule-ofreason balancing”).9
Google overreaches in claiming that, “[f]or decades, the Supreme
Court has ‘considered cross-market rationales in Rule of Reason and
monopolization cases.’” Google Br. 47 (quoting Apple, 67 F.4th at 989).
Apple stated that “[t]he Supreme Court’s precedent on this issue is not
clear” and thus “decline[d] to decide the issue.” 67 F.4th at 989. Nor do
the other cases Google cites hold that, over plaintiffs’ objection, out-ofmarket benefits are cognizable. See NCAA v. Bd. of Regents of Univ. of
9 Google’s argument (Br. 52) that balancing is inappropriate unless Epic
proves a less restrictive alternative (LRA) is foreclosed by precedent,
which Google admits, id.; see also Impax Labs. v. FTC, 994 F.3d 484, 492
(5th Cir. 2021) (if a plaintiff fails to establish a LRA, “the court must
balance the anticompetitive and procompetitive effects of the restraint”).
34
Okla., 468 U.S. 85, 115-18 (1984) (rejecting two out-of-market
justifications on other grounds); Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877, 889-92 (2007) (rejecting per se rule for resale
price maintenance but not addressing scope of procompetitive benefits in
rule-of-reason cases); O’Bannon v. NCAA., 802 F.3d 1049, 1074-79 (9th
Cir. 2015) (concluding challenged restraints violated Section 1 because
an LRA achieved the same procompetitive effects); Mozart Co. v.
Mercedes-Benz of N. Am., Inc., 833 F.2d 1342, 1348-51 (9th Cir. 1987)
(rejecting plaintiff’s arguments that the justification was factually
“without merit” and that an LRA existed).10 Indeed, at the stay stage,
Google cited Sullivan v. NFL, 34 F.3d 1091 (1st Cir. 1994). Mot. 14. But
Sullivan held only that the jury may consider out-of-market benefits to
the extent they “ultimately have a beneficial impact on competition in
the relevant market itself.” 34 F.3d at 1113.
10 In the district court, Google claimed that Kodak supported its proposed
Section 2 instructions. IV-ER-800. But the proffered justifications in
Kodak—maintaining the quality of its service; reducing inventory costs;
and preventing free riding on investments—all self-evidently impacted
competition in the relevant markets for service and parts. Kodak, 504
U.S. at 482-86. The Court did not address the specific issue of whether
out-of-market benefits are cognizable, finding that factual disputes
precluded summary judgment. Id.
35
CONCLUSION
The Court should reject Google’s misstatements of law on antitrust
remedies and liability.
Respectfully submitted,
/s/ Patrick M. Kuhlmann
ANISHA S. DASGUPTA
General Counsel
HENRY LIU
Director
SHAOUL SUSSMAN
Associate Director
KELLY SIGNS
Assistant Director
SYNDA MARK
Deputy Assistant Director
MARK HEGEDUS
Attorney
FEDERAL TRADE COMMISSION
600 Pennsylvania Ave., N.W.
Washington, DC 20580
(202) 326-2115
January 7, 2025
DOHA MEKKI
Acting Assistant Attorney General
JOHN W. ELIAS
Deputy Assistant Attorney General
DAVID B. LAWRENCE
Policy Director
SPENCER D. SMITH
Counsel
DANIEL E. HAAR
NICKOLAI G. LEVIN
PATRICK M. KUHLMANN
Attorneys
U.S. DEPARTMENT OF JUSTICE
ANTITRUST DIVISION
950 Pennsylvania Ave., N.W. #3224
Washington, D.C. 20530-0001
(202) 305-4639
patrick.kuhlmann@usdoj.gov
36
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CERTIFICATE OF SERVICE
I, Patrick M. Kuhlmann, hereby certify that on January 7, 2025, I
electronically filed the foregoing Brief of the United States of America
and Federal Trade Commission as Amici Curiae in Support of DefendantAppellee with the Clerk of the Court of the United States Court of
Appeals for the Ninth Circuit by using the ACMS electronic filing system.
I certify that all participants in this case are registered ACMS users and
that service will be accomplished by the ACMS system.
January 7, 2025
/s/ Patrick M. Kuhlmann
Attorney for the
United States of America
38
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