Petition for Writ of Certiorari — Google LLC, et al., Petitioners v. Epic Games, Inc., a Maryland Corporation

Supreme Court briefOct 27, 2025

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APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A—Ninth Circuit’s Opinion

(July 31, 2025) (ECF No. 200) ............................ 1a

APPENDIX B—District Court’s Permanent

Injunction (Oct. 7, 2024) (ECF No. 1017)......... 67a

APPENDIX C—District Court’s Order re:

UCL Claim and Injunctive Relief (Oct. 7,

2024) (ECF No. 1016)........................................ 72a

APPENDIX D—District Court’s Order re:

Google’s Renewed Motion for Judgment

as a Matter of Law (July 3, 2024) (ECF

No. 984) ............................................................. 97a

APPENDIX E—Ninth Circuit’s Order

Denying Rehearing (Sept. 12, 2025)

(ECF No. 261) .................................................. 139a

APPENDIX F—Ninth Circuit’s Order

Denying Stay of Permanent

Injunction/Mandate (Sept. 12, 2024)

(ECF No. 262) .................................................. 141a

APPENDIX G—Trial Transcript – Volume

17 (Dec. 11, 2023) (ECF No. 867) (jury

instructions excerpts) ..................................... 147a

APPENDIX A

_________

FOR PUBLICATION

_________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________

IN RE: GOOGLE PLAY STORE ANTITRUST LITIGATION

_________

EPIC GAMES, INC., a Maryland Corporation,

Plaintiff-Appellee,

GOOGLE LLC; GOOGLE IRELAND, LTD.; GOOGLE

COMMERCE, LTD.; GOOGLE ASIA PACIFIC PTE, LTD.;

GOOGLE PAYMENT CORP.,

Defendants-Appellants.

_________

No. 24-6256

D.C. Nos. 3:21-md-02981-JD, 3:20-cv-05671-JD

_________

EPIC GAMES, INC.,

Plaintiff-Appellee,

GOOGLE LLC; GOOGLE IRELAND, LTD.; GOOGLE

COMMERCE, LTD.; GOOGLE ASIA PACIFIC PTE, LTD.;

GOOGLE PAYMENT CORP.,

Defendants-Appellants.

_________

Nos. 24-6274, 25-303

D.C. No. 3:20-cv-05671-JD

_________

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

_________

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 inapp purchases would bypass the required paymentprocessing 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.

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 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 preinstalled onto their products. As a result, Android

runs on a variety of smartphones that are not Googlebrand devices. All non-Apple smartphones sold

worldwide, excluding China, use Android.

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.

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 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.”

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 revenuesharing 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.

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 jurytriable issues common to the parties’ legal and

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.

equitable claims would be decided in a single jury

trial. In April 2023, the 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

10a

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 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 appstore 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 verdict3 and the injunction.4

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.

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.

11a

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 counterclaims. Nor did the district

court abuse its discretion in declining to give a singlebrand 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

12a

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

definition).5 That single determination, however, does

not 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

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 appeal.

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

preclusion issue.

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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 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 nonpretextual,

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

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

14a

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 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 marketdefinition 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

Enforce Injunction, 4:20-CV-05640-YGR, 2025 WL 1260190, at

*1 (N.D. Cal. Apr. 30, 2025).

15a

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” 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,

16a

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 Appleunique 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 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

17a

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 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

18a

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 inapp 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 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

19a

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-specific market definition applicable here was

not “actually litigated” or “decided” in Apple. Love, 73

F.4th at 754.

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.

20a

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

21a

from the other plaintiffs. The district court rejected

that approach.

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.

22a

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 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.

23a

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 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.

24a

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 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”),

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-byclaim basis. See Fed. R. Civ. P. 38 advisory

committee’s note to 1937 amendment (stating Rules

25a

38 and 39 preserve the Seventh Amendment right to

a jury).8

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

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 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.

26a

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 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.”

27a

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 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

28a

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 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

29a

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 withdrawalof-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, “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

30a

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 carry9 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

experts . . . said a peep about a proposed relevant

market being based on a for[e]-market and after9

“[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 lifecycle 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.

31a

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 Androidcompatible 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

32a

Google in either the foremarket or aftermarket,

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

to that brand.

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 inapp 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.

33a

B. The Rule of Reason Does Not Require

Consideration

Procompetitive

Benefits Across Markets

In its effort to cast this case as a Google-versusApple 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 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

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

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.

34a

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) (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.

35a

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). 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

36a

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

The

court’s

order

began

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

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.

37a

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

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-storedistribution 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 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-storedistribution remedies. Responding to Google’s

concerns about the safety of products offered on the

Play Store, the injunction permits Google to adopt

38a

“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 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

39a

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 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.

40a

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 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

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.

41a

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 appdistribution market, by giving app stores a 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,

42a

“[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”

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

43a

legality of compelling a defendant 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 nondiscriminatory 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

44a

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 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 thirdparty 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’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)).

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.”

45a

“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

six-to-nine-month

estimate

for

implementation, in keeping with the injunction’s

eight-month timeline.

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 firstmover 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

46a

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 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,

47a

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 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

48a

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 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

49a

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 appdistribution 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

50a

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 thirdparty software applications already on the Play Store.

Google offers an additional challenge to the appstore- 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 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

51a

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 procompetitive 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] 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

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

1:00:20

(No.

24-6256),

ca9.uscourts.gov/media/video/?20250203/24-6256/.

52a

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 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

53a

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 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

54a

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 terms that “Google may not prohibit the

distribution of third-party Android app distribution

55a

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-storedistribution 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

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 thirdparty 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.”

56a

measures Google is currently taking for apps”). That

level of “reasonable 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-storedistribution remedies. The Technical Committee

offers a helpful resource to attend to the “nuts-andbolts 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

57a

“to determine how assets must be divided to effectuate

the order and its general remedial purpose”). One

court reviewing the establishment 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

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.”

58a

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 catalogaccess 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-storedistribution 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,

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

59a

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 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 trebledamage 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

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.

60a

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 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

61a

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).

2. The

State

Considered

Settlement

Was

Duly

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

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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, 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.

63a

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 appstore-distribution remedy, by allowing 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 non19

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.”

64a

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

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)).

65a

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

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.

66a

Nothing 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.

67a

APPENDIX B

_________

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

_________

IN RE GOOGLE PLAY STORE ANTITRUST LITIGATION

_________

MDL Case No. 21-md-02981-JD

Member Case No. 20-cv-05671-JD

_________

PERMANENT INJUNCTION

_________

Filed: 10/7/24

_________

This permanent injunction is entered in MDL

member case Epic Games, Inc. v. Google LLC et al.,

Case No. 20-cv-05671-JD, on the jury verdict against

Google under Sherman Act Sections 1 and 2, 15 U.S.C.

§§ 1, 2, and the Cartwright Act, Cal. Bus. & Prof. Code

§§ 16700 et seq., and the Court’s finding that Google

violated the California Unfair Competition Law, Cal.

Bus. & Prof. Code §§ 17200 et seq.

1. This injunction applies to Google LLC and each

of its parent, affiliated, and subsidiary entities,

officers, agents, employees, and any person in active

concert or participation with them, who receive actual

notice of this order by personal service or otherwise

(together, Google).

68a

2. Unless otherwise stated, the effective date of the

injunction is November 1, 2024.

3. The geographic scope of the injunction is the

United States of America.

4. For a period of three years ending on November

1, 2027, Google may not share revenue generated by

the Google Play Store with any person or entity that

distributes Android apps, or has stated that it will

launch or is considering launching an Android app

distribution platform or store.

5. For a period of three years ending on November

1, 2027, Google may not condition a payment, revenue

share, or access to any Google product or service, on

an agreement by an app developer to launch an app

first or exclusively in the Google Play Store.

6. For a period of three years ending on November

1, 2027, Google may not condition a payment, revenue

share, or access to any Google product or service, on

an agreement by an app developer not to launch on a

third-party Android app distribution platform or store

a version of an app that includes features not

available in, or is otherwise different from, the version

of the app offered on the Google Play Store.

7. For a period of three years ending on November

1, 2027, Google may not condition a payment, revenue

share, or access to any Google product or service, on

an agreement with an original equipment

manufacturer (OEM) or carrier to preinstall the

Google Play Store on any specific location on an

Android device.

8. For a period of three years ending on November

1, 2027, Google may not condition a payment, revenue

69a

share, or access to any Google product or service, on

an agreement with an OEM or carrier not to preinstall

an Android app distribution platform or store other

than the Google Play Store.

9. For a period of three years ending on November

1, 2027, Google may not require the use of Google Play

Billing in apps distributed on the Google Play Store,

or prohibit the use of in-app payment methods other

than Google Play Billing. Google may not prohibit a

developer from communicating with users about the

availability of a payment method other than Google

Play Billing. Google may not require a developer to set

a price based on whether Google Play Billing is used.

10. For a period of three years ending on November

1, 2027, Google may not prohibit a developer from

communicating with users about the availability or

pricing of an app outside the Google Play Store, and

may not prohibit a developer from providing a link to

download the app outside the Google Play Store.

11. For a period of three years, Google will permit

third-party Android app stores to access the Google

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

Play Store apps to users. For apps available only in

the Google Play Store (i.e., that are not independently

available through the third-party Android app store),

Google will permit users to complete the download of

the app through the Google Play Store on the same

terms as any other download that is made directly

through the Google Play Store. Google may keep all

revenues associated with such downloads. Google will

provide developers with a mechanism for opting out of

inclusion in catalog access for any particular thirdparty Android app store. Google will have up to eight

70a

months from the date of this order to implement the

technology necessary to comply with this provision,

and the three-year time period will start once the

technology is fully functional.

12. For a period of three years, Google may not

prohibit the distribution of third-party Android app

distribution platforms or stores through the Google

Play Store. Google is entitled 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, and do not offer illegal goods

or services under federal or state law within the

United States, or violate Google’s content standards.

The review measures must be comparable to the

measures Google is currently taking for apps proposed

to be listed in the Google Play Store. If challenged,

Google will bear the burden of proving that its

technical

and

content

requirements

and

determinations are strictly necessary and narrowly

tailored. Google may require app developers and app

store owners to pay a reasonable fee for these services,

which must be based on Google’s actual costs. Google

will have up to eight months from the date of this

order to implement the technology and procedures

necessary to comply with this provision, and the

three-year time period will start once the technology

and procedures are fully functional. For the duration

of this time period, the Technical Committee

described in paragraph 13 below will in the first

instance decide challenges to Google’s review

decisions, with the Court serving as the final word

when necessary.

71a

13. Within thirty days of the date of this order, the

parties will recommend to the Court a three-person

Technical Committee. Epic and Google will each select

one member of the Technical Committee, and those

two members will select the third member. After

appointment by the Court, the Technical Committee

will review disputes or issues relating to the

technology and processes required by the preceding

provisions. If the Technical Committee cannot resolve

a dispute or issue, a party may ask the Court for a

resolution. The Technical Committee may not extend

any deadline set in this order, but may recommend

that the Court accept or deny a request to extend.

Each party will bear the cost of compensating their

respective party-designated committee member for

their work on the committee. The third member’s fees

will be paid by the parties in equal share.

14. The Court will retain jurisdiction over the

injunction for all purposes. Google or Epic may

request a modification of the injunction for good cause.

IT IS SO ORDERED.

Dated: October 7, 2024

/s/

JAMES DONATO

United States District Judge

72a

APPENDIX C

_________

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

_________

IN RE GOOGLE PLAY STORE ANTITRUST LITIGATION

_________

MDL Case No. 21-md-02981-JD

Member Case No. 20-cv-05671-JD

_________

ORDER RE UCL CLAIM AND INJUNCTIVE

RELIEF

_________

Filed: 10/7/24

_________

This order gives the reasons for the permanent

injunction to be entered in Epic Games, Inc. v. Google

LLC et al., Member Case No. 20-cv-05671-JD. It also

resolves Epic’s equitable claims against Google under

California’s Unfair Competition Law, Cal. Bus. &

Prof. Code §§ 17200 et seq.

BACKGROUND

In the order denying Google’s post-verdict motion for

judgment as a matter of law or a new trial, Dkt. No.

984 (JMOL Order),1 the Court discussed in detail the

Unless otherwise noted, all docket number references are to

the ECF docket for In re Google Play Store Antitrust Litigation,

Case No. 21-md-02981-JD.

73a

jury’s unanimous verdict against Google and the trial

evidence that supported the verdict. In summary,

after testimony by forty-five witnesses about Google’s

Play Store practices presented over fifteen days of

trial, the jury found in favor of Epic on: (1)

monopolization under Section 2 of the Sherman Act,

15 U.S.C. § 2; (2) unlawful restraint of trade under

Section 1 of the Sherman Act, 15 U.S.C. § 1, and the

California Cartwright Act, Cal. Bus. & Prof. Code §§

16700 et seq.; and (3) tying under Section 1 of the

Sherman Act and the Cartwright Act. Id. at 3-4; Dkt.

No. 866 (Jury Verdict). Epic’s equitable claim under

the California Unfair Competition Law is for the

Court to decide.2

Epic seeks an injunction as the remedy on the jury

verdict. To help determine an appropriate injunction,

the Court held extensive post-verdict hearings on

what an injunction should seek to accomplish, and

where it should refrain from acting. Epic kicked off

the proceedings by filing a proposed injunction. Dkt.

No. 952. Google responded with more than 90 pages of

objections. Dkt. No. 958. To ensure a fully developed

record on the remedy, the Court invited each side’s

experts to present their views in concurrent expert

evidentiary hearings. One hearing involved testimony

by four economists, two for each side of the case. Dkt.

No. 978. A second hearing involved technology experts

sponsored by Epic, and three Google engineers. Dkt.

No. 1001. In each hearing, the witnesses were directed

to focus their comments on issues specific to the jury

The Court is advised that the parties have resolved Google’s

breach of contract counterclaim and there are no remaining

counterclaims or defenses for resolution. Dkt. No. 1002.

74a

verdict and the facts in evidence at trial. See Dkt. Nos.

977, 1000. In conjunction with the hearings, the

parties filed statements by the economists, Dkt. Nos.

952, 957, and the technology experts and engineers.

Dkt. Nos. 981, 985. The Federal Trade Commission

filed an amicus brief, which the Court accepted. Case

No. 20-cv-05671-JD, Dkt. No. 686-1. After the

evidentiary hearings concluded, the Court heard

closing arguments from the parties on the issue of the

remedy. Dkt. No. 1000 at 95:18-155:1.

Overall, each side had a virtually unlimited

opportunity to present its views about the scope and

content of an injunction. Google’s request for even

more discussion is not well taken. See, e.g., Dkt. No.

958 at 11. Google took full advantage of the Court’s

open-ended procedures, as the voluminous postverdict docket entries readily attest. As the Court

noted in the JMOL Order, it bears mention that

Google has, on several occasions, fired a blunderbuss

of comments and complaints that are underdeveloped

and consequently unhelpful in deciding the issues. See

Dkt. No. 984 at 4. More of the same is not warranted

at this closing stage of the case.

DISCUSSION

I. THE UCL CLAIM

Before turning to the injunction, Epic’s final claim

under the California Unfair Competition Law (UCL)

must be resolved. The UCL prohibits “any [1]

unlawful, [2] unfair or [3] fraudulent business act or

practice.” Cal. Bus. & Prof. Code § 17200. Epic has

alleged that Google violated the unlawful and unfair

prongs of the UCL. Dkt. No. 378 ¶¶ 295-96. These are

equitable claims entrusted to the Court’s sound

75a

discretion. See Nationwide Biweekly Admin., Inc. v.

Superior Court of Alameda Cnty., 9 Cal. 5th 279, 292

(2020) (“the causes of action established by the UCL

. . . are equitable in nature and are properly tried by

the court rather than a jury”).

The disposition of the unlawful prong is

straightforward. The jury concluded that Google’s

Play Store conduct violated the Sherman Act and

Cartwright Act. See Dkt. No. 866. As Google has

rightly said, this means that Google necessarily

violated the unlawful prong of the UCL. See Dkt. No.

1000 at 152:2-21; see also Cel-Tech Commc’ns, Inc. v.

L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (“By

proscribing ‘any unlawful’ business practice, ‘section

17200 “borrows” violations of other laws and treats

them as unlawful practices’ that the unfair

competition law makes independently actionable.”)

(citation omitted).

The unfair prong is more nuanced because it is

“intentionally framed in . . . broad, sweeping

language, precisely to enable judicial tribunals to deal

with the innumerable new schemes which the fertility

of man’s invention would contrive.” Epic Games, Inc.

v. Apple, Inc., 67 F.4th 946, 1000 (9th Cir. 2023)

(internal quotations and citations omitted). California

state courts have formulated two tests relevant here.

To support “any finding of unfairness to competitors,”

the Court decides whether the defendant’s conduct

“threatens an incipient violation of an antitrust law,

or violates the policy or spirit of one of those laws

because its effects are comparable to or the same as a

violation of the law, or otherwise significantly

threatens or harms competition.” Cel-Tech, 20 Cal.

76a

4th at 186-87. To support a finding of unfairness to

consumers, the Court balances “the utility of the

defendant’s conduct against the gravity of the harm to

the alleged victim.” Progressive W. Ins. Co. v. Yolo

Cnty. Superior Court, 135 Cal. App. 4th 263, 285-86

(2005) (citation omitted). The inquiries are not

“mutually exclusive” and will have some substantive

overlap. Lozano v. AT & T Wireless Servs., Inc., 504

F.3d 718, 736 (9th Cir. 2007) (citing Schnall v. Hertz

Corp., 78 Cal. App. 4th 1144 (2000)).3

Whether Epic is characterized as a competitor (such

as the provider of a competing in-app billing service)

or a customer (such as a developer and distributor of

Android apps, including for a time on the Google Play

Store), the unfairness prong has been violated. The

jury found that Google’s conduct violated the antitrust

laws and substantially harmed competition in the

relevant markets, and directly injured Epic. The jury

rejected

Google’s

proffered

procompetitive

justifications for its conduct. Consequently, the Court

concludes that Epic has prevailed on the UCL claim

In Lozano, our circuit acknowledged that the question of “how

to define ‘unfair’ in the consumer action context after Cel-Tech”

has not been completely settled by the California courts. 504 F.3d

at 736 (emphasis omitted). More recently, our circuit stated that

“[u]nder the UCL’s unfairness prong, courts consider either: (1)

whether the challenged conduct is ‘tethered to any underlying

constitutional, statutory or regulatory provision, or that it

threatens an incipient violation of an antitrust law, or violates

the policy or spirit of an antitrust law,’; (2) whether the practice

is ‘immoral, unethical, oppressive, unscrupulous or substantially

injurious to consumers,’; or (3) whether the practice’s impact on

the victim outweighs ‘the reasons, justifications and motives of

the alleged wrongdoer.’” Doe v. CVS Pharmacy, Inc., 982 F.3d

1204, 1214-15 (9th Cir. 2020) (internal citations omitted).

77a

against Google under the unlawful and unfair prongs.

Judgment will be entered in favor of Epic.

II. THE INJUNCTION

A. Legal Standards

1. The Federal Antitrust Laws

An injunction on the federal antitrust verdict is

governed by Section 16 of the Clayton Act, 15 U.S.C.

§ 26. Under Section 16, “[a]ny person, firm,

corporation, or association” is entitled to “injunctive

relief . . . against threatened loss or damage by a

violation of the antitrust laws, . . . , when and under

the same conditions and principles as injunctive relief

against threatened conduct that will cause loss or

damage is granted by courts of equity.” To warrant an

injunction, a plaintiff “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.” Zenith Radio

Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130

(1969). Injunctive relief is “wholly proper” when there

is “nothing indicating that” a clear violation of the

antitrust laws that has already been found “had

terminated or that the threat to [plaintiff] inherent in

the conduct would cease in the foreseeable future.” Id.

at 131-32.

The plain words of Section 16 must be read with the

purpose of the antitrust laws in mind. “Antitrust laws

in general, and the Sherman Act in particular, are the

Magna Carta of free enterprise. They are as important

to the preservation of economic freedom and our freeenterprise system as the Bill of Rights is to the

protection of our fundamental personal freedoms.”

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United States v. Topco Assocs., Inc., 405 U.S. 596, 610

(1972); see also North Carolina State Bd. of Dental

Examiners v. F.T.C., 574 U.S. 494, 502 (2015)

(“Federal antitrust law is a central safeguard for the

Nation’s free market structures.”) (citing Topco, 405

U.S. at 610). The question has been asked whether our

tech-based economy has outgrown the federal

antitrust laws, which date back to 1890 when the

Sherman Act was signed into law. In the Court’s view,

it has not. The broad provisions of the Sherman Act

provide all of the tools needed to address the issues

presented in this case, as they have for over a century

in a constantly changing national economy. Google

has not suggested otherwise.

The tools available for a remedy are powerful. As the

Supreme Court has emphasized, injunctive relief

under Section 16 is meant to restore economic freedom

in the relevant markets and break the shackles of

anticompetitive conduct. “In exercising its equitable

jurisdiction, a federal court has broad power to

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.” Zenith, 395 U.S. at

132 (cleaned up); see also United States v. Loew’s, Inc.,

371 U.S. 38, 52 (1962) (relief should be “adequate to

prevent the recurrence of the illegality which brought

on the given litigation.”). “The relief in an antitrust

case must be effective to redress the violations and to

restore competition. The District Court is clothed with

large discretion to fit the decree to the special needs of

the individual case.” Ford Motor Co. v. United States,

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405 U.S. 562, 573 (1972) (quotations and citations

omitted). “Antitrust relief should unfetter a market

from anticompetitive conduct and ‘pry open to

competition a market that has been closed by

defendants’ illegal restraints.’” Id. at 577-78 (citation

omitted); see also United States v. Microsoft Corp., 253

F.3d 34, 103 (D.C. Cir. 2001) (“remedies decree in an

antitrust case must seek to unfetter a market from

anticompetitive conduct, 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.”) (quotations and citations omitted).

To these ends, the Court is charged with making “a

reasonable judgment on the means needed to restore

and encourage the competition adversely affected by”

the anticompetitive conduct. Ford Motor, 405 U.S. at

578; see also Nat’l Soc’y of Prof’l Eng’rs v. United

States, 435 U.S. 679, 697 (1978) (district court is

“empowered to fashion appropriate restraints on the

[defendant’s] future activities both to avoid a

recurrence of the violation and to eliminate its

consequences.”). A remedy is not limited simply to

prohibiting conduct found to be anticompetitive.

Rather, the Court has discretion to fashion a remedy

directed to the effect of the anticompetitive conduct.

See Mass. v. Microsoft Corp., 373 F.3d 1199, 1209

(D.C. Cir. 2004). As our circuit has concluded, “[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

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practices likely to result in monopolization in the

future.” Optronic Techs., Inc. v. Ningbo Sunny Elec.

Co., Ltd., 20 F.4th 466, 486 (9th Cir. 2021) (quotations

and citation omitted).4

2. UCL

The UCL provides an independent state-law basis

for an injunction. “Any person who engages, has

engaged, or proposes to engage in unfair competition

may be enjoined in any court of competent

jurisdiction.” Cal. Bus. & Prof. Code § 17203. For

Google’s UCL violations, the Court may make “such

orders . . . as may be necessary to prevent the use or

employment by any person of any practice which

constitutes unfair competition.” Id. To be sure, “[e]ven

where the UCL authorizes injunctive relief pursuant

to state law, a federal court must also ensure that the

relief comports with ‘the traditional principles

governing equitable remedies in federal courts.’ To

issue an injunction, the court must find: ‘(1) that [the

plaintiff] has suffered an irreparable injury; (2) that

remedies available at law, such as monetary damages,

are inadequate to compensate for that injury; (3) that,

considering the balance of hardships between the

plaintiff and defendant, a remedy in equity is

warranted; and (4) that the public interest would not

be disserved by a permanent injunction. Injunctive

relief should be no ‘more burdensome to the defendant

The California Cartwright Act also provides for an antitrust

injunction. See Cal. Bus. & Prof. Code Section 16750(a). The

parties have treated Epic’s Cartwright Act claims as being

coterminous with the Sherman Act claims for purposes of both

liability and remedy, and so no additional discussion of the

Cartwright Act is needed here.

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than necessary to provide complete relief to the

plaintiff[].’” Epic Games, 67 F.4th at 1002 (citations

omitted).

Epic did not need to spell out this four-factor test in

post-verdict briefing, for good reason. All of the

elements were thoroughly established by the jury

verdict and the evidence at trial. In pertinent part,

Epic established that it suffered an irreparable injury.

It was, in the language of the UCL, illegally and

unfairly foreclosed from using its own in-app billing

services while distributing its Fortnite app through

the Google Play Store because of Google’s

anticompetitive practices. Epic was also illegally and

unfairly foreclosed from competing in the market for

Android in-app billing services for digital goods and

services transactions, again because of Google’s

anticompetitive conduct. These harms are ongoing

and cannot be made right simply by Google writing

Epic a large check. Considering the balance of

hardships between Epic and Google, a remedy in

equity is warranted, and the public interest, which is

perfectly aligned with the restoration of free and

unfettered competition, would be well served by a

permanent injunction.

Consequently, injunctive relief on the UCL claim is

warranted, and the scope of that relief is coterminous

with the injunction for the violations of the antitrust

statutes. In setting the scope of the injunction, the

Court has been mindful that Google must not be

unduly inhibited in its ability to compete in legitimate

ways by, for example, improving its products or its

pricing.

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B. Geographic Scope

The initial question for the injunction is where it will

apply geographically. The jury found a relevant

geographic market of worldwide except for China for

both of the product markets, which was a conclusion

that was amply supported by the evidence at trial. See

JMOL Order at 14-15. Even so, the permanent

injunction is limited to the United States.

This is due mainly to principles of comity and

deference to the rights of other countries to address

anticompetitive conduct under their own laws and

regulations. The record indicates that enforcement

agencies around the world are investigating Google’s

conduct with respect to the Play Store. See, e.g., Dkt.

No. 700 at 3 (granting Google’s motion in limine to

“exclude evidence or argument re foreign proceedings

and investigations”); Dkt. No. 644-2 at ECF pp. 61-68

(discussing foreign investigations and regulatory

reports); see also Dkt. No. 958 (Google’s Objections) at

87-89 (describing extensive legal, investigative,

regulatory, and other informal proceedings underway

in foreign jurisdictions). It is neither the right nor the

duty of a United States court to preempt the

enforcement powers of other nations by imposing an

injunction that would operate within their borders.

Consequently, the Court elects, as a prudential

matter, not to interfere in the administration of

antitrust laws outside the United States. See Mujica

v. AirScan Inc., 771 F.3d 580, 598 (9th Cir. 2014)

(“International comity is a doctrine of prudential

abstention, one that ‘counsels voluntary forbearance

when a sovereign which has a legitimate claim to

jurisdiction concludes that a second sovereign also has

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a legitimate claim to jurisdiction under principles of

international law.’”) (citation omitted).

C. Specific Provisions On Anticompetitive

Conduct

“When it comes to fashioning an antitrust remedy,

we acknowledge that caution is key.” Nat’l Collegiate

Athletic Ass’n v. Alston, 594 U.S. 69, 106 (2021). Epic’s

proposed injunction made many good points, as did its

economists in the post-verdict proceedings. But Epic’s

proposal also threatened a degree of judicial oversight

that would amount to micromanagement of Google’s

business. It is not for the Court to decide the day-today business issues of Android app distribution and

in-app billing. See Verizon Commc’ns Inc. v. Law

Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 415

(2004) (Court should not “assume the day-to-day

controls characteristic of a regulatory agency”)

(quotations and citation omitted). Consequently, the

Court declines to impose several of the injunction

terms urged by Epic.

Even so, important remedial measures can be

imposed that do not demand excessive judicial

oversight. The trial made this determination a

straightforward task. For example, in light of the jury

verdict and supporting evidence, it is perfectly

appropriate that Google be enjoined from sharing Play

Store revenues with current or potential Android app

store rivals, and from imposing contractual terms that

condition benefits on promises intended to guarantee

Play Store exclusivity. Google itself agreed with these

conduct remedies. See Dkt. No. 1000 at 120:16-19

(Google’s counsel agreeing that “the two prohibitions

. . . that Dr. Bernheim discussed, those can be a part

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of the injunction with certain modifications”); id. at

98:21-105:9 (Epic’s counsel discussing Dr. Bernheim’s

two prohibitions). The prohibitions along these lines

are stated in paragraphs 4 through 8 of the injunction,

and they closely track the evidence of anticompetitive

conduct at trial as summarized in the JMOL Order.

See Dkt. No. 984 at 17-20.

The revenue share and contractual prohibitions will

be in effect for a period of three years. This is because

the provisions are designed to level the playing field

for the entry and growth of rivals, without burdening

Google excessively. See Mass. v. Microsoft, 373 F.3d at

1231-32 (Court’s task is to redress the harm done to

competition “by restoring conditions in which the

competitive process is revived and any number of

competitors may flourish (or not) based upon the

merits of their offerings.”). As competition comes into

play and the network effects that Google Play unfairly

enjoys are abated, Google should not be unduly

constrained as a competitor. Some of the prohibited

conduct might be legitimate when done by a company

without monopoly power. See Eastman Kodak Co. v.

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

J., dissenting) (“Where a defendant maintains

substantial market power, his activities are examined

through a special lens: Behavior that might otherwise

not be of concern to the antitrust laws -- or that might

even be viewed as procompetitive -- can take on

exclusionary connotations when practiced by a

monopolist.”) (citation omitted); see also McWane,

Inc., v. F.T.C., 783 F.3d 814, 836-37 (11th Cir. 2015)

(same).

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The injunction also includes provisions to remediate

the anticompetitive “consequences” of Google’s illegal

conduct. See Prof’l Eng’rs, 435 U.S. at 697; see also

Optronic Techs., 20 F.4th at 486 (Court may order

relief that represents a “reasonable method of

eliminating the consequences of the illegal conduct.”);

U.S. v. Microsoft, 253 F.3d at 103 (injunction should

“deny to the defendant the fruits of its statutory

violation.”).

The consequences to be remediated are intertwined

with the network effects of Google’s dominant position

in the relevant markets. The Court instructed the

jury, without objection by either side, that the Google

Play Store is a “two-sided platform market” that

“offers products or services to two different groups

who both depend on the platform to intermediate

between them.” Dkt. No. 850 (Final Jury Instructions)

at ECF p. 22 (No. 18). For the Play Store, “developers

who wish to sell their apps” are on one side of the

market and “consumers that wish to buy those apps”

are on the other. Id. “Network effects” in this context

means that the greater the number of developers, the

greater the number of users, and vice versa. As Google

put it in an internal slide that was introduced at trial,

Google understood that “Users come to Play because

we have by far the most compelling catalog of

apps/games,” and “Developers come to Play because

that’s where the users are.” Trial Tr. at 1211:231212:1.

Senior Google executive Jamie Rosenberg testified

about network effects in connection with the slide

deck entitled, “Amazon competitor deep dive,” which

was presented to Rosenberg’s team in 2017. Trial Tr.

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at 1207:13-22; Dkt. No. 886-50 (Trial Ex. 682). The

slides discussed the threat posed by the Amazon app

store, a potential competitor of the Google Play Store.

Trial Tr. at 1207:24-1208:1. Under the heading, “Good

News,” Google said that “Amazon is yet to establish

critical mass” and noted that “Play benefits from

network effects.” Id. at 1211:7-22. As Google

acknowledged in the slides, “Amazon will struggle to

break those network effects”: “Users won’t go to

Amazon because their catalog of apps/games is very

limited”; and “Developers won’t focus on Amazon

because they don’t have users.” Trial Tr. at 1212:5-9.

Other evidence along these lines was also presented

to the jury.

The picture drawn by this evidence is telling. Even

a corporate behemoth like Amazon could not compete

with the Google Play Store due to network effects.

Consequently, the injunction must overcome the

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. This will

be three years on the terms stated in the injunction.

Google’s main objection to catalog access is that the

anticompetitive conduct found by the jury was not

proven to be a significant cause of these network

effects. See Dkt. No. 1000 at 122:9- 11. Google says

that any network effects in the relevant market are

attributable to its role as a first mover in the markets,

and so are not subject to remediation.

The point is not well taken. The network effects

presented during trial are a feature of any two-sided

market such as the Google Play Store. Although

Google may legitimately claim some early mover

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advantage, it was not entitled to maintain and

magnify network effects, and thereby entrench its

dominant position, through the anticompetitive

conduct found by the jury. It bears emphasis that

Rosenberg’s testimony and the Amazon slides

concerned events in 2017, well after the original

launch of the Play Store and the start of the relevant

time period in August 2016. Eight months into the

time period in which Google engaged in

anticompetitive conduct, it was well aware that “to get

more developers, Amazon needs more users.” Id. at

1213:18-20. This frank admission was made precisely

while Google was erecting barriers to insulate the

Play Store from competition.

Consequently, the salient question is not whether

Google’s anticompetitive conduct caused the network

effects. Rather, the 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. In effect,

Google unfairly enhanced its network effects in a way

that would not have happened but for its

anticompetitive conduct.

This is why the injunction must not only prohibit the

specific anticompetitive conduct that Google engaged

in, but also undo the consequence of Google’s ill-gotten

gains. As the FTC aptly said in an amicus brief,

“[n]etwork effects can confer a powerful incumbency

advantage to dominant digital platforms, creating

barriers to entry and to competition. . . . The

incumbent platform operator -- which had been

motivated to attract both users and developers by

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offering innovative, low-cost services before

establishing dominance -- may become less

incentivized to compete after it achieves market

power and builds a moat insulating itself from

competition.” Dkt. No. 686-1 at 9. The injunction must

bridge the moat.

Even so, the catalog access provision is narrowly

tailored to remediate the unfairly enhanced network

effects Google reaped without unfairly penalizing its

success as a first mover. To that end, if a rival app

store does not have a relationship with a developer

and so cannot fulfill a download request by a user, the

rival will direct the download request to the Google

Play Store. In that case, the Google Play Store will

fulfill the download request and keep the associated

revenue, if any, and the download will be made

pursuant to the Google Play Store’s policies. All 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 despite

network effects and the disadvantage of offering a

“catalog of app/games” that is too “limited” to attract

users and developers in a two-sided market. Trial Tr.

at 1212:6-7.

So too for the injunction provision that prevents

Google from excluding rival app stores from the Play

Store. Witness Rosenberg testified that another

barrier faced by the Amazon app store was a

“significant hurdle to switching to Amazon APK.”

Trial Tr. at 1214:18. This referred to the fact that, to

get the Amazon store on their Android device, a user

would need to “sideload” it (i.e., download it from a

website or platform other than the Play Store), which

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subjected the user to a “quite complex” process

imposed by Google that “involve[d] 14 steps.” Id. at

1214:21-1216:22. Rosenberg agreed that “Google

recognized at the time that as a result of the unknown

source warning [resulting in at least 14 steps], the

hurdles [to download] were too high for most users.”

Id. at 1216:23-1217:2. Rosenberg also agreed that,

because the “Google Play Store is preloaded on the

home screen of virtually every Android phone through

the MADA,” and rival stores were excluded, a user

trying to download a rival app store outside the Play

Store would almost always face the barrier of the

“unknown sources install flow.” Id. at 1206:9-22.

Other witnesses at trial including other Google

executives testified that the “friction” Google built

into acquiring apps outside the Play Store was highly

effective in discouraging users from even trying. See,

e.g., Trial Tr. at 762:20-763:2, 1361:11-13. So for a

limited period of time, the injunction will lower 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.

As Google has suggested, there are potential

security and technical risks involved in making thirdparty apps available, including rival app stores. The

Court is in no position to anticipate what those might

be, or how to solve them. Consequently, Google will

have room to engage in its normal security and safety

processes. To the extent Google imposes requirements

along these lines on rival app stores, it will be bear the

burden when challenged of establishing that the

requirements were strictly necessary to achieve safety

and security for users and developers.

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Google has said on many occasions that catalog

access and hosting rival store apps amount to forcing

it to do business with rivals, in contradiction of “the

general rule” that “even monopolists ‘are free to

choose the parties with whom they will deal, as well

as the prices, terms, and conditions of that dealing.’”

Viamedia, Inc., v. Comcast Corp., 951 F.3d 429, 454

(7th Cir. 2020) (quoting Pacific Bell Tel. Co. v.

Linkline Commc’ns, Inc., 555 U.S. 438, 448 (2009)).

Not so. The Court has fully agreed for the duration of

this case that a refusal to deal with a potential rival

may not be the basis of antitrust liability. The jury

was expressly instructed on that point. Dkt. No. 850

at ECF p. 33 (No. 24). Nothing in the verdict or the

evidence at trial condemned Google for not extending

a helping hand to a rival.

The problem for Google is that the case is now in the

remedy phase, not the liability phase. The question at

hand is not whether Google violated the antitrust

laws by failing to aid rivals, but what measures are

necessary to restore fair competition in the face of the

barriers found by the jury. The jury heard abundant

evidence that Google used a variety of means to

ensure that the Play Store was the only fully

developed Android app marketplace for users and

developers. This evidence included the MADA and

RSA agreements and Google’s conditioning of access

by OEMs to Google’s Android services on

preinstallation of the Google Play Store on the home

screen of Android devices. The use of burdensome

“scare screens” to discourage sideloading of apps is

another example of evidence heard by the jury.

Requiring Google to allow other app stores to be

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distributed through the Play Store for a discrete

period is a modest step to correct the consequence of

unlawfully preventing rival stores from reaching

users and developers.

In this context, Google’s frequent mentions of Trinko

are misplaced. The Supreme Court affirmed the

district court’s dismissal of a complaint alleging

monopolization under Section 2 against Verizon for

not sharing access to its telephone network with

competitors as required by Congress in the

Telecommunications Act of 1996. Trinko, 540 U.S. at

401-02. The Supreme Court declined to extend the

reach of Aspen Skiing Co. v. Aspen Highlands Skiing

Corp., 472 U.S. 585 (1985), with the famous remark

that “Aspen Skiing is at or near the outer boundary of

§ 2 liability.” Trinko, 540 U.S. at 409. But the Court

also re-affirmed the holding of Aspen Skiing that

“[t]he high value that we have placed on the right to

refuse to deal with other firms does not mean that the

right is unqualified.” Id. at 408 (quoting Aspen Skiing,

472 U.S. at 601). The Court added that “[u]nder

certain circumstances, a refusal to cooperate with

rivals can constitute anticompetitive conduct and

violate § 2.” Id.

The Court ultimately determined that the situation

in Trinko did not rise to that level based on the specific

characteristics of the telecom industry. As the Court

instructed, “[a]ntitrust analysis must always be

attuned to the particular structure and circumstances

of the industry at issue.” Id. at 411. A factor of

“particular importance” was that Congress had

already created a regulatory structure in the

Telecommunications Act “designed to deter and

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remedy anticompetitive harm.” Id. at 412. The

protective hand of such regulation meant that any

additional benefit of antitrust enforcement would be

“small,” and that the “‘regulation significantly

diminishes the likelihood of major antitrust harm.’”

Id. (quoting Concord v. Boston Edison Co., 915 F.2d

17, 22 (1st Cir. 1990)). The Court also noted that the

complaint did not allege facts indicating that

Verizon’s conduct was prompted by “anticompetitive

malice” or “dreams of monopoly.” Id. at 409.

None of this has anything to do with the injunction

here. As discussed, this is not a case in which a refusal

to deal with a rival was the basis of Section 2 liability.

The facts, markets, and regulatory environment here

are also starkly different. Google seems to find a “vibe”

in Trinko to the effect that the remedy for a

monopolist’s anticompetitive conduct cannot involve

affirmative conduct with respect to a rival. Trinko

says nothing of the sort, and Google’s frequent

mention of the case is simply a red herring.

Google also overlooks the fact that an antitrust

remedy may trump what might be deemed traditional

boundaries of property rights. “Even constitutionally

protected property rights such as patents may not be

used as levers for obtaining objectives proscribed by

the antitrust laws.” Ford Motor, 405 U.S. at 576 n.11.

Section 16 “states no restrictions or exceptions to the

forms of injunctive relief a private plaintiff may seek,

or that a court may order. Rather, the statutory

language indicates Congress’ intention that

traditional principles of equity govern the grant of

injunctive relief.” California v. American Stores Co.,

495 U.S. 271, 281 (1990) (cleaned up). Consequently,

93a

the “purpose of relief in an antitrust case is ‘so far as

practicable, (to) cure the ill effects of the illegal

conduct, and assure the public freedom from its

continuance.’ Mandatory selling on specified terms

and compulsory patent licensing at reasonable

charges are recognized antitrust remedies.” United

States v. Glaxo Group Ltd., 410 U.S. 52, 64 (U.S. 1973)

(citations omitted). The Court may “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. [¶] The standard against which

the order must be judged is whether the relief

represents a reasonable method of eliminating the

consequences of the illegal conduct.” Prof’l Eng’rs, 435

U.S. at 697-98. It is “entirely appropriate” for an

injunction to “go[] beyond a simple proscription

against the precise conduct previously pursued.” Id. at

698. If a well-grounded fear arises that the injunction

is too broad, “the burden is upon the proved

transgressor to bring any proper claims for relief to

the court’s attention.” Id. (quotations omitted).

Our circuit’s conclusions in Optronic Technologies

further undermine Google’s position. There, the jury

“properly found that Orion had been forced to pay

inflated prices as a result of the market power exerted

by Sunny and Synta following the unlawful Meade

acquisition,” and so ordering Sunny to supply Orion

on non-discriminatory terms was a “reasonable

method of remedying the harm to [Orion].” Optronic

Techs., 20 F.4th at 486. This was true because the

district court “can order conduct to ‘avoid a recurrence

of the [antitrust] violation and to eliminate its

94a

consequences.’” Id. (quoting Prof’l Eng’rs, 435 U.S. at

698). The same goes here.

During closing arguments on the remedy, Google

also relied on Image Technical Services, Inc. v.

Eastman Kodak Co., 125 F.3d 1195 (9th Cir. 1997),

stating that “in that case, the Ninth Circuit said that

the district court had erred when it ordered Kodak to

sell parts that were manufactured by someone else.”

Dkt. No. 1000 at 127:21-25. In Google’s view, “it’s the

same thing here. It’s legal error to order Play to have

to distribute someone else’s app store. Same reasoning

as in Kodak.” Id. at 128:1-3.

This is an odd position to take. The circuit’s

reasoning in Kodak had nothing to do with Kodak’s

freedom not to deal with its rivals. The circuit

modified the portion of the district court’s injunction

that “require[d] Kodak to sell all parts for Kodak

equipment, whether or not Kodak manufactures those

parts.” Kodak, 125 F.3d at 1225. The circuit believed

that the “‘all parts’ requirement creates barriers for

non-Kodak original-equipment manufacturers by

requiring them to price replacement parts at levels

necessary to attract ISOs away from Kodak’s parts

counter. It also unnecessarily entrenches Kodak as

the only parts supplier to ISOs.” Id. As was the case

with Google’s reliance on Trinko, none of this bears on

the facts and issues in this case.

As discussed, the Court has no intention of running

Google’s business as a “central planner.” Trinko, 540

U.S. at 408; see also Dkt. No. 1000 at 127:8-10 (“I have

no intention of having a highly detailed decree that

ends up impairing competition or micromanaging as a

central planner.”). The terms of the injunction are

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plainly worded and largely self-executing, and will not

embroil the Court in day-to-day business operations.

To the extent technical issues about security and the

like come up, the injunction establishes a Technical

Committee made up of one person selected by each

side, plus a third person to be selected by the parties’

two nominees, to resolve the issue in the first

instance. The Court will act only as needed to resolve

issues that cannot be resolved by the committee.

D. Tying

Overall, the injunction breaks the illegal tie by

prohibiting Google from requiring that developers use

Google Play Billing in apps distributed on the Google

Play Store. Epic asked the Court to also prohibit what

it called an “economic” tie, see, e.g., Dkt. No. 977 at

92:23-93:1, which would have ensnared the Court in a

detailed rate-setting exercise beyond its proper role.

See Town of Concord, Mass. v. Boston Edison Co., 915

F.2d 17, 25 (1st Cir. 1990). There is no need for the

Court to take on that task because the remedy for the

monopoly violation under Section 2 will also resolve

the tying violation found by the jury. The restoration

of free competition in the relevant markets is the best

medicine for correcting fees and prices.

The Court has addressed Google’s main contentions

with respect to the injunction. As noted, Google’s

modus operandi in this case has been to deluge the

Court in an ocean of comments, many of which were

cursory and undeveloped. The Court declines to take

up Google’s objections that were not fully developed in

their presentation to the Court.

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CONCLUSION

A permanent injunction will be entered against

Google for Epic’s Sherman Act, Cartwright Act, and

UCL claims. The effective date of the injunction is

November 1, 2024, to give Google time to bring its

current agreements and practices into compliance.

After Epic’s attorney’s fees and costs are awarded, see

15 U.S.C. § 26, judgment will be entered for Epic on

the Sherman Act, Cartwright Act, and UCL claims,

and this MDL member case, Epic Games, Inc. v.

Google LLC et al., No. 20-cv-05671-JD, will be closed.

IT IS SO ORDERED.

Dated: October 7, 2024

/s/

JAMES DONATO

United States District Judge

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APPENDIX D

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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IN RE GOOGLE PLAY STORE ANTITRUST LITIGATION

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MDL Case No. 21-md-02981-JD

Member Case No. 20-cv-05671-JD

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ORDER RE GOOGLE’S RENEWED MOTION

FOR JUDGMENT AS MATTER OF LAW OR

FOR NEW TRIAL IN EPIC CASE

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Filed: 7/3/24

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After 15 days of trial, a jury found in favor of

plaintiff Epic Games Inc. on its antitrust claims

against Google. See Dkt. No. 866.1 Google had moved

for judgment as a matter of law at an appropriate

stage of the trial, which the Court denied. Dkt. Nos.

825, 831. Google renewed the motion post-verdict

under Federal Rule of Civil Procedure 50(b), with a

motion in the alternative for a new trial under Rule

59. Dkt. No. 925. The Court denied both motions. Dkt.

All docket number references are to the ECF docket for In re

Google Play Store Antitrust Litigation, Case No. 21-md-02981JD.

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No. 951. This order provides a detailed explanation for

that decision.

BACKGROUND

The Court presented the background of this

multidistrict antitrust litigation in other orders. See,

e.g., Dkt. Nos. 383, 588. In pertinent part, Epic is a

well-known video game and software developer, and

its apps include Fortnite, a popular online game.

Fortnite can be played on a variety of consoles and

devices, including smartphones running the Android

mobile operating system.

Epic distributed a Fortnite Android app through the

Google Play Store for a handful of months starting in

April 2020, until Epic’s relationship with Google broke

down in August 2020. A particular sticking point was

Epic’s objection to Google’s requirement that Epic use

Google’s billing system and pay Google a 30% fee on

all in-app purchases made by Fortnite users. Epic

wanted to use its own in-app payment solution and

not pay Google a 30% cut, which Google refused to

allow. Epic then deployed a “hotfix,” which was in

effect a covert app update that allowed Fortnite users

to use Epic’s payment system. Google responded by

removing Fortnite from the Google Play Store.

On the day that Fortnite was removed from the

Google Play Store, Epic filed this lawsuit against

Google LLC and certain of its affiliates alleging that

Google had engaged in anticompetitive conduct in

violation of the antitrust laws in connection with the

Google Play Store. Dkt. No. 1. As alleged in its second

amended complaint (SAC), Epic presented claims

under Sections 1 and 2 of the Sherman Act, 15 U.S.C.

§§ 1, 2; the California Cartwright Act, Cal. Bus. &

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Prof. Code § 16700 et seq.; and the California Unfair

Competition Law (UCL), Cal. Bus. & Prof. Code §

17200 et seq. Dkt. No. 378. Epic sought injunctive

relief only, and no monetary damages. Id. Google filed

counterclaims against Epic, including for breach of

the Google Play Developer Distribution Agreement

(DDA). Dkt. No. 386.

Epic’s lawsuit was consolidated into a multidistrict

litigation action along with similar antitrust

complaints filed by Google Play Store users and

developers, and the attorneys general of many states.

A substantial period of litigation ensued for all of the

member cases, and several important issues were

resolved in the pretrial stage. One was a

determination that Google had willfully failed to

preserve

relevant,

substantive

business

communications that were made by employees on the

Google Chat system. This determination required an

extensive inquiry by the Court that culminated in an

evidentiary hearing featuring witness testimony and

documents, and extensive findings of fact. See Dkt.

No. 469. Testimony at trial adduced even more

troubling evidence of improper assertions of the

attorney-client privilege by Google’s employees,

including its CEO, to keep communications secret,

and a widespread understanding within the company

that discussions of sensitive topics should be done in

a way that evaded preservation. See, e.g., Trial Tr. at

964:21-23, 991:16-992:8, 1075:20-1076:12, 1321:1724. 2 Another important pretrial determination was

“Trial Tr.” references are to the trial transcript, which

consists of 17 volumes with 3,442 total pages that are

consecutively numbered. The transcript can be found at Dkt. No.

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whether Google could evade a jury altogether by

asking for a bench trial at the very last moment. The

Court concluded, based on Google’s own conduct, that

it had consented to a jury trial. See id. at 6:13-7:16.

In time, the other cases went into settlement

proceedings. Epic’s case was tried by a jury of nine

citizens in November and December 2023. The parties

put on forty-five witnesses, including nine expert

witnesses, over the course of fifteen days of testimony.

More than three

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