Epic Games, Inc. v. Google LLC

Background

This pretrial order governed the jury trial in Epic Games, Inc. v. Google LLC and Match Group, LLC v. Google LLC, within the multidistrict Google Play Store antitrust litigation. It summarized rulings made at or after the October 19, 2023 final pretrial conference and established procedures for the trial.

Summary judgment

The court granted Google summary judgment on the plaintiffs’ claims that Google unlawfully prohibited distribution of other app stores on Google Play. The plaintiffs could refer to section 4.5 of the Developer Distribution Agreement for background and context, but could not argue that section 4.5 was unlawful by itself or together with other alleged practices.

The court deferred summary judgment on whether a per se or rule-of-reason standard would apply to the plaintiffs’ Section 1 claims concerning Google’s Games Velocity Program agreements with Riot, Activision, and Supercell. The court said material facts were disputed regarding the applicable standard and that it would decide the issue before final judgment.

The court denied summary judgment on the plaintiffs’ tying claims because it found Google’s primary cited case inapplicable and found genuine disputes of material fact concerning coercion. The court also denied in its entirety Match Group’s requests for partial summary judgment on Google’s counterclaims because numerous material facts were disputed. The court stated that punitive damages could not be mentioned at trial unless it expressly authorized doing so.

Motions in limine

The court granted the plaintiffs’ motions to exclude evidence and argument about the outcome of the Epic v. Apple litigation and about other litigation, investigations, and settlements involving the plaintiffs. It granted in part the motion concerning Tencent Holding Ltd.’s domicile: Google could ask one witness once about Tencent’s domicile, but additional references were excluded.

For Google’s motions, the court denied the request to prevent Epic from arguing that the Apple App Store and Google Play Store are in separate markets. The court also denied Google’s request to exclude evidence or argument concerning privilege issues, except that the plaintiffs could not comment on privilege designations appearing on documents produced in discovery. The court denied Google’s request to exclude evidence about its 2019 negotiations with Samsung concerning Samsung’s Galaxy Store.

The court granted Google’s request to exclude evidence and argument about other lawsuits or settlements in the multidistrict litigation, subject to exceptions if the opposing party opened the door or the plaintiffs obtained prior court approval after filing a proffer. The parties resolved the motion concerning Google employees’ compensation, stock holdings, and net worth by agreement. The court granted Google’s requests to exclude evidence and argument about federal government reports and about foreign proceedings and investigations, while allowing testifying experts to rely on the underlying facts without mentioning the reports, decisions, or investigations in their testimony.

Destroyed chat evidence

After an evidentiary hearing and other proceedings, the court concluded that Google intentionally failed to preserve relevant evidence from its chat-message system and that the failure prejudiced the plaintiffs. Under Federal Rule of Civil Procedure 37(e)(2), the court determined that a permissive adverse-inference jury instruction was a reasonable and proportionate remedy. Such an instruction would allow, but not require, the jury to draw an unfavorable inference from the evidence-preservation failure.

Depending on the proof at trial, the instruction could refer to one or more of eight categories of evidence identified by the plaintiffs: agreements with original equipment manufacturers, mobile application distribution agreements with original equipment manufacturers, Google’s efforts to pay Samsung not to compete, Project Hug, Google’s arguments not to compete with ABK, Riot, and Supercell, September 2020 changes to Google Play’s business model, Project Runway, and Google’s relationship with Apple. The plaintiffs could question witnesses about Google’s chat-retention and preservation practices. The court would give the instruction at the end of the case, but the plaintiffs could not mention the instruction in opening statements.

Trial procedures and schedule

The court provided each side up to 45 hours of trial time, 45 minutes for opening statements, and one hour for closing arguments, subject to the stated conditions. Jury selection was set for November 2, 2023, and trial was set to begin on November 6, 2023. The court indicated it would likely seat 10 jurors and allowed three peremptory challenges per side.

The order also addressed juror questions, witness exclusion, witness disclosures, objections, exhibits, expert testimony, jury notebooks, electronic trial exhibits, proposed preliminary jury instructions, and related courtroom procedures. Plaintiffs could present all three relevant markets identified by their experts to the jury if they wished.