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Epic Games' court dates with Apple and Google pushed into 2024

Judge ponders battle royale between all three to avoid unhelpful overlaps

Proceedings in the legal dispute between Epic Games and Apple have bogged down in Australia, and won't reach a courtroom until 2024.

A Monday ruling of the nation's Federal Court decided that, as Google and Epic are also fighting over essentially the same issues, it makes no sense for Epic and Apple to air their grievances separately, as was planned for November 2022.

Unlike most competition cases, a large quantity of data about actual consumer behaviour will be available

Epic and Apple had already told the court they would not be ready by November, which led Justice Nye Perram to push the hearing into 2023. Epic and Google, meanwhile, had told the court they would not be ready to front until late 2023 or early 2024.

Perram felt that assessment was optimistic, so has scheduled 18 weeks commencing in March 2024 to hear both cases.

But the judge is also worried that the cases will be very difficult to manage, because both address essentially the same issue: whether Apple's App Store and Google's Play Store lessen competition, as Epic alleges they did by excluding Epic's game Fortnite after it bypassed their payment schemes. Perram therefore pondered that one case could resolve issues raised in the other.

"For example, if in the Apple case, Epic is found to be correct and that the iOS App Distribution Market consists of the provision of distribution services to the developers of apps on the iOS platform, then this necessarily implies that the App Store does not compete in relation to gaming with the Google Play Store," he wrote. "Having made that finding, could it then be concluded in the Google case that the Android App Distribution Market is in fact a market of two-sided transaction platforms providing services to both consumers and developers and that the platforms compete with each other?"

Because of the significant potential for such collisions, Perram can't yet decide how the cases should best be heard. He's floated the following options:

  1. The two cases will be consolidated into one case and heard together with evidence in one being evidence in the other;
  2. The two cases will be heard together but they will maintain their separate identities;
  3. The two cases will be heard sequentially, with the parties in each case not being permitted to participate in the other;
  4. The two cases will be heard sequentially with the parties in each case permitted to participate in the other to the extent of any common issues;
  5. The two cases will be heard sequentially but by some mechanism any common issues will be tried together; or
  6. One of the cases will reallocated to another judge and heard separately with, or without, a right of participation in the other case.

Lawyers representing Google and Apple are happy for the nature of the hearing to remain undecided for now.

"The best approach is to manage the two cases in tandem towards a trial and, once more is known, to square up to the many procedural problems at that time. In other words, let us wait and see," Justice Perram wrote.

Hovering in the background are Epic's cases against Apple and Google in other jurisdictions – especially matters expected to reach US courts in 2023.

A case this complex heard in mid-2024 may not produce a decision until much later that year, or even 2025. Whatever is decided will of course make a difference down under, but may also be well-regarded as possible precedent to consider in other jurisdictions.

Justice Perram also thinks the case will be a landmark, for the following reasons:

"Unlike most of the competition cases in this Court, a large quantity of data about actual consumer behaviour will be available in this litigation. For example, in the Apple case, Apple has been granted discovery from Epic about the behaviour of the players of Fortnite at the time the game was excluded from the iOS platform. The point of this discovery is to lay the groundwork for a contention that players of Fortnite, following its removal from the Android and iOS platforms, are likely simply to have switched to playing the game on another platform such as the PlayStation or Xbox.

"The data about what these users actually did exists and will be examined by Apple (there are alleged to be around 400 million users). This opens up a new vista in competition cases for the economic witnesses."

Google, meanwhile, has more Play Store matters to contest in other nations. India's competition regulator has reportedly decided the Play Store's payment requirements are anti-competitive, while South Korea is already reviewing whether Google did enough to comply with its law requiring third-party payment options, and plans to issue a ruling this week. ®

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