Bates White client Epic Games wins unanimous verdict against defendant Google
Douglas Bernheim was retained on behalf of Epic Games in its antitrust litigation against Google related to Google’s app store practices. Epic, the maker of Fortnite, alleged that Google monopolized the market for app distribution on Android smartphones, allowing it to charge supracompetitive commissions on app downloads and in-app digital purchases.
Dr. Bernheim submitted two expert reports analyzing the antitrust allegations. In those reports, he assessed market definition, market power, competitive effects, and consumer harm from Google’s conduct. He testified twice in the final week of the four-week jury trial, and his rebuttal testimony ended the proceedings until closing arguments one week later.
Within hours of closing arguments, the jury returned a unanimous verdict for Epic on all counts, all claims, and all forms of conduct. It agreed that Epic proved the existence of two relevant antitrust markets, that Google “willfully acquired or maintained monopoly power by engaging in anticompetitive conduct” in the identified markets, and that Epic “was injured as a result of Google’s violation of the antitrust laws.” Interviewed after the verdict, one juror praised Dr. Bernheim’s testimony for helping to make sense of the case, noting that “he was a pretty powerful tool for the Epic team.”[1]
The full verdict is available here. The court subsequently rejected Google’s attempt to overturn the jury’s ruling.
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[1] Xu Yuan, “Google’s Failure to Preserve Internal Chats ‘Concerning,’ Juror from Epic Games Trial in US Says,” MLex, December 12, 2023.