The work of Douglas Bernheim and Bates White played a key role in a recent high-profile antitrust matter.
Dr. 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 the hit game Fortnite, filed suit in 2020, alleging that Google monopolized the market for app distribution on Android smartphones, allowing it to charge supracompetitive commissions on app downloads and in-app billing systems for digital purchases. Epic claimed that Google maintained its monopoly power in app distribution on Android smartphones in part through anticompetitive agreements with smartphone manufacturers and large developers, some of which essentially paid other companies not to compete with the Google Play Store. Google claimed that its conduct was procompetitive and necessary for it to compete with Apple.
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 last 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 on December 11, the jury in the US District Court for the Northern District of California 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—Android app distribution and Android in-app billing services for digital goods and service transactions—and 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.” In an interview 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 court will address remedies in 2024.
Read the full jury verdict here.
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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.
