FTC Outlines Remedy Concerns in Amicus Brief After Jury Finds Google Illegally Monopolized App Store

The Federal Trade Commission filed an amicus brief in a case brought by online video game maker Epic Games Inc. against Google LLC’s app store, which outlines how the court should consider potential remedies when determining effective relief to restore competition after Google was found liable for illegal monopolization.

The FTC filed its amicus brief in the U.S. District Court for the Northern District of California in an ongoing antitrust case where a jury found Google liable for multiple antitrust violations related to its Google App Store, including finding that Google monopolized the Android App Distribution and Android In-App Payment Solutions markets for digital goods and services transactions. Google’s App Store serves as an essential platform used by developers, which includes Epic, to market their software. Google’s App Store is also critical for users that seek to purchase applications, such as Epic’s online game Fortnite.

In its amicus brief, the FTC encourages the court to use its broad power to order a remedy that stops the illegal conduct, prevents its recurrence, and restores competition. Injunctive relief should also restore lost competition in a forward-looking way and should ensure a monopolist is not continuing to reap the advantages and benefits obtained through the antitrust violation, the FTC’s brief stated. Looking forward in cases like Epic v. Google often requires the consideration of network effects, data feedback loops, and other key features of digital markets. This could help ensure that potential competitors can overcome the advantages established digital platforms often gain, which include network effects and data incumbency. These advantages allow established digital platforms to lock-in users, advertisers, and other stakeholders, which create barriers to entry for future competition.

In the Epic case, Google has raised several concerns about the administrability of potential injunctions that impose duties to deal with competitors and the implications of any requirement that Google provide access to its Application Programming Interfaces to non-customers for free. Despite these concerns, courts still have wide latitude to impose these sorts of requirements on monopolists when crafting remedies to restore competition, the FTC stated in its brief.

Google also has expressed concern that the cost of complying with Epic’s proposed remedy may be overly burdensome. Complaints about the burdens of compliance are no excuse, the FTC stated in its brief. Google’s monopolistic behavior has significantly harmed millions of users in the United States. Allowing monopolists to reap the rewards of illegal monopolization while avoiding the costs of restoring the competition that they unlawfully eliminated would undermine deterrence, the FTC stated in its brief.

The Commission vote approving the filing of the amicus brief was 3-0-2, with Commissioners Melissa Holyoak and Andrew N. Ferguson recused. Commissioner Holyoak is recused due to her work on behalf of Utah in Utah v Google. Commissioner Ferguson recused himself in light of Virginia’s participation in Epic v. Google when he was Solicitor General.