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Fortnite’s legal battle with Google back in court, 2022 trial looking likely

By Chris Cooke | Published on Friday 30 October 2020

With the battle between ‘Fortnite’ owner Epic Games and Apple grabbing lots of headlines, it’s easy to forget that the game maker is also suing Google over its app store rules. There was an update in that case this week, with the judge overseeing the proceedings ruling that Google’s proposed two-year timeline for the legal battle was not “brisk” enough.

Epic – like Spotify – doesn’t like being forced to use Apple and Google’s transaction platforms when taking payments through its iOS or Android apps respectively. Because doing so involves paying the two tech giants a 15-30% commission. Epic, Spotify and others argue that those rules are anti-competitive. Apple’s rules are seen as being more draconian, though app makers have plenty of issues with Google too.

Both Apple and Google kicked ‘Fortnite’ out of their respective app stores in August after Epic broke the rules and added its own payment options. And while there is a workaround on Android devices that makes the Google ban less significant, legal action was nevertheless launched over both tech firm’s app store policies.

The two big Epic cases are not the only lawsuits in the US seeking to test the competition law arguments around those app store rules. Although, some of the other cases involve multiple app makers or app users, with some seeking class action status, which complicates things a little. Nevertheless, in a court hearing this week, a number of those other plaintiffs joined Epic in confirming their grievances against Google.

However, the Epic cases, without the complication of seeking class action status, could progress more quickly than the others. Though Google itself was keen to stress this week that its case was still pretty complex. And more complex than Epic’s legal battle with Apple, because its Android operating system is “an open ecosystem”, meaning that more third parties will be affected and involved.

According to Law360, because of those complexities, Google has proposed a timeline for its Epic dispute that would see the case properly get to court in October 2022. But judge James Donato said a two year wait was not acceptable, and that both sides in the dispute should seek to “move briskly”. Epic is pushing for a February 2022 trial, and Donato seemed to look more favourably on that proposal.

While he said he was happy for Epic and Google to initially try to agree on a schedule for the dispute themselves, he told both sides “let’s get moving”, adding that too slow a timeline risks creating “an impediment rather than a stimulant to progress”.