Igor' Ivanko/Kommersant/Sipa USA via AP Images
A jury in Northern California found Google guilty of anti-competitive practices in the app market for Android phones, in a suit brought by Epic Games, the makers of Fortnite.
I have definitely had moments here at the Prospect where a news development totally changes a story I’m about to run the next day. Usually I’ll try to, you know, do something about it, either by including the news development or holding the story. Today, New York magazine decided to just post through it.
Former corporate defense lawyer Ankush Khardori regurgitated some gossip from anonymous sources who left the Federal Trade Commission (for corporate jobs? who knows!) and don’t like Lina Khan, criticizing both her management style and prosecutorial discretion. It’s clear that these ex-officials were pleased with their work in government amid relentless economic consolidation over the past 40 years; it’s unclear why anyone should care about what they think about antitrust.
But you would think that the editors running an article claiming that Khan is squandering a “once-in-a-generation movement to dramatically transform government antitrust policy” would have checked the headlines and noticed yesterday’s unanimous verdict in the Google Play Store case.
A jury in Northern California, after deliberating for just a few hours, found Google guilty of anti-competitive practices in the app market for Android phones. The suit was not brought by the FTC, but by Epic Games, the makers of Fortnite. Epic argued that Google forced app developers to use its Play Store for distribution, leveraging this power to charge fees on in-app purchases of up to 30 percent. When Epic tried to encourage users to pay them directly for their games instead, Google and Apple kicked them out of their respective app stores.
A separate case against Apple resulted in a mostly negative verdict for Epic, but it’s still on appeal. It says something that this jury (which maybe wasn’t composed of New York magazine readers) rather quickly agreed that Google was exercising monopoly power, when the judges in the Apple case tied themselves in knots denying it.
You can see why the jury might reach this conclusion. According to trial testimony, Google paid other companies to not develop competing app stores, and destroyed employee chat logs that could have included relevant information. While Khardori’s story insinuates that judges just aren’t ready for novel theories of antitrust, the judge in the Google Play case instructed the jury that they should assume that those deleted chats would be unfavorable to Google.
Epic, which pursued this suit after all other plaintiffs reached sweetheart settlements, did not ask for a cash reward, but an injunction to change how Google does business on Android phones, essentially to break up the app store monopoly. The trial is now slated to move to a remedies phase, where the judge could allow multiple app stores on Android, limits on the tolls Google takes from in-app purchases, and an end to Google’s tying of its app store and billing payment services.
Google is appealing the case, so the final story hasn’t been completed. But you would think that a writer claiming that overreach has ruined the movement for more aggressive antitrust enforcement wouldn’t publish that opinion on the same day as the first major antitrust loss for a Big Tech firm in the Web 2.0 era.
If this precedent plays a role in the multiple government cases against the company, including the search trial that recently concluded testimony, Khardori’s arguments and those of his sources will look even more foolish. As Matt Stoller explains, “Judges are cautious, and are generally afraid of being the first to make a precedent-setting decision. Now they won’t have to. In fact, judges and juries will now have to find a reason to rule for Google.”
It takes a lot to puncture the bubble of invincibility that Big Tech has created for itself, through lobbying dollars and academic corruption and, yes, infiltration into media narratives. But once it’s punctured, it’s hard to get that invincibility back.
At any rate, I hope New York does a follow-up. Their readers might just learn something.
