Back in 2020 when “Fortnite” creator Epic Games separately sued Apple and Google alleging antitrust violations, we praised the video-game maker on its litigation communications. This week, Epic won in court against Google after having lost against Apple in 2021. This has Epic CEO Tim Sweeney trying to explain the different results.

As we noted in our original post, for years Epic and other app developers have been of frustrated by Apple and Google taking a 30 percent cut from sales in their app stores. Epic went ahead and made in-app purchases available in the “Fortnite” game itself. Since that violated both Apple’s and Google’s terms, the tech giants retaliated by booting out “Fortnite.”

Epic knew that would happen; that same day it sued both companies, seeking court orders forcing them to change their policies. The legal actions were accompanied by a litigation-communications campaign — obviously carefully planned — that included a social-media push and a video parodying Apple’s 1984 anti-IBM 1984 Macintosh commercial.

Bench Trial

Alas for Epic, after a bench (not jury) trial in 2021, it lost on nine of the 10 counts it brought against Apple (the one it won was minor). That verdict was upheld and is now being appealed to the U.S. Supreme Court.

But on Monday, in a case with obviously very similar issues, a jury (not judge) in San Francisco decided that Google’s Android app store, Google Play, had indeed engaged in anticompetitive behavior. The federal judge is set to hear arguments in January over what changes Google, which said it will appeal, must make.

“Today’s verdict is a win for all app developers and consumers around the world,” Epic said in a Dec. 11 statement. “It proves that Google’s app store practices are illegal and they abuse their monopoly to extract exorbitant fees, stifle competition and reduce innovation.”

Record Keeping

So why the different court results? It could have been the difference between a bench and jury trial, CEO Sweeney opined in a CNBC article. Also, there was more evidence that Google deleted or failed to keep records of negotiations with app developers, he said. (We advise against vanquishing records to avoid a crisis!)

Ironically, Apple may have had less documentation because its App Store is even more monopolistic and so doesn’t negotiate with app developers or handset makers. In another irony, Google allows for other app stores on Android while Apple doesn’t.

It’s always difficult to predict what will happen in a courtroom. From a comms perspective, litigants must understand that the results of a court case are not always determined by who’s right and who’s wrong — or even by facts (the facts here indicate Google had a stronger defense than Apple). When communicating publicly, parties need to understand and adapt their communications strategies to account for divergent results.

Photo Credit: Kate Krav-Rude/Shutterstock

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