We’ve nearly spent a fortnight in Fortnite court.
Here’s how we ended the day: Judge Donato told Epic that he doesn’t believe any of Google’s conduct reaches the standard of being “per se anticompetitive.”
“I’m perfectly fine with rule of reason but I’ve having trouble saying they’re so egregious on their face,” he said.
Epic lead attorney Bornstein says he’s only seeking per se for the Project Hug agreements with Riot, Activision, and Supercell, and the judge says he’s willing to hear more but isn’t inclined to take this away from the jury. He thinks we’ll be deciding everything under the rule of reason standard instead, partly because of a Circuit Court decision (presumably referring to where Epic v. Apple went on appeal.)
Judge Donato also wanted to know where Epic thought we’d land on the relevant product market, and Bornstein said he’s handling it differently than in Apple because of Google’s very different structure of business relationships. The judge wound up saying, “I don’t think aftermarket concepts are in play here.”
I am not a lawyer or even a legal reporter, so I’m not going to translate any of this for you on the spot. It’s not worth getting it wrong.