UK Tribunal allows Epic’s claim against Alphabet Inc. & Google LLC

The UK Competition Appeal Tribunal has ruled that Epic Games can sue Alphabet Inc. and Google LLC in the UK for removing its Fortnite game from the Play Store, although it cannot bring a claim in the UK against Apple for similar behaviour.

Although Mr. Justice Peter Roth declined to grant permission for Epic's claim to be served on Apple Inc., he noted that Epic had a "well arguable case" that if Epic had been allowed to operate its proprietary games store on Apple devices, more game developers would have sought to distribute their games via Epic's store and noted that if Epic's direct payment system had been used, "the prices to purchasers of in-app content would have been cheaper."   

Competition litigation and tech specialist, Partner Lesley Hannah, shared her views on the judgment with Emily Craig at Global Competition Review, stating:

"Applications to the English courts for permission to serve out of jurisdiction are "set to increase exponentially post-Brexit.'"

She continued: Roth's judgment "provides a helpful indication of the approach likely to be adopted by the CAT" for interpreting jurisdictional gateways. Apple and Google have been widely criticised for their conduct in the app store market; Apple for reserving its ecosystem to itself, Google for preferencing its own services and making it difficult for others to compete.

Roth's confirmation that a loss of market share and reduction in sales, as well as damage to Epic’s reputation, are sufficient "damage” to find jurisdiction under the tort gateway, Hannah noted. This is a "welcome confirmation that loss caused by anticompetitive conduct will not be narrowly construed by the English courts."

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