In a joint case management hearing before Federal Court Justice Nye Perram Thursday, timetabling for hearing in the two cases took on outsize significance, as the judge tossed up various options, including separate consecutive hearings, contemporaneous separate hearings, or a joint trial.

“If I determine to hear the Apple case [in mid 2023], knowing the Google case can’t be heard at the same time, in a sense I’ve crossed that bridge today, because I’ve determined that the Apple case will be held apart,” he said.

“Disengaging the issues in any tidy way is going to be enormously difficult…they’re clearly different cases but they’re also clearly not different cases.”

While the judge said he was “not driven by a desire for a joint trial,” he noted that consecutive trials might prejudice Google as the second-heard party. He weighed the option of reserving judgment in the Apple case until after the Google trial.

Apple’s case was originally set down for hearing in November this year, but the case will now be heard mid to late next year or 2024, depending on whether the court decides to wait for Epic’s parallel case against Google to progress. The Google case is not as well progressed as the case against Apple, with pleadings in the Google spat yet to be finalised.

Epic’s lawsuit against Apple, filed in November 2020, accuses the tech giant of abusing its monopoly power when it blocked Fortnite from the App Store after Epic Games introduced its own payment system to avoid a 30 per cent fee for app purchases.

Epic’s case against Google is similar, with the game maker alleging Google made it “egregiously difficult” for users to download apps directly onto Android devices, effectively forcing consumers to buy them through the Google Play Store, which charges a “supra competitive” commission of 30 per cent on all app purchases.

The suits follow twin lawsuits against the two companies filed in the US District Court for the Northern District of California in August 2020.

Google and Apple’s arguments about commonality ‘need to be taken with a grain of salt’, court hears

Barrister for Epic Neil Young QC argued in favour of a prompt start to the Apple trial, which he said would be differentiated from the Google case on its facts, even if judgment were reserved until after Google’s case was heard.

“Those timing matters are matters we regard as very important, because we wish to proceed with the Apple trial as soon as may be, and we don’t want the prejudice of a further [delay],” Young said.

“It’s still going to make a much quicker outcome…rather than deferring everything until 2024.

“The supposed area of commonality is…fact-specific to the evidence and the anti-competitive conduct in each case.”

But Young was met with opposition by counsel for both Google and Apple.

Apple’s barrister Stephen Free SC pressed the “significant” overlap in the two cases, saying that although Apple was likely to be ready for trial mid-2023, neither matter should start before both were ready, in order to keep open the possibility of a joint trial or similar arrangement.

Barrister for Google Cameron Moore SC argued the Apple Store and Google Play Store were “mirror images of each other”. He said he “couldn’t countenance” the idea of Justice Perram hearing Epic’s case against Apple in his absence.

“The broad structure of [markets] and industry, and how the actors behaved and what their relevant competitive alternatives are…will all be common.

“And not only markets and the definition of markets and the constraints which each of Android and IOS place on each other, but also matters relative to competition analysis, including the options Fortnite has to place its product on the marketplace through gaming consoles and the like.

“The close analogies between the two proceedings become readily apparent.”

Moore’s arguments echoed Apple’s defence filed in November last year, which argued that pulling Fortnite from its App Store was not a misuse of market power, because most of its revenue came from other platforms.

“The vast majority of Epic Games’ Fortnite global revenue (93%) is generated on non-iOS platforms. Among users who made a purchase between March 2018 and July 2020, only 13% made a purchase on an iOS device — meaning that Epic Games was able to transact with 87% of paying Fortnite users without paying any commissions to Apple Inc,” Apple said.

The App Store was a “two-sided transaction platform”, which had many competitors and “substitutes”, including gaming transaction platforms on PC and consoles, Apple said. The tech company said that Epic had agreed to similar terms and conditions on these other platforms “without objection”.

“Epic accepts, without objection, substantially the same terms precluding a store within a store and in-app purchase alternatives and commission level on Sony PlayStation and Microsoft Xbox consoles and Nintendo Switch devices, all of which are much more significant sources of revenue to Epic than iOS device users.”

Justice Perram reserved his decision on timetables for trial.

Epic Games is represented by Neil Young QC, instructed by Clifford Chance. Apple is represented by Stephen Free SC, instructed by Clayton Utz.  Google is represented by Cameron Moore SC, instructed by Corrs Chambers Westgarth.

The cases are Epic Games Inc & Anor v Apple Inc & Anor and Epic Games Inc & Anor v Google LLC & Ors.

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