An all-out war over Apple's App Store (and, in parallel, Google's Play Store) commissions is raging in the Northern District of California, where Fortnite maker Epic Games brought private antitrust lawsuits against both platform makers yesterday. Under the #FreeFortnite hashtag, a social media campaign appears to have huge momentum on Twitter right now.
In a matter of weeks I'm going to announce my new game, and it's going to have very broad appeal, much more so than the trivia game I launched in 2018. I bet it's going to be one of the most talked-about games of 2020. In its first release, it won't come with in-app purchasing, but we'll add that in our second release. Just like any other app developer, I'd like to keep more than 70% of the App Store and Play Store purchases my product will generate, but I try to distinguish that natural de$ire on my part from the manifest antitrust violation some folks allege. For now I'm still at the opinion-forming stage.
Based on what is known about Spotify's positions (as some of the correspondence between Apple and Spotify was made public), its EU antitrust complaint against Apple is presumably just a self-serving attempt by a Swedish entity to capitalize on EU competition chief Vestager's protectionist tendencies. At least I can't see how my company is going to benefit from a Lex Spotify. Then there's the Pepper v. Apple class action, trying to make a case of consumer harm, but consumers won't truly benefit--it's a money-making scheme for class action lawyers. The sixth paragraph of Epic's N.D. Cal. complaint stresses what sets this case apart from (without mentioning them) the Pepper litigation and the Spotify complaint:
"Epic is not seeking monetary compensation from this Court for the injuries it has suffered. Nor is Epic seeking favorable treatment for itself, a single company. Instead, Epic is seeking injunctive relief to allow fair competition in these two key markets that directly affect hundreds of millions of consumers and tens of thousands, if not more, of third-party app developers." (emphasis added)
If that is so, then we're likely going to see quite some amicus brief activity by major app makers further down the road.
What I furthermore predict is that some organizations claiming to represent app developers, such as ACT, are going to run into a terrible conflict of interests because they won't be able to criticize their funding sources.
While it's too early for me to comment on Epic's case in detail, I just wanted to share an observation on who represents the Fortnite maker. The first lawyer whose names appears in the complaint is Faegre Drinker's Paul Riehle, a Bay Area antitrust attorney. But then there's a list of Cravath, Swaine & Moore lawyers, led by former FTC commissioner and U.S. Antitrust Assistant Attorney General Christine Varney. Two of the Cravath partners on her team represented Qualcomm in last year's FTC trial in San Jose: Gary Bornstein, who cross-examined one of the FTC's experts into oblivion, and Yonatan Even. A Ninth Circuit panel just ruled in Qualcomm's favor against the FTC. Messrs. Bornstein and Even were also listed among Qualcomm's counsel in the Apple antitrust litigation in San Diego, but that case settled during opening arguments, so Cravath chairman Evan Chesler was the only attorney to argue on Qualcomm's behalf before the trial was already over.
Epic Games relies on the same team of lawyers in a parallel case against Google in the same district, which may very well get consolidated into the Apple litigation.
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