Epic Games, Inc. v. Google LLC

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: Google Play Store Antitrust Litigation No. 24-6256 _______________________________ D.C. Nos. 3:21-md-02981-JD EPIC GAMES, INC., a Maryland 3:20-cv-05671-JD Corporation, Northern District of California, San Francisco Plaintiff - Appellee, ORDER v.

GOOGLE LLC; GOOGLE IRELAND, LTD.; GOOGLE COMMERCE, LTD.; GOOGLE ASIA PACIFIC PTE, LTD.; GOOGLE PAYMENT CORP.,

Defendants - Appellants.

EPIC GAMES, INC., No. 24-6274 D.C. No. Plaintiff - Appellee, 3:20-cv-05671-JD Northern District of California, v. San Francisco GOOGLE LLC; GOOGLE IRELAND, LTD.; GOOGLE COMMERCE, LTD.; GOOGLE ASIA PACIFIC PTE, LTD.; GOOGLE PAYMENT CORP.,

Defendants - Appellants. EPIC GAMES, INC., a Maryland No. 25-303 Corporation, D.C. No. 3:20-cv-05671-JD Plaintiff - Appellee, Northern District of California, San Francisco v.

GOOGLE LLC; GOOGLE IRELAND, LTD.; GOOGLE COMMERCE, LTD.; GOOGLE ASIA PACIFIC PTE, LTD.; GOOGLE PAYMENT CORP.,

Before: M. Margaret McKeown, Danielle J. Forrest, and Gabriel P. Sanchez, Circuit Judges.

Google LLC’s Motion for a Stay of Permanent Injunction Pending Google’s

Forthcoming Petitions for Rehearing and, if Necessary, Certiorari is denied. The

request for a stay pending a petition for rehearing is moot because the court issued

an administrative stay pending decision on the petition for rehearing and the court

denied that petition on September 12, 2025.

The Permanent Injunction (“Injunction”) was issued on October 7, 2024.

This is not a situation in which Google must comply with key provisions of the

Injunction immediately upon issuance of the mandate. Rather, the district court

recognized that a lag time between the judgment and imposition of the key

provisions of the Injunction would be appropriate. To facilitate the spirit of that

2 24-6274 ruling, on August 1, 2025, we stayed the Injunction pending appeal, despite the

district court’s denial of Google’s motion for a stay.

For the key provisions that Google attacks—paragraphs 11 and 12 of the

Injunction related to “restor[ing] competition in the Android app-distribution

market with the catalog-access and app-store-distribution remedies,” Op. at 40—

Google has eight months from the issuance of the mandate to comply with the

Injunction. However, by this Order we modify the Injunction to extend the time

for compliance with paragraphs 11 and 12 to ten months following issuance of the

mandate. Also, per Google’s request in its initial Emergency Motion for Partial

Stay of the Permanent Injunction, we extend the short-term compliance deadlines,

contained in paragraphs 4-7 and 9-10 of the Injunction, until thirty days after the

issuance of the mandate. (The thirty-day compliance deadline contained in

paragraph 13 remains intact.)

Under the terms of the Injunction, either party “may request a modification

of the injunction for good cause.” This provision continues to apply except with

respect to paragraphs 11 and 12; Epic may not request a compliance deadline

shorter than the ten-month deadline imposed by this Order. Google’s motion does

not encompass paragraph 8 of the Injunction; Google has represented that it

already made the contractual changes ordered with respect to carriers and phone

manufacturers. Imposition of the verdict has already been suspended more than

3 24-6274 twenty months since the December 2023 jury verdict in favor of Epic and almost a

year since the Permanent Injunction. We also note that Google has represented

that it will file any petition for certiorari within forty-five days of a decision on its

stay motion.

To obtain a stay of the mandate pending certiorari under Federal Rule of

Appellate Procedure 41(d), Google is required to show 1) “a reasonable probability

that four members of the Court would consider the underlying issue sufficiently

meritorious for the grant of certiorari[;]” 2) “a significant possibility of reversal of

the lower court’s decision;” and 3) “a likelihood that irreparable harm will result if

that decision is not stayed.” White v. Florida, 458 U.S. 1301, 1302 (1982). We

recognize that Google need not demonstrate “exceptional circumstances . . . to

justify a stay,” Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir. 1989),

because it is “often the case” that our court issues a stay pending certiorari, United

States v. Pete, 525 F. 3d 844, 850 (9th Cir. 2008).

Although we stayed the Injunction pending appeal, in our comprehensive

sixty-seven-page opinion, our unanimous panel upheld the jury’s finding of

antitrust liability and the district court’s Injunction. We emphasize that this Order

is issued after a jury trial and multitudinous district court proceedings. Unlike

many stay orders, this Order does not relate to a stay pending issuance of a

preliminary injunction but rather relates to a stay request following a jury trial, a

4 24-6274 permanent injunction, and a final judgment. Following a fifteen-day jury trial with

forty-five witnesses in which the jury found Google violated federal and state

antitrust laws, the district court undertook additional testimony and hearings and

issued detailed findings with respect to the Injunction.

Google’s primary contention on appeal focuses on factual disagreements

with the district court, an effort to shoehorn the results of the Epic v. Apple

litigation into this case, and a misapprehension of essential antitrust principles. As

for security concerns, we held that the Injunction “explicitly address these risks”

through adoption of reasonable measures “to ensure that the platforms or stores,

and the apps they offer, are safe from a computer systems and security standpoint.”

Op at 64–65. In addition, the Injunction provides for a Technical Committee to

assist in resolving technical disputes, including security concerns.

In view of the rationale and details laid out in our opinion, we conclude that

Google has not met the requirements under Federal Rule of Appellate Procedure

41(d) regarding a meritorious petition for certiorari or the significant possibility of

reversal. In addition, Google’s claim for irreparable harm is unfounded in light of

trial testimony. Finally, we are unpersuaded by Google’s claim that market

confusion, monetary expenditures, and national security support a claim of

irreparable harm.

5 24-6274 Motion for stay of mandate denied; motion for stay of mandate pending

filing of petition for rehearing denied as moot; and Permanent Injunction

issued October 7, 2024, modified in accordance with this Order.

6 24-6274