AAI Joins Law and Economics Professors in Urging Principled and Practical Limits on Section 2 Defenses (Epic v. Google)

AAI has joined 22 professors of law and economics in submitting an amicus brief in the Ninth Circuit in support of appellees in Google’s appeal of a trial verdict in Epic v. Google, No. 24-6256. In the brief, AAI and the professors urge the appeals court to reject Google’s entreaties to allow trial courts to weigh out-of-market benefits as a defense to monopolization claims under the Sherman Act.

In Google v. Epic, the plaintiff Epic, an app developer, defeated Google at trial in a Section 2 case alleging that Google monopolized the markets for app distribution and in-app billing in the Android ecosystem, harming developers. On appeal, Google argues that the trial court erred by failing to instruct the jury to weigh the harms to developers against benefits to users.

AAI and the 22 professors explain that antitrust law has never allowed defendants to justify a prima facie violation of Section 2 in one market by pointing to benefits in a different market. By prohibiting monopolization of “any part” of U.S. trade or comments, Congress prevented courts and private parties from making the political choice to sacrifice competition in one portion of the economy for the benefit of competition in another portion.

The brief argues that, although a few courts have strayed from the statutory text and the controlling precedent, the decisional law is clear. Defendants may introduce evidence of out-of-market benefits to help establish in-markets benefits that would offset the prima facie harm established in the affected market, but they may not rely on the out-of-market benefits themselves as a justification or ask courts to weigh the out-of-market benefits against the in-market harms.

The brief also argues that the well-established law is rooted in sound policy. Permitting monopolization of a market and injury to victims based on benefits to other markets and other market participants would raise intractable administrability problems, introducing enormous complexities and cascading problems into what is already very complex litigation. It also presents courts with a fundamentally political question they are ill-equipped to answer.

The brief was written by AAI Advisory Board Member John Newman, who is Professor of Law at the University of Miami Law School, with input from AAI President Randy Stutz. David W. Kesselman of Kesselman Brantly Stockinger LLP served as counsel to amici.

Read the full brief here: AAI and Professors of Law & Economics Amicus Brief in Epic v. Google