San Francisco, CA — The American Economic Liberties Project this week filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit supporting Epic Games, in its civil antitrust case against Google. The brief emphasizes the need for the court to uphold robust remedies that counter Google’s abuse of its monopoly power in the Android app distribution market and highlights Google’s egregious evidence destruction, which obstructed the judicial process. This appeal follows a unanimous jury verdict finding Google violated antitrust laws through practices that suppressed competition and harmed app developers and consumers.

“Google has displayed a shocking disregard for the rule of law by systematically destroying relevant evidence to shield its monopolistic practices from scrutiny,” said Laurel Kilgour, Research Manger for the American Economic Liberties Project. “Incredibly, Google is still trying to benefit from what Judge Donato called a ‘rampant and systemic culture of evidence suppression’ by asking the Ninth Circuit to overturn the district court’s remedies for insufficient factual findings. In fact, the district court rightly found that Google’s anticompetitive tactics illegally enhanced its dominance by preventing consumers from easily switching to rival app stores like Epic and Amazon. The Ninth Circuit should affirm the district court’s remedies, which are moderate with their duration of only three years, well-supported by the record, and essential to fostering competition and fairness in the app marketplace.”

The amicus brief argues that Google’s extensive destruction of internal communications through its “history-off” chat practices and its abuse of attorney-client privilege significantly hampered the ability of plaintiffs and courts to fully assess its anticompetitive behavior. Google’s discovery misconduct, including its destruction of internal chats and misuse of privilege, prevented the development of a complete evidentiary record. As the amicus brief explains, this misconduct was perpetuated by top executives including CEO Sundar Pichai and former General Counsel Kent Walker (who now holds a public affairs role where he serves as Google’s voice on AI ethics and policy matters). Testimony from a Google executive revealed that the destroyed evidence likely would have provided exactly what Google claims is missing—a more complete account of how Google’s anticompetitive tactics to prevent consumers from easily switching to Google’s app store rivals such as Epic and Amazon illegally magnified and enhanced lucrative network effects. District court Judge James Donato described Google’s actions as a “frontal assault on the fair administration of justice” and issued a permissive inference instruction that allowed the jury to assume that any destroyed evidence would have been unfavorable to Google. The jury ultimately ruled against Google on all counts.

The brief also supports the district court’s remedies, which aim to jumpstart competition in the app store market, including by temporarily requiring Google to grant access to the Play Store’s catalog and permit rival app stores to distribute apps though the Play Store without unnecessary friction. Failing to affirm these remedies would set a dangerous precedent, encouraging dominant firms to evade accountability–and competition on the merits–through spoliation and other litigation misconduct. Moreover, the Supreme Court has recognized that “all doubts” with respect to the appropriateness of an antitrust remedy are to be resolved in favor of the plaintiff, not the wrongdoer. Ford Motor Co. v. United States, 405 U.S. 562, 575 (1972).

The Ninth Circuit’s approach to the Epic case may impact any appeals in other cases impacted by Google’s discovery misconduct. There are multiple other pending antitrust cases against Google, brought by government plaintiffs on behalf of the American public, that have been plagued by the same evidence destruction and abuse of attorney-client privilege. Other federal judges have already condemned Google’s “shocking” misconduct, and will likely be confronted with similar questions about the impact of that misconduct on appeal.

Read the full amicus brief here. 

Read Economic Liberties’ letter urging the State Bar of California to investigate Google executive Kent Walker’s likely violation of attorney ethics rules by destroying evidence here.

Learn more about Economic Liberties here. 

###

The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.