Sofia Arguello
Winston & Strawn, New York
sarguello@winston.com

Neha Vyas
Winston & Strawn, New York
nvyas@winston.com

Introduction

The Ninth Circuit’s 31 July 2025 Epic v Google decision may be a watershed moment for the technology industry.^[1] US courts have historically viewed their remedial mandate as limited to addressing the specific anticompetitive conduct of both alleged and found. As a result, courts have tended to adopt narrow remedies that fail to compel structural change or address a tech giant’s far-reaching power. Epic v Google, which involved Google’s anticompetitive acts in securing and maintaining monopoly power over the Android app store ecosystem, was a marked change to that trend.

The Ninth Circuit indicated that it is willing to greenlight forward-looking remedies that are designed to ameliorate not only the specific conduct at issue, but also the broader network effects that allowed a company to acquire and entrench its power. This significant change may signal a new age in competition enforcement for digital platforms in the US that more closely resembles enforcement in the EU.

Background

The Epic v Google case traces back to 2020, when Epic Games Inc (Epic) – the prominent video game developer and publisher of Fortnite – sued both Apple and Google after each company removed Fortnite from their app stores following Epic’s attempt to bypass the tech giants’ requirements that app purchases through their stores use their in-app payment systems (ie, Apple’s in-app payment and Google Play Billing, respectively) and pay the accompanying 30 per cent commissions.^[2] Fundamentally, each case challenged Apple and Google’s imposition of rules and terms which bared developers from offering third-party app stores and using third-party payment systems in the iOS and Android app ecosystems.^[3]

The Epic v Apple case proceeded to a bench trial in the Northern District of California, where Judge Yvonne Gonzalez Rogers found that Apple did not violate the federal antitrust laws but did violate California’s Unfair Competition laws, by imposing anti-steering restrictions that prohibited developers from informing users of alternative payment options.^[4] In September 2021, the Apple Court issued a permanent injunction prohibiting Apple from enforcing its anti-steering restrictions, and the Ninth Circuit largely affirmed that ruling in April 2023.^[5] While litigation is still ongoing regarding Apple’s compliance with the injunction, that injunction remains intact.^[6]

Epic v Google, by contrast, proceeded to a jury trial before Judge James Donato in the Northern District of California.^[7] In December 2023, the jury – tasked with determining if Google was liable under the antitrust laws, but not the appropriate remedy – unanimously ruled in Epic’s favour.^[8] The jury found that Google violated the antitrust laws by (1) restricting app distribution via the Google Play Store; and (2) tying app store distribution through the Google Play Store to the use of Google Play Billing.^[9] Judge Donato issued a permanent injunction in October 2024, which the Ninth Circuit affirmed on 31 July 2025.^[10]

The landmark remedies affirmed by the Ninth Circuit in Epic v Google

The permanent injunction affirmed by the Ninth Circuit in Epic v Google was multifaceted and sweeping in scope, designed not only to address the conduct the jury found anticompetitive, but also to restore competition and redress the network effects and barriers to entry that systematically entrenched Google’s unlawful power.

Specifically, the injunction:

• bars anticompetitive deals: Google is not permitted to provide revenue-sharing or other benefits to distributors, developers, original equipment manufacturers or carriers in exchange for their preferencing of the Google Play Store or Google Play Billing or excluding rival app stores;
• requires Google to give third-party app stores access to its app catalogue: Google is required to give third-party Android app stores access to its catalogue of apps, so that rival stores can offer users a comparable library of software products;
• requires Google to allow third-party app stores: Google must allow third-party app stores to be distributed via the Google Play Store; and
• establishes a technical committee: a three-person Technical Committee – comprised of one member chosen by Epic and Google each, and a third chosen by the parties’ appointees – will oversee the implementation of the injunction and resolve technical disputes, subject to the district court’s final authority.

In affirming the injunction, the Ninth Circuit underscored that its ‘review must account for the particular characteristics of digital markets which can allow monopolists that achieved or maintained dominance through exclusionary conduct to perpetuate entry barriers and maintain monopoly power long after that conduct has stopped’, and stressed that these ‘realities’ afforded the district court ‘large discretion’ in crafting equitable relief.^[11]

The significance of the Epic v Google remedies

Traditionally, the US has employed an ex post approach to antitrust enforcement, where courts react to specific anticompetitive conduct and, if warranted, seek to implement tailored remedies attuned to the specific conduct alleged and proven. While that approach has had the benefit of establishing a more fulsome factual record and enabling a more particularised inquiry into the conduct at issue, its narrow focus has been critiqued as inadequately addressing problems that are unique to Big Tech, including network effects that compound the abusive effect of a monopolist’s conduct.

In recent years, the EU has taken a different approach. Its ex ante regime is most clearly illustrated by the European Commission’s (EC) Digital Markets Act (DMA). The DMA – which nominally went into effect in November 2022 and had an initial compliance deadline of March 2024 – includes a clear set of standards for ‘gatekeeper’ companies, as designated by the EC.^[12]  This designation is intended to identify platforms that ‘provide an important gateway between businesses and consumers in relation to core platform services’.^[13] Google and Apple have been designated gatekeepers since September 2023.^[14]

The DMA’s mandates are sweeping, and include requiring gatekeeper companies to allow users to install third-party apps or app stores and prohibiting gatekeeper companies from conditioning core-platform access on the use of the gatekeeper’s other services.^[15] If gatekeepers fail to comply with the DMA, they can face fines of up to ten per cent of their global revenues – a penalty that can rise to 20 per cent for repeat offenders.^[16] For ‘systematic infringements’, the EC reserves the right to impose ‘additional remedies’, including – as a last resort – structural or behavioural remedies (eg, forced divestiture).^[17] Tech giants, including Google, responded to the DMA by implementing changes to their policies that were largely specific to their services in the EU.^[18] The broad remedies affirmed by the Ninth Circuit in Epic v Google may signal that the US is taking a page out of the EC’s ex ante playbook.

What will happen next?

Whether the ex ante approach reflected in the Epic v Google decision is the genesis of a new trend in US antitrust enforcement or a one-off departure from the US’ traditional ex post method remains to be seen. Indeed, after ruling that ‘Google is a monopolist and has acted to maintain its monopoly’ through its internet search operations,^[19] Judge Amit Mehta of the DC District Court issued an injunction that was widely viewed as an ex post slap on the wrist.^[20] While the injunction requires data transparency and bars Google from preventing its partners from distributing rival search engines, it fell well short of the harshest remedies on the table, including divestiture.^[21]

And this may not be the last chapter in the Epic v Google saga. While the Ninth Circuit has stood its ground (on 12 September 2025, it denied Google’s request for reconsideration and lifted a temporary stay of the injunction), Google has filed an application for a partial stay of the injunction before the Supreme Court, pending the filing of its certiorari petition which will ask the US’ highest court to review the decision in full.^[22] In sum, while much remains to be seen about the longstanding impact of Epic v Google, it is a clear departure from the US’ traditional approach to antitrust enforcement in the technology sector.