Friday, October 9, 2020

Bonny Sweeney suing Google on indie app developer's behalf--what's the connection between her and Epic Games CEO Tim Sweeney?

At times it feels there's not a day on which nothing happens in those app store antitrust cases. Yesterday, Microsoft threw its weight behind the Coalition for App Fairness (CAF) and Epic Games' complaints, but in a political sense and without joining the CAF or formally intervening in those lawsuits--and, by the way, Microsoft is reluctant to apply the goose-gander principle to the Xbox, at least for the time being. Then, today and Monday are two particularly likely days for Judge Yvonne Gonzalez Rogers to enter an order on Epic Games' motion for a preliminary injunction against Apple. And here's just a quick procedural update on the Google cases pending in the same district, but before a different judge (Judge James Donato) and in a different city (San Francisco, not Oakland).

Yesterday Judge Donato held a joint case management videoconference in all three Google cases pending before him and which he decided to relate: Epic Games v. Google, Carr v. Google (consumer class action), Pure Sweat Basketball v. Google (app developer class action), and Peekya Services v. Google (another app developer class action). Peekya sells an Android app that costs approximately three bucks to download, depending on the country where the customer resides. This may or may not be a coincidence--should it be one, then it's a really funny one: the attorney who appeared on Peekya's behalf is Bonny E. Sweeney, a San Francisco-based partner of Hausfeld, a major law firm especially in competition matters. Hausfeld represented 40 law professors who supported the Federal Trade Commission against Qualcomm.

Mrs. Sweeney is co-chair of Hausfeld's U.S. antitrust practice. So let there be no doubt she was chosen for this case because of her qualifications. But isn't it odd that a lawyer going after Google over its Google Play store terms for app distribution and in-app purchases has the same family name as Epic Games CEO (and tireless anti-Apple tweeter) Tim Sweeney?

The Peekya case is the most recently filed one of those anti-Google app store antitrust cases. On September 30, Peekya issued a press release, in which it alleged that "Google has abused its dominant position atop the market." The same press release quotes Mrs. Sweeney as follows:

"Giant platform companies like Google have achieved unprecedented power. Hausfeld is proud to be paving the way for the enforcement of antitrust laws in these technological markets."

But Epic isn't mentioned in the press release. Maybe someone can shed some light on this. As a lawyer representing Apple against Samsung once said, "I'm old enough not to believe in coincidences anymore."

It's quite a challenge for the judge to juggle those four cases, which overlap in some ways but not in others.

Judge Donato has decided that Epic is more equal than the others. All others are required to file a consolidated amended complaint by October 21, but Epic can still maintain a separate complaint. So Mr. and Mrs. Sweeney won't have to consolidate their complaints. But even the "little guy" cases won't be fully consolidated at this time, the judge notes.

I would actually have singled out the Carr case because it raises consumer--not app developer--issues. Then, Judge Donato may have had reasons for this that I couldn't figure out.

All parties--even Epic--have to file a proposed case schedule by October 16.

One piece of bad news for Google: "Discovery will not be stayed on the basis that a motion to dismiss is pending." Google had asked for a stay, and Epic had argued that a stay would only be warranted in case of a strong showing of such a motion succceding. This has been a bad enough week for Google on the litigation front because its Supreme Court hearing (against Oracle) was described by one of its most loyal supporters among journalists (Ars Technica's Timothy B. Lee) as a "disaster" (as I mentioned in my fact check post today). Now it also appears Judge Donato is not--at least not yet--impressed with Google's attempts to get Epic's case thrown out at the earliest possible stage.

On October 29, the next videoconference will be held to discuss the further steps in those Google Play antitrust cases.

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