By Dr. Stephanie Khoury

Epic Games’ (“Epic”) suit against Google over the Google Play Store (GPS) and its payment system, Google Play Billing (GPB), continues to capture attention as one of the most closely watched recent U.S. antitrust battles. Now, however, the focus of the case has shifted from Epic’s jury win and Judge Donato’s injunction remedies to the parties’ settlement and proposed remedy changes. The parties’ proposal has engendered judicial skepticism, amici involvement, opinions from Court-appointed experts, and economic scrutiny that may derail the parties’ proposed deal.

In 2020, Epic, creator of the popular Fortnite game, filed a lawsuit against Google alleging that the company unlawfully maintained monopoly control over Android app distribution and in-app billing. Epic argued that Google engineered the Android ecosystem to steer app developers and users toward GPS, which required the use of GPB and allowed Google to collect a commission on transactions. The complaint further alleged that Google systematically undermined alternative app stores and payment options through contractual restrictions, technical design choices, and financial incentives. These practices, Epic alleged, preserved Google’s monopoly power, inflated commissions taken by Google on purchases through GPS/GPB, and reduced competition and innovation.[1] Notably, Epic did not seek monetary relief, stating: “Google’s conduct has caused and continues to cause Epic financial harm, but Epic is not bringing this case to recover these damages; Epic is not seeking any monetary relief, but rather only an order enjoining Google from continuing to impose its anti-competitive conduct on the Android ecosystem.”[2]

After a multi-week trial in late 2023, a federal jury unanimously found Google liable for violating federal and state antitrust laws by monopolizing Android app distribution and in-app payments and unlawfully tying GPS to GPB.[3] Following the verdict, U.S. District Judge James Donato entered a permanent injunction mandating changes to GPS aimed at fostering competition. This included, among other things, requiring that Google allow alternative app stores to be available for download on GPS, allow alternative app stores to access the GPS app catalogue, and allow app developers to use payment options other than GPB.[4] Google appealed, but, on July 31, 2025, the Ninth Circuit unanimously upheld both the jury verdict and the permanent injunction.[5] Google continued to appeal the decision as the deadline to implement elements of the permanent injunction approached, requesting a partial stay from the Supreme Court, which was declined in October 2025.[6]

The Proposed Settlement

The next month, in November 2025, Epic and Google announced a settlement and proposed several modifications to the injunction. Among the changes, the proposal would allow Google to deny alternative app stores access to the GPS app catalog and continue to exclude the alternative app stores from distribution through GPS, instead only allowing that distribution through “sideloading” (installation outside of GPS). Additionally, unlike the original injunction, which did not have requirements related to commission rates, Google agreed to cap the commission rate on GPS. Despite the proposed capped fees, Google and Epic’s terms would modify the injunction’s requirement to break the GPS/GPB tie, instead allowing developers to bypass GPB but still be charged (capped) services fees by Google on those transactions.[7]

Judicial and Third-Party Scrutiny

The proposed modifications, which generally limited the reach of the injunction, were met with skepticism and concern. Injunctions are not typically modified unless, among other potential reasons, there has been a significant change in circumstance. Judge Donato was not convinced that such a change was evident, noting: “The only changed circumstance that I can see right now is Epic and Google — two mortal enemies who pounded each other relentlessly in this courtroom for many years — are suddenly BFFs.”[8] Judge Donato further questioned if the proposal would “prov[e] an adequate remedy for Google’s wrongdoing.”[9]

This scrutiny has raised the possibility that the settlement could be rejected or require significant modifications. In a December 2025 order, Judge Donato scheduled an evidentiary hearing for January 2026 to discuss the proposed modifications.[10] The Court also announced that it was appointing an economist unaffiliated with either party, Prof Nancy L Rose,[11] to “assist the Court in evaluating whether the joint request to modify the injunction [. . .] is consistent with the jury verdict and the public interest in free and unfettered competition.”[12] Later, in a text order prior to the evidentiary hearing, Judge Donato noted that the signatories for the proposed settlement from each of the parties would be expected to testify.[13]

The proposed modifications to the injunction also drew several amicus briefs from outside parties that underscore the public-interest dimension of this case. The first of these briefs was filed by a group of “scholars of economics and law”, which included Paul Heidhues, Gene Kimmelman, Giorgio Monti, Fiona Scott Morton, Rupprecht Podszun, and Monika Schnitzer.[14] The amici expressed concern that the suggested modifications to the injunction would effectively make Google’s monopoly a Google-Epic shared duopoly, continuing to keep out other potential rivals and stifle competition.[15]

Next, amicus briefs from Microsoft and the FTC were also filed.[16] These, too, noted concerns with the economic effects of the proposed modifications to the injunction. Microsoft amici noted that the modifications would “effectively allow Google to restore [its] unlawful tie.”[17] The FTC amici raised concern that “private parties such as Google and Epic may barter away the public interest embedded in the court’s injunction for private gain.”[18] The commission “urge[d] the Court to consider the extent to which privately beneficial terms in the comprehensive settlement could have induced Epic to accept modifications that would not necessarily serve the public interest in competition.”[19]

Partnerships, Incentives, and Competition

At the January evidentiary hearing, Judge Donato indicated that it would be unlikely that he would grant the parties’ modifications.[20] One element that heightened concern was the disclosure of a commercial partnership between Epic and Google that surfaced during the proceedings.[21] Epic agreed to pay Google $800 million over six years for collaboration involving Epic’s Unreal Engine and joint marketing efforts. Epic CEO Tim Sweeny noted that this would give Epic a chance to expand its market reach, when asked by Judge Donato what Epic was “getting out of this” part of the deal.[22] Judge Donato questioned whether this agreement may be influencing Epic’s and Google’s incentives regarding the proposed modifications.[23]

Although this partnership does not, by itself, determine the welfare effects of relief measures, it amplifies judicial demand for clear economic justification for the proposed modifications. Indeed, at the January hearing, Judge Donato called on Prof. Douglas Bernheim,[24] who served as Epic’s economic expert during the course of the litigation, questioning if Prof. Bernheim agreed with the modified injunction.[25] While Prof. Bernheim stated that the modified injunction was “a better model for achieving sustainable competition,” Judge Donato was not convinced, noting his concern that the deal “put Epic and Epic alone, unlike any other developer or app provider, in a special relationship, vis-à-vis Google.”[26]

The skepticism of the Court and amicus submissions reinforce that this case is not just a private dispute between two parties, and thus, the proposed injunction is not only to benefit a given party. Instead, the case and resulting injunction are focused on benefiting competition, not just one competitor. Indeed, as discussed above, even in Epic’s complaint, it noted the importance of “enjoining Google from continuing to impose its anti-competitive conduct on the Android ecosystem,” rather than only making Epic financially whole. As such, the Court must consider these proposed modifications through an economic lens that encompasses the entirety of the market.

Economic Implications for Platform Competition

From an economic perspective, the key issue is whether the proposed modifications would meaningfully promote competition in the Android app ecosystem or instead preserve Google’s market power, albeit in a modified form. The original injunction sought to reduce entry barriers, weaken Google’s network-effect advantages, and enable rival app stores and payment systems to reach viable scale, allowing meaningful competition in the market. By contrast, the proposed modifications replace structural openness with capped pricing and limited access. Economic theory and antitrust literature suggest that regulatory price caps (or similar constraints) can often be a poor substitute for actual competitive contestability. Rather than fostering genuine competition, such regulation can lead to an unlawful monopoly converting into a regulated monopoly or narrow duopoly.[27] Restricting alternative app stores to sideloading and allowing Google to impose fees even when GPB is bypassed may threaten to recreate the bottlenecks and tying dynamics that the jury found unlawful.

The settlement has also raised concerns about asymmetric benefits. Remedies that primarily advantage a single large developer (here, Epic) may increase that developer’s private surplus without improving outcomes for the rest of the market (e.g., smaller developers, consumers). This may also continue to deter market entry by signaling that individualized deals with the dominant platform (here, Google) are required in order to successfully compete. Antitrust remedies must be judged by their economic effects on market wide incentives that seek to encourage entry, multi-homing, and/or competition on price, quality, and innovation. Viewed in this light, the skepticism of the Court and amici reflects a concern that the proposed modifications trade a market-wide competition-enhancing remedy for a privately efficient settlement, undermining the broader public-interest goals of antitrust enforcement.

This may serve as a test case for digital platform remedies in U.S. antitrust enforcement, where antitrust scrutiny and private litigation continue to focus. With settlement approval looking less likely, Epic v. Google continues to be a case to watch in 2026. Epic v. Google has expanded the role of economic analysis in antitrust litigation and could shape how courts assess competition and remedies in platform markets for years to come.

Note: Since this article was written and finalized, Google and Epic have filed amended proposed modifications to the Court’s injunction.  On March 4, 2026, parties submitted a revised set of modifications, claiming that it “hews much more closely to the Existing Injunction than did the parties’ previous proposal and is designed to address the concerns raised at the January 22, 2026 hearing.” (Dkt. 1179)  The status of the settlement, the injunction, and the newly proposed modifications remains ongoing.  These developments underscore the importance of the economic considerations underlying remedies in antitrust matters, as discussed in this article, and reflect the parties’ continued efforts to craft a resolution that addresses both the Court’s concerns in the market, rather than only between parties.

[1] In re: Google Play Store Antitrust Litigation, Dkt 1.
Following Epic’s filing, several other cases were filed by a class of GPS consumers, a class of app developers, a coalition of state attorneys general, and the Match Group (owner of several dating apps, such as Tinder). These separate filings were consolidated into In re: Google Play Store Antitrust Litigation.
[2] In re: Google Play Store Antitrust Litigation, Dkt 1. (Emphasis in original.)
[3] Dkt 866
[4] Dkt 1017
[5] https://www.law360.com/articles/2305370
[6] https://www.supremecourt.gov/orders/courtorders/100625zr_3fbh.pdf
[7] Dkt 760-1
[8] https://www.law360.com/articles/2408618
[9] https://www.law360.com/articles/2408618
[10] Dkt 1130
[11] Nancy L. Rose is the Charles P. Kindleberger Professor of Applied Economics, Massachusetts Institute of Technology Department of Economics.
[12] Dkt 1131
[13] Dkt 1146
[14] Dkt 1156-1
Paul Heidhues is Professor of Behavioral and Competition Economics, Düsseldorf Institute for Competition Economics (DICE), Heinrich-Heine University of Düsseldorf.
Gene Kimmelman is Senior Policy Fellow, Tobin Center for Economic Policy at Yale University and Research Fellow, Mossavar-Rahmani Center for Business & Government at the John F. Kennedy School of Government at Harvard University.
Giorgio Monti is Professor of Competition Law at Tilburg Law Chol, Tilburg Law and Economics Center, and Research Fellow, Centre on Regulation in Europe.
Fiona Scott Morton is the Theodore Nierenberg Professor of Economics at the Yale University School of Management, and former Deputy Assistant Attorney General for Economic Analyss (Chief Economist) at the Antitrust Division of the U.S. Department of Justice.
Rupprecht Podszun is Chair of Civil Law, German and European Competition Law at Heinrich Heine University of Düsseldorf, Director of the Institute of Antitrust.
Monika Schnitzer is Professor of Economics, Ludwig-Maximilians-University Munich.
[15] Dkt 1156-1
[16] Dkt 1159-1
Dkt 1163-2
[17] Dkt 1159-1
[18] Dkt 1163-2
[19] Dkt 1163-2
[20] https://www.law360.com/articles/2433248
[21] https://www.law360.com/articles/2433248
[22] https://www.law360.com/articles/2433248
[23] https://www.law360.com/articles/2433248
[24] Douglas Bernheim is the Edward Ames Edmonds Professor of Economics, Stanford University Department of Economics.
[25] https://www.law360.com/articles/2433248
[26] https://www.law360.com/articles/2433248
[27] Hovenkamp, Herbert (2021). “Antitrust and Platform Monopoly,” The Yale Law Journal 130(7):1952–2005.