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Court questions funders’ access to Epic Games, Apple data

The Federal Court questioned whether litigation funders should receive data ahead of a 16-week trial brought by two class actions and a video game company against Apple and Google.

user iconNaomi Neilson 22 January 2024 Big Law
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Counsel appearing on behalf of Epic Games and class action applicants on Friday (19 January) suggested material could be handed over to litigation funders ahead of the trial’s March start date so it could be prepared to “make a proper assessment”.

But Justice Jonathan Beach took issue with this submission and questioned what the litigation funder could do with the data, including information from Apple and Google’s app stores, in circumstances where the trial is already set to commence in March.


“What’s the litigation funder going to do? The case is going to go ahead, and the funder is going to see how Epic goes. What else is it going to do?” Justice Beach questioned.

When it was suggested the funder could “make some decisions during the trial”, including making an offer”, Justice Beach said this would not be suitable unless mediation was on the table.

However, counsel hit back, telling the court the funders “should not be prevented from being able to consider whether or not to make an offer of compromise during the course of proceedings simply because there’s no mediation order on foot at present”.

The Federal Court will hear the two class actions in March, which alleges Apple and Google’s anti-competitive conduct within their app stores resulted in developers paying “materially higher” commissions.

It was ordered the class actions would run alongside lawsuits brought by Epic Games, which alleged Apple abused its monopoly power by blocking its game, Fortnite, from the app store when Epic introduced its own payment system to bypass Apple’s 30 per cent fee.

Epic Games has a similar action against Google, alleging the tech giant made it difficult for users to download onto their Android devices so they would be forced to suffer “supra-competitive” commissions of 30 per cent for app purchases by downloading from its app store.

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