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Delay splits Apple, Google expert evidence apart in Epic Games class action

Part of Epic Games class action proceedings against Apple and Google over anti-competition allegations has been split in two.

user iconNaomi Neilson 19 February 2024 Big Law
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Appearing before the Federal Court on Friday (16 February), counsel for Epic Games, Neil Young KC, requested an economic expert conclave be divided into two parts because Google did not meet a deadline to serve its own expert evidence to the court.

The economic expert conclave will discuss matters such as payment features and overcharging allegations in Apple and Google’s app stores as part of Epic Games’ allegations the two forced app developers to pay “materially higher” commissions.

Prior to Friday, all three were to be involved in the same conclave.


However, Mr Young said he was “concerned about the consequences of the delay on the trial and trial preparation” and submitted it would be more efficient to move forward with just Apple.

“We do say the expert conclave is ready to be set up and proceeded with in the Apple case … it should not be referred,” Mr Young said.

Counsel for Google, Cameron Moore SC, complained splitting the two conclaves could “really cause confusion or difficulty”.

Mr Moore said he was particularly concerned one expert – who both Google and Apple were to rely on – may be swayed by decisions made in one conclave so then cannot be objective to the next.

Representing Apple, Matthew Darke SC said he would also oppose this because of the “significant overlap” for both Apple and Google.

“It’s going to lead to overlapping reports in the two proceedings that will only make the economic evidence … difficult to comprehend.

“For the sake of the two-week delay and the combined conclave process, it is the lesser of the two evils to keep them together rather than separate them out,” Mr Darke submitted.

But Justice Jonathan Beach rejected these arguments, finding instead it was better to move forward with two conclaves given the delay.

“It’s not going to prejudice you; it’s just going to be a less efficient way of dealing with things,” Justice Beach told Google.

When Justice Beach added Google was “the cause of your own misfortune” because of the delay, Mr Moore said Epic Games had “months and months and months” of its own delay in comparison.

“It hasn’t really pushed the timetable very much at all from what must have been clear from [Epic Games] delay,” Mr Moore said.

Responding to concerns one expert may be influenced, Justice Beach told Mr Moore this was only Apple’s risk.

He also raised the possibility of ordering a supplementary report if there are any major differences between the expert reports.

Given it is the “lesser of two evils”, the order to split was made.

“More convincingly, it seems to me that Google suffers no permanent prejudice whatsoever by adopting this process,” Justice Beach said.

“If there are any imperfections … by reason of splitting off the expert evidence, those matters can easily be resolved at a later time.”