Sean Hollister

Senior Editor

Sean HollisterDec 11, 2023

I personally find this bit of jury instruction quite interesting:

Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.

On expert witnesses, such as the various economics professors we heard from:

Such opinion testimony should be judged like any other testimony. You may accept it, reject it, or give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.

Sean HollisterDec 11, 2023

Judge Donato is reading the final jury instructions in Epic v. Google.

I just uploaded a copy; you can read along right here if you like.

One of the first notable jury instructions:

Epic did not pay Google $398,931.23 in fees that Google would have received if transactions processed using Epic’s payment solution were instead processed through Google Play Billing. On the basis of these stipulations, you will no longer be asked to address Google’s counterclaim.

That’s just a fact now: Epic owes that money if its contract with Google was valid.

Epic v. Google final jury instructions

[DocumentCloud]

Sean HollisterDec 11, 2023

The Epic v. Google jury has arrived for their last day in open court.

Judge James Donato has quite a smile on his face today; I don’t think I’ve seen him grin so much since the trial began.

We’re about to read jury instructions; Judge Donato says the jury will be here from 9AM to 5PT until they reach their verdict. Until now, days have typically ended at 3:30PM PT.

Sean HollisterDec 11, 2023

Actually, we’ll be back in 15–20 minutes.

Judge Donato had some clarifications for both parties about how he modified the jury instructions and verdict form (for example, having the jury stop right away if they don’t find that Epic has proven the existence of a relevant antitrust market in this case).

But apparently “the jury is still trickling in,” so we’re going to pause before we come back with jury instructions and closing arguments. Judge Donato estimates it’ll take about 45 minutes to read through jury instructions, too, and you can read those all by yourself, so if you wanted to come back in an hour, I wouldn’t be offended!

Sean HollisterDec 11, 2023

Five exhibits shown in the Epic v. Google courtroom won’t be made fully public.

As I’ve mentioned, the exhibits from this trial won’t be made public until 10 days after the verdict, and we’re now hearing there are as many as five that won’t be available in full at all. Hopefully I copied down anything relevant when it was shown!

I suspect this includes some of the Spotify numbers — though we already got some flabbergasting ones.

Sean HollisterDec 11, 2023

Join us for the final day of Epic v. Google before a jury decides.

I’m here bright and early in federal court to hear the closing arguments for each side. Last week, Google CEO Sundar Pichai and Epic CEO Tim Sweeney decided not to settle, so we’re full steam ahead with the jury. I hear it’s possible we could even get a verdict today.

Need a catch-up? Here are the top 20 things we learned from a fortnight in Fortnite court.

Here we go, starting with logistics:

Epic v. Google: everything we learned in Fortnite court

Sean HollisterDec 9, 2023

Google CEO Sundar Pichai and Epic CEO Tim Sweeney have decided not to settle.

They met for an hour on Thursday, lead attorneys for both sides told Judge James Donato in a filing (pdf) this evening, following an earlier settlement discussion between Sweeney and Google’s heads of partnerships and product management for Android that was ordered by the court.

“These meetings did not result in a settlement.”

Also new: This is the final verdict form (pdf) the jury will use to decide Epic v. Google.

A fortnight in Fortnite court

Sean Hollister

Dec 5

Sean HollisterDec 6, 2023

We now know what the Epic v. Google judge will tell the jury.

Final jury instructions are here, as is the judge’s own near-final verdict form. Notably, he will say:

You have seen evidence that Google Chat communications were deleted with the intent to prevent their use in litigation. You may infer that the deleted Chat messages contained evidence that would have been unfavorable to Google in this case.

More notably: he intends to let jurors decide where they believe Google has monopoly power, if any. There’s a big white write-in box waiting for them.

He will also personally decide if Epic’s contract with Google was legal — if so, Epic will pay $398,931.23 for sneaking its own payment system into Fortnite regardless of the jury’s verdict.