Epic Games Signed Google Developer Pact ‘Under Duress,’ Says Its Answer

Epic Games “denies each and every allegation” in Google’s Dec. 1 counterclaims asserting Epic “willfully breached” its developer distribution agreement (DDA) with Google (see 2212020038), said Epic’s answer Thursday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco.

Google’s counterclaims alleged Epic submitted a version of Fortnite for publication on Google Play “with a payment method other than Google Play Billing for purchases of in-app content.” By so doing, said Google, Epic denied Google its service fees under the DDA for any purchases made through the app outside of Google Play Billing.

Epic responded by alleging Google seized on the “theoretical vulnerability” in the Fortnite installer “as a means to deter users from obtaining Android apps outside Google Play and to deter developers from distributing Android apps outside Google Play.” Epic “promptly remedied” the vulnerability with a patch that took effect the next time a user launched the Fortnite app, it said. “Consistent with typical industry practice, Google should have waited up to 90 days to allow more users to launch the app and become protected before making the bug public,” it said. “Instead, disregarding the security of users,” Google “rushed” to publicize the bug, it said.

The contracts on which Google’s counterclaims are based “are illegal and unenforceable on the basis that they violate the antitrust and unfair competition laws” of the U.S. and California, said Epic. The DDA on which Google seeks to rely “is unenforceable by reason of duress,” said Epic. The Fortnite developer “did not act freely and voluntarily” in executing the DDA, “but instead under the duress and compulsion wrongfully and illegally created by Google,” it said. Google’s claims are barred by “the doctrine of unclean hands,” said Epic, meaning it alleges Google acted unethically in connection with the circumstances that provoked the litigation.

The court should deny Google damages because any such award “would result in unjust enrichment to Google,” said Epic. Any injuries or damages that Google may have suffered “were not caused solely or proximately by any act or omission of Epic,” it said. “Any damages that Google purports to have suffered are too remote or speculative to allow recovery, and it is impossible to ascertain and allocate such alleged damages with reasonable certainty,” it said.