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Google says trial judge made legal errors in case

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Case goes before San Francisco-based appeals court

(Adds details from hearing throughout; updates headline)

By Mike Scarcella

Feb 3 (Reuters) - Lawyers for Alphabet's

Google and "Fortnite" maker Epic Games squared off before a U.S.

appeals court in California on Monday, as Google tries to undo a

jury verdict and a judge's order forcing it to revamp its app

store.

Google's lawyer argued to the San Francisco-based 9th U.S.

Circuit Court of Appeals that a trial judge made legal errors in

the antitrust case that unfairly benefited Epic Games.

Epic accused Google in a 2020 lawsuit of monopolizing how

consumers access apps on Android devices and how they pay for

transactions within apps. The Cary, North Carolina-based company

convinced a San Francisco jury in 2023 that Google illegally

stifled competition.

U.S. District Judge James Donato ordered Google in October

to restore competition by allowing users to download rival app

stores within its Play store and by making Play's app catalog

available to those competitors, among other reforms.

The order is on hold as the 9th Circuit weighs Google's

appeal.

Attorney Jessica Ellsworth, representing Google, told the

appeals court that the tech company's Play store competes

fiercely with Apple's ( AAPL ) App Store, and that Donato

unfairly barred Google from more broadly making that point.

Epic mostly lost a parallel antitrust lawsuit it filed

in 2020 against Apple ( AAPL ) at the same time it sued Google. Apple ( AAPL ) was

required to make some changes to its App Store, and the company

is still fighting with Epic about the scope of those reforms.

Ninth Circuit Judge Danielle Forrest pushed back on

Google. "There are definitely some clear factual differences

from the Android world and the Apple ( AAPL ) world, and your arguments

sort of brush that idea aside," Forrest said.

Ellsworth also told the appeals court that a jury should

never have heard Epic's lawsuit because it sought to enjoin

Google's conduct, not collect damages.

Epic's attorney Gary Bornstein asked the appeals court to

reject Google's arguments, telling the judges that the Android

app market has been "suffering under anti-competitive behavior

for the better part of a decade."

Bornstein defended Donato's injunction forcing Google to

make changes to its Play store. He disputed Google's statement

that the changes would harm user privacy and security.

Microsoft ( MSFT ) filed a brief backing Epic, as did the

U.S. Justice Department and Federal Trade Commission.

The 9th Circuit could issue a ruling later in the year. Its

decision can be appealed to the U.S. Supreme Court.