Why wasn’t Epic v. Apple a jury trial like Epic v. Google?

Epic’s antitrust cases against each of Apple and Google resulted in arguably inconsistent outcomes.  In both, Epic challenged app-store commission fees and in-app payment requirements as anticompetitive.  After a bench trial in Epic v. Apple, the district court largely ruled against Epic on its core antitrust claims, finding that, even if Apple’s practices were anticompetitive, Epic had not successfully demonstrated a viable, less restrictive alternative to achieve the pro-competitive justifications for Apple’s practices (e.g., security justifications).  The Ninth Circuit affirmed.  But in Epic v. Google, a jury found Google’s similar restrictions to violate the antitrust laws.

It’s notable that only the Apple case was tried to a jury: Both of Epic’s cases against Apple and Google started as a preliminary injunction complaint for purely equitable relief (so no jury trial right attached).  Both Apple and Google responded by filing contract-based counterclaims for damages and requesting a jury trial on those.  But in the Apple case, Apple subsequently withdrew that jury trial request with Epic’s consent.  See Dkt. 105 (Case No. 4:20-cv-05640) (“Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the Court, and not by a jury.”).  Epic’s Google case, however, was initially set to be tried concurrently with Match Group’s similar case against Google that included a request for damages.  The damages request entitled Match to a jury, but Match settled its case with Google shortly before trial.  Google never withdrew its contract-based counterclaims or its request for a jury trial.  Nonetheless, in a statement to the court on the eve of jury selection, Google requested that its contract-based claims be tried to a jury first, followed by a bench trial on the antitrust claims.  See Dkt. 499 (Case No. 3:20-cv-05671). The court denied that request, leaving Epic able to successfully present its antitrust case to the jury largely due to happenstance.