Who wins in Epic-Apple antitrust suit? A short trial leaves big issues in hands of a judge

Editor’s note: Veteran attorney Jim Verdonik is cofounder of Raleigh-based Innovate Capital Law. Verdonik is following the Epic Games-Apple antitrust suit for WRAL TechWire. Testimony in the trial ended a week ago. A judge’s decision in the case could be weeks away.

RALEIGH – The biggest thing that surprised me about the trial is how short it was.

Antitrust cases are notoriously long. But this case started less than a year ago and the trial itself lasted only several weeks.

Now we wait for U.S. District Judge Yvonne Gonzalez Rogers to issue a decision.

First question is why was the case so short?

Two factors.

Jim Verdonik

Much of the pretrial and trial in antitrust cases is about proving the amount of damages.

In this case, the plaintiff was asking the court to Apple to change its business practices. Damages weren’t really the issue.

The second factor is that both parties waived their right to a jury trial. The judge was both the judge and the jury.

Epic-Apple suit now in hands of federal judge – how will she rule? Reading the tea leaves

In jury trials, mountains of evidence is often presented by both sides. One expert witness after another. Much of it is repetitious.

That didn’t happen in this trial.

The judge wouldn’t permit it.

So, this is a good lesson to anyone who complains about the American justice system being too slow and too expensive.

Waive your right to a jury trial.

The most interesting thing about the substance of the case was that the judge seemed to be looking for ways to not declare Apple’s 30% commission on games an antitrust violation, but still give Epic the ability to sell on games on Apple, while selling in game items through Epic’s own platform.

We’ll see if Epic presented a strong enough case to with that point when the judge decides.

What is most clear about this case is that it showed that antitrust laws designed to deal with railroads and oil and steel monopolies are inadequate to deal with complicated software businesses.

New legislation will be required.

I look to the states to lead the way on new legislation.

States have a type of statute that prohibit what are called “unfair and deceptive trade practices.”

I foresee an expansion of the scope of these state statutes to reign in the practices of Big Tech.

This is already happening in a number of states.

I think the issues the judge is looking at in this case related to Apple building fences around people who own iPhones will provide a roadmap for more state law changes.

After a number of states act, pressure will grow for a change in national antitrust laws so that businesses operate across the country under one set of laws.

The bottom line is that this one judge’s ruling will not be the end of these issues.