Google's ties to outside backers questioned in Epic Games appeal

By Mike Scarcella

Jan 9 (Reuters) - Organizations backing Google in an antitrust case brought by “Fortnite” maker Epic Games should not be allowed to obscure their financial ties to the Alphabet GOOGL.O unit, the 9th Circuit U.S. Court of Appeals heard this week.

Amicus briefs — third-party submissions advancing their own arguments in an appeal — should disclose if they received any financial support from either side, Professor Paul Collins Jr of the University of Massachusetts Amherst argued in an amicus submission of his own in the case on Tuesday.

Google in November asked the San Francisco-based 9th Circuit to throw out a jury verdict and a U.S. judge's order forcing a sweeping overhaul of its app store Play. Google has denied Epic's antitrust claims, and the appeals court has scheduled oral arguments in the case next month.

Numerous groups including the U.S. Chamber of Commerce, Washington Legal Foundation and Competitive Enterprise Institute filed amicus briefs backing Google in the appeal. Epic has drawn supporting briefs from Microsoft, U.S. federal antitrust regulators and other groups.

Collins in his filing said most of Google's supporters did not disclose any financial support from the company, despite public records showing they received funding from the company in the past.

Collins' brief backed Epic, but the video game company did not fund his effort, he told the court. He has written previously on efforts by amicus parties to influence U.S. appeals courts.

Google and Epic declined to comment.

Federal court rules require amicus filers to disclose whether a company or individual involved in the case helped to fund their brief. Such disclosures are not required if a funding source or donation is general in nature, and not specifically earmarked for a brief.

The federal judiciary for years has weighed whether to expand financial disclosure rules for amicus briefs. A judicial panel in June advanced a proposal that would strengthen those rules.

The U.S. Chamber of Commerce has called the proposed rule change "unnecessary" and questioned its constitutionality. The Washington Legal Foundation has also opposed amending the requirements.

The Chamber, Washington Legal Foundation and Competitive Enterprise either declined to comment or did not immediately respond to a request for one.

Epic faced criticism in 2021 from Apple over an amicus brief that the Coalition for App Fairness filed in support of the video game maker in a case that was then at the 9th Circuit.

Apple said the coalition was not an independent party, but instead a creation of Epic. A lawyer for the coalition at the time said it had followed federal rules in its disclosures.

In a statement, Collins said it was "time for the U.S. Judicial Conference and Congress to step in and make positive changes that will shine light on what’s really going on with friends of the court."

The case is Epic Games v Google, 9th U.S. Circuit Court of Appeals, Nos. 24-6256 and 24-6274.

For Epic: Gary Bornstein and Antony Ryan of Cravath, Swaine & Moore

For Google: Neal Katyal and Jessica Ellsworth of Hogan Lovells

For Collins: Alex Aronson of Court Accountability Action

Read more:

Top Senate Republican McConnell blasts US judiciary for new ethics policies

US judicial panel proposes stronger amicus brief financial disclosures

(Reporting by Mike Scarcella)

((Mike.Scarcella@thomsonreuters.com;))