Epic’s attorney Bornstein says he’s now only pursuing per se on the Project Hug deal for Activision Blizzard King, dropping Riot and Supercell. He’s justifying it because ABK could have had a compelling store and Google seemingly nipped it in the bud knowingly.
But Judge Donato is still inclined not to do per se, bringing up an analogy about an “entrenched medical supplier that has a monopoly share of pulse oximeters,” which, he revealed to laughs, was not a theoretical example but a real case he was involved in.
As I wrote earlier, Epic wasn’t even trying to argue it didn’t breach its contract, and it appears that Epic is formally conceding to its breach as well — Judge Donato says we’re going to eliminate the breach of contract jury instructions and have the jury decide “how much, if anything, that breach is worth.”
Google is trying hard to argue that Judge Donato should consider an aftermarket theory, but he says it’s “completely inconsistent with the evidence that’s been presented in this case” and doesn’t agree it should apply at all. I will admit I do not know what aftermarket theories are or how they work, but Google’s lead attorney tried to argue that Google has been arguing from the beginning that people buy their phones for apps — so that gives me a clue.
We’ll be back tomorrow — yes, we do have court on a Friday for once, since day 8 got partially canceled. Tomorrow will be the close of evidence in this trial, and then we’ll be off for a week. Closing arguments and the verdict should come the week after that.
Each party will get an hour for closing arguments, says Judge Donato, and we should expect to be here until 5PM or later each day on the last week of trial.