Lawyers acting for Apple were criticised by both a US judge and the US government last week as the technology company continues to fight off claims of anticompetitive conduct.
In a court hearing relating to the ongoing legal battle between Apple and Fortnite maker Epic Games over Apple’s App Store rules, judge Yvonne Gonzalez Rogers rebuked Apple’s legal team for failing to grasp that - when she asked to see “any notes” relevant to the current dispute - she meant “all relevant notes” and not just “a selection of notes”.
Meanwhile the US Department Of Justice, which has filed an antitrust lawsuit against Apple, said that the company’s attempts to get that litigation dismissed “overlook well-pleaded facts” and “misstate the law”.
As part of the long-running dispute between Apple and Epic, Gonzalez Rogers previously ordered Apple to change its rules so that app developers are allowed to signpost alternative payment options from within their iOS apps.
That means developers can tell users to make payments elsewhere - such as via the developer’s own website - and so avoid using Apple’s own in-app transactions system, which charges a 30% commission.
Having responded to that court order, Apple does now allow such signposting in the US, but still wants a 27% commission on any transactions that begin in an app.
Epic claims that Apple’s insistence that it still gets a 27% commission - even when the actual payment takes place outside Apple’s in-app payment platform - means that Apple has complied with neither “the letter nor the spirit” of Gonzalez Rogers’s court order.
In reviewing that claim, the judge has been trying to understand the decision-making process Apple went through when making its decision to charge a 27% commission.
At a court hearing in early May, Gonzalez Rogers asked Apple to provide to Epic’s lawyers and the court “any notes” taken by Apple executives as part of the decision-making process. That request, the judge said, would include any written notes taken in meetings, plus any communications via email, iMessage or Slack.
Apple complied with that request, but only in relation to that specific list of platforms where notes were taken or messages sent. On Friday, Epic said there were clearly notes made and messages sent internally at Apple regarding the 27% commission that hadn't been provided, because they were stored on other platforms, in particular Quip.
Gonzalez Rogers was not impressed with Apple's narrow definition of “any”. According to Law360, she told Apple’s lawyer Mark A Perry that her request to see “any notes” was deliberately broad.
“The whole point, Mr Perry, was to get the documents relevant to decision-making. That was the point and you didn't do it. Let me make it clear, because you obviously didn't understand. I want all of Apple’s documents with respect to Apple’s decision-making with respect to issues before the court. All of them. All”.
Although Friday's tetchiness from the judge related to something relatively minor, Gonzalez Rogers has pushed back on a number of Apple’s statements in court in this latest phase of the legal battle with Epic.
In the hearing earlier in May, she said on a number of occasions that she didn’t understand the rationale for the new rules Apple had introduced when complying with her original order, suggesting that the only obvious explanation was that the technology company was trying to “stifle competition”.
Nevertheless, it still remains to be seen whether the judge will ultimately conclude that Apple’s 27% commission is a failure to comply with her original order.
Meanwhile, Apple is facing much wider claims of anticompetitive conduct in the DoJ’s antitrust lawsuit. The government department’s legal filing sets out various ways in which it believes the tech giant is violating competition - or antitrust - law in the US, including in relation to its App Store rules.
Last month Apple’s lawyers wrote to the court that will consider those DoJ claims in a bid to get the lawsuit dismissed. Giving an initial indication of what arguments will be included in their formal motion for dismissal, Apple’s attorneys wrote “this case lies well beyond the outer limits of antitrust law”.
The DoJ responded with its own letter to the court last week. Before getting into an assortment of legal technicalities, the government argued that Apple’s letter, “overlooks well-pleaded facts and misstates the law”, before saying that Apple’s motion to dismiss should be denied, because the company’s “conduct is unlawful under straightforward antitrust principles”.
