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Apple says Ninth Circuit should ignore other app makers when considering Epic injunction

By Chris Cooke | Published on Thursday 2 December 2021

Apple has urged the Ninth Circuit appeals court in the US to ignore a so called amicus brief submitted as part of its ongoing dispute with Epic Games. Why? Because the impressively independent sounding Coalition For App Fairness – which is behind the amicus brief – is, in fact, a front for Epic. Or at least so says Apple.

Fortnite maker Epic has sued Apple in various countries over its App Store rules, which many app makers – including Epic and Spotify – reckon are anti-competitive. In the US that legal battle was heard in a Californian court, which actually rejected many of Epic’s competition law arguments against Apple. However, that court did issue an injunction very much in Epic’s favour.

One big gripe in relation to the App Store rules is that all in-app payments on many iOS apps must be taken via Apple’s commission-charging transactions platform, and alternative payment options elsewhere on the internet cannot be sign-posted from within the app. That latter rule is often referred to as an ‘anti-steering provision’.

Apple has already made some concessions in that domain, mainly in response to litigation and regulator intervention, so that from next year so called reader apps – like Spotify – will be able to sign-post alternative payment options. But that doesn’t help the makers of other kinds of apps, like Epic and its Fortnite app.

The injunction in the Californian court, however, does help Epic. It orders Apple to allow alternative payment links within all apps on its platform. And that order is due to come into force on 9 Dec.

Both Apple and Epic are appealing the wider judgement in relation to their wider dispute in the Californian courts. With that in mind, Apple is arguing that the injunction regarding alternative payment links should be paused – or ‘stayed’ – pending the appeals, even though the appeals process could take years.

Having failed to convince the judge in the court that issued the injunction to stay her order, Apple has now taken the matter to the Ninth Circuit appeals court. In response, Epic has urged the appeals court judges to uphold the lower court’s injunction. But not only that, four other app makers – Tile, Match Group, Basecamp and Knitrino – alongside the aforementioned Coalition For App Fairness, have also called for the Ninth Circuit to keep the lower court’s injunction in place.

Those other app makers said in their amicus brief: “As a group of app developers large and small, [we] view the district court’s injunction against Apple’s anti-steering provisions as a vital cure for an extremely harmful and anticompetitive practice in a mammoth sector of the United States economy. Granting a stay of the district court’s injunction would deny the amici here and other developers like them the relief they badly need during the (potentially lengthy) pendency of this appeal”.

However, Apple has now urged the Ninth Circuit judges to reject that submission from the other app makers, on the basis that the Coalition For App Fairness is controlled by Epic, and that both the organisation and its other members are seeking to intervene in the case under Epic’s instruction.

In a filing with the court on Tuesday, the tech giant wrote: “Apple frequently consents to amicus filings but is compelled to respond here because Coalition For App Fairness has failed to inform the court that it is not an independent non-party”.

“CAF was created by Epic, is controlled by Epic, and answers to Epic, as the district court recognised and the trial evidence confirms”, Apple’s submission continued. “CAF’s motion is nothing more than an attempt by Epic to file two responses rather than one to Apple’s stay motion”.

And so the big Epic v Apple squabble continues!