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Judge proposes jury hearing for the big Epic v Apple bust up

By Chris Cooke | Published on Tuesday 29 September 2020

The judge overseeing the ongoing legal battle between Apple and ‘Fortnite’ maker Epic has advised that the dispute go before a jury next year.

Noting that that dispute is “on the frontier of antitrust law” – and will almost certainly end up in an appeals court – she said that she felt that putting both sides’ arguments before a jury was the best option.

Otherwise, she’ll rule on the case at first instance, but that ruling will be somewhat irrelevant given the inevitable appeal, and the fact that any appeals court is much more likely to undo a ruling made by a judge at district court level than a jury.

This was discussed during a Zoom session to consider the ongoing legal battle yesterday. Epic Games accuses Apple of anti-competitive conduct – and therefore of being in breach of US antitrust laws – because of the rules it enforces on its App Store.

Like many other app makers – including, notably, Spotify – Epic doesn’t like having to pay Apple a 15-30% commission on any in-app transactions that occur on iOS devices. It also objects to Apple rules that prevent app makers from including or even sign-posting alternative payment options.

As well as lawsuits and countersuits that have been filed by Epic and Apple – and the former’s public-facing anti-Apple PR campaign – there is also the side issue of whether Apple can ban Epic from its App Store and developer tools while the two companies’ litigation goes through the motions.

Apple banned ‘Fortnite’ from its App Store after Epic broke its rules by including an alternative payment option. But it would like to also instigate wider sanctions against its rival.

To date judge Yvonne Gonzalez Rogers has generally concluded that Apple should be allowed to withdraw Epic’s apps from its store if the gaming firm has broken its rules, because Epic could just not break the rules while the legal dispute over whether those rules are anti-competitive is fought out in the courts.

However, she has so far cautioned Apple against extending sanctions to other parts of Epic’s business, in particular its Unreal Engine, which is used by countless other developers.

At yesterday’s hearing, according to Law360, Rogers expressed some scepticism toward both sides. Noting how Epic deliberately broke Apple’s rules by adding the alternative payment option on the iOS version of ‘Fortnite’ before going legal over those rules, she noted: “There are plenty of people in the public who think you’re heroes for what you did, but it’s still not honest”.

She was likewise sceptical of some of Apple’s arguments – and its reasoning for why sanctions against Epic should go beyond the App Store. “I really don’t think everything’s going to explode because Unreal Engine is allowed to operate”, she noted at one point.

Meanwhile, regarding what route this dispute should take, she told legal reps for both Apple and Epic to decide whether they’d prefer a judge or jury make a ruling at first instance.

Explaining why she proposes the jury option, she stated: “You’re going to go through this whole process. It’s going to cost a lot of money, time and effort, and as we’ve noted, these are important cases and they’re on the frontier of antitrust law”.

“You might as well find out what people really think and want, and take that to the court of appeal”, she went on, “because I know I’m just a stepping stone for all of you, and whoever loses is going to take it up and say everything I do is wrong. I understand it. There’s no hard feelings. That’s the job. But I think it’s important enough to understand what real people think”.