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Apple and Epic agree that a jury shouldn’t rule on all their disagreements

By | Published on Friday 2 October 2020

Epic Games logo

Apple and ‘Fortnite’ maker Epic Games have finally agreed on something. Both companies say that a judge, not a jury, should rule on all the things they don’t agree on. Which is lots of things, but principally Apple’s App Store rules. The judge they want to rule on that disagreement previously said that she thought it would better if the case went before a jury.

Epic is suing Apple, of course, over those App Store rules based on the argument they breach competition laws. Like Spotify, the games firm doesn’t like the fact that when you make an app for iOS devices you are obliged to use Apple’s payment platform and pay the tech giant a 15-30% commission on any transactions. App Store rules even ban you from signposting alternative payment options within the app.

Before going legal over those rules, Epic added an alternative payment option to the iOS version of ‘Fortnite’, resulting in the game being banned from the App Store. Once Epic had filed its competition lawsuit, Apple also went legal – arguing in a countersuit that the addition of the alternative payment option on ‘Fornite’ constituted breach of contract and unjust enrichment.

Both sides met on a Zoom call on Monday with the judge overseeing the case, Yvonne Gonzalez Rogers. Among other things, the judge discussed what route the Epic v Apple legal battle should now take, and whether the dispute should go before a jury, or whether it should be “tried by the court”, so that she herself would consider the various arguments and make a judgement.

Rogers said she thought the jury route made more sense. First, because Epic’s claims about the App Store rules are at “the frontier of antitrust law”, making the input of a jury more valuable. And secondly because whichever side loses at first instance will almost certainly appeal. And the appeals court will be less willing to meddle with a jury ruling.

Apple had initially asked for a jury to rule on its counterclaims against Epic. However, because Rogers wants all the various claims to be considered together, it has changed its mind on that, with both Apple and Epic seemingly wanting judges and only judges to rule on whether the App Store rules violate US competition law.

A filing made with the court after Monday’s hearing stated: “Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the court, and not by a jury”.

Noting Apple’s original request for a jury hearing for its counterclaims, the filing added: “Therefore, with Epic’s consent, Apple hereby withdraws its demand for a jury trial. The parties respectfully request that the case (including any claims and counterclaims) proceed to a bench trial on a schedule determined by the court”.