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Apple confirms it is taking its Epic App Store rule dispute to the US Supreme Court

By Chris Cooke | Published on Tuesday 4 July 2023

Apple has confirmed that it plans to take its big legal battle with Fortnite maker Epic Games to the US Supreme Court, after the Ninth Circuit Appeals Court knocked back a request to consider the case a second time.

Epic – like Spotify and other app makers – objects to some of the rules enforced by Apple over any apps installed on iOS devices. In particular, it doesn’t like the rules that force many app makers to take any in-app transactions via Apple’s commission-charging payments platform.

App makers have been seeking to force a change to those rules in various countries through both litigation and lobbying. Epic sued Apple through the Californian courts arguing that the tech giant’s App Store rules breach US competition law.

In the main, that lawsuit was unsuccessful, although the judge hearing the case did conclude that one specific Apple rule – the ‘anti-steering provision’ that prevents app-makers from even sign-posting alternative payment options online – did breach California’s unfair competition law. And to than end she issued an injunction ordering Apple to stop enforcing that particular rule.

Both Epic and Apple were unhappy with the judgement in that case, the latter regarding the decision on its anti-steering provision. As a result, they appealed to the Ninth Circuit. Earlier this year, it pretty much upheld the original judgement. Both Epic and Apple then asked for the appeal judges to reconsider the case. But late last week the Ninth Circuit formally knocked back that request.

Which is why the matter is now heading to the Supreme Court. Or, at least, Apple certainly wants the highest court in the US to consider whether the Californian court was right to say that its anti-steering provision was in violation of unfair competition law in that state.

Apple’s lawyers also argue that the injunction against its anti-steering provision is unfair because it means a dispute with one app-maker in one state has basically forced it to change its policies in relation to all app-makers in all states. This means the injunction works as if Epic’s case had been a class action, even though it wasn’t.

“The district court issued a sweeping injunction prohibiting Apple from enforcing its anti-steering rules against all developers of iOS apps offered for distribution in the United States”, it said in a new submission to the Ninth Circuit court, “even though the sole named plaintiff – Epic Games – did not seek or obtain class certification, and did not prove that an injunction running in favour of non-parties was necessary to make it whole”.

The Ninth Circuit’s decision to uphold the injunction, it went on, “departs from Supreme Court and Circuit precedent holding that an injunction cannot be any broader than necessary to make the plaintiff whole, and that relief cannot otherwise extend beyond the named plaintiff without class certification”.

Apple was making a new submission to the Ninth Circuit because it wants the injunction against its anti-steering provision – which was paused by the lower court pending the appeal – to remain paused while it tries to persuade the Supreme Court to consider the case.

Confirming it plans to petition for a ‘writ of certiorari’ at the Supreme Court – basically asking the highest court to take on the case – Apple stated: “The petition will raise substantial questions of law and there is good cause for a stay. The petition will not be frivolous or filed for purposes of delay”.

One of the key arguments presented for keeping the injunction paused, pending the petition to the Supreme Court, is the fact that Epic doesn’t currently have iOS versions of its apps, because it won’t comply with the other Apple rules. So it won’t actually be impacted if the anti-steering injunction is further delayed.