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Epic and Apple both want the Ninth Circuit to reconsider its App Store judgement

By | Published on Monday 12 June 2023


Both Epic Games and Apple have asked the US Ninth Circuit appeals court to reconsider its ruling on the good old Epic Games v Apple legal battle. Neither side is happy with either the original ruling in that dispute, or the Ninth Circuit’s more recent decision to uphold most of the original judgement.

This is the big bust up over Apple’s App Store rules, particularly the rules that force app-makers to take in-app payments on iOS devices via Apple’s own commission-charging transactions system, while also banning the signposting of alternative payment options online.

Fortnite maker Epic – like many other app-makers, especially Spotify – argues that these rules are anti-competitive. However, when Epic sued Apple through the Californian courts arguing that the tech giant was in breach of US competition law by enforcing its App Store rules, the judge rejected those arguments.

Although, Epic had more success when it comes to the rule against sign-posting alternative payment options, what is often referred to as the anti-steering provision. The gaming firm said that that violated California’s unfair competition law and – on that point – the judge agreed.

Both sides in the dispute appealed to the Ninth Circuit, which then upheld most of the original judgement in April this year. But Epic continues to argue that Apple is in breach of US competition law, while Apple continues to insist its anti-steering provisions do not violate Californian state law.

To that end both companies last week filed new legal papers with the Ninth Circuit requesting that the appeals court consider the case a second time. That could mean the same judges sitting down to do some reconsidering, or even better – both Epic and Apple reckon – it could be an en banc rehearing, which would involve more judges.

Reviewing April’s ruling in the Ninth Circuit, Epic states: “The conflict between the panel’s ruling and prior precedent involves important legal questions, the stakes here are uniquely high, and the outcome is plainly unsustainable. En banc review is warranted”.

“The panel decision conflicts with circuit precedent on whether conduct determined to be reasonable under the [US-wide competition] laws may be enjoined as ‘unfair’ under California’s Unfair Competition Law”, Apple’s submission reckons. “Rehearing is necessary to secure and maintain uniformity of decision on these issues of exceptional importance”.