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Epic says there are no grounds for further delaying US injunction against Apple’s anti-steering provision
By Chris Cooke | Published on Friday 7 July 2023
Epic Games has urged the US Ninth Circuit Appeals Court to reject a request by Apple to further postpone an injunction that bans the tech giant’s often controversial anti-steering provision. Epic claims that Apple, in its recent arguments in favour of such further postponement, “scraped the very bottom of the barrel and came up empty”.
Fortnite maker Epic has been pursuing legal action against Apple, of course, in relation to the latter’s App Store rules. In particular the rule that says in-app payments on iOS devices must use Apple’s commission-charging transactions system. And the accompanying anti-steering provision, which bans app makers from sign-posting alternative payment options online, for example via a web page.
In litigation pursued through the Californian courts, Epic claimed that those rules violate competition law, presenting arguments in relation to both US-wide federal and Californian state law. In the main those arguments proved unsuccessful, but the district court judge hearing the case did agree that the anti-steering provision violated Californian unfair competition law.
And to that end she issued an injunction ordering that that particular rule no longer be enforced. However, both Epic and Apple then decided to take the dispute to the Ninth Circuit Appeals Court, so the injunction was paused while those appeals went through the motions.
In the end, the Ninth Circuit pretty much upheld the lower court’s ruling, including the injunction against the anti-steering provision. And last week judges in the appeals court declined a request from both parties to reconsider that judgement.
Earlier this week Apple went back to the Ninth Circuit confirming that it now intends to take the decision regarding its anti-steering provision to the US Supreme Court. And with that in mind, it believes the injunction regarding that provision should remain paused while it goes through that process.
Responding to that, Epic says in a new court filing that – to justify further postponing the injunction – there must be “reasonable probability” that the Supreme Court will consider the case; “significant possibility” that Supreme Court judges could reverse the lower court’s decision; and “likelihood that irreparable harm will result if [the injunction] is not stayed”.
Epic then argues that there is “no realistic prospect” that the Supreme Court will hear the case, “much less reverse” the rulings made by the lower courts. Therefore there are no grounds for further delaying “an injunction that should have taken effect more than a year ago”.
Elsewhere, Epic again disputes Apple’s claim that without the anti-steering provision it will not be able to “protect users from fraud, scams, malware, spyware and objectionable content”. The content that apps will link to is already accessible via an iOS device – for example via a web browser. So, “Apple is not protecting users; it is protecting its bottom line”.
And if, on the off chance, the Supreme Court did take the case and ultimately overturn the lower court decision regarding the anti-steering provision, “Apple could simply and easily revert to its existing anti-steering rules”.
Meanwhile, by further delaying the injunction and allowing the anti-steering provision to remain in force, “Epic, other app developers, and consumers are all directly injured when Apple requires [alternative payment options] be concealed”.
In its filing earlier this week, Apple noted that Fortnite is not currently available on iOS devices because Epic won’t comply with other App Store rules. Therefore, it said, Epic itself is not actually affected by any further postponement of the injunction.
However, Epic counters, it does still operate iOS apps via a subsidiary business and, as such, “continues to be affected by the policies that govern the App Store”. Epic now owns Bandcamp, you may remember, which continues to have apps available on iOS devices.
We await to see how the Ninth Circuit responds.
