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US court further delays injunction targeting Apple’s App Store rules
By Chris Cooke | Published on Tuesday 18 July 2023
The US Ninth Circuit Appeals Court has granted a further stay on the injunction against Apple’s anti-steering provisions. This means the court order forcing a change to Apple’s App Store rules, resulting from a lawsuit pursued by Epic Games, will remain paused for now while the tech giant takes the legal battle to the US Supreme Court. Epic has expressed disappointment with the delay.
Fortnite maker Epic – like many other app makers, including Spotify – objects to the rules relating to in-app payments on iOS devices. Apple’s rules mean many app makers are obliged to use the tech giant’s own commission-charging transactions system to take in-app payments. And they are also barred from sign-posting other places online where payments can be made.
Epic argues that these rules breach US competition law. Its lawsuit presenting those arguments, filed with the courts in California, mainly failed. However, the judge overseeing the case did conclude that the specific rule stopping the sign-posting of alternative payment options – often called the anti-steering provision – violates Californian unfair competition law.
With that in mind, the judge issued the injunction forcing Apple to allow app-makers to sign-post other payment options. However, that injunction was paused after both Apple and Epic took the case to the Ninth Circuit court. But the appeal judges more or less backed the lower court’s ruling, including in relation to the anti-steering provision.
Apple now plans to take that specific element of this case to the Supreme Court. And to that end, earlier this month it urged the Ninth Circuit to keep the injunction regarding alternative payment options paused while it goes through that process. Unsurprisingly, Epic objected, claiming there were no grounds for further delaying the injunction going into effect.
But the Ninth Circuit does not agree, and yesterday stated that “the mandate is stayed for 90 days to permit the filing of a petition for writ of certiorari in the Supreme Court. Apple must notify the court in writing that the petition has been filed, in which case the stay will continue until the Supreme Court resolves the petition”.
That said, despite agreeing to further delay the injunction, one of the Ninth Circuit judges was clear that he feels Apple’s arguments against it are pretty weak.
“Given our general practice of granting a motion for a stay if the arguments presented therein are not frivolous, I have voted to grant Apple’s motion”, judge Milan D Smith Jr wrote.
However, he added, “I write separately to express my view that, while the arguments in Apple’s motion may not be technically frivolous, they ignore key aspects of the panel’s reasoning and key factual findings by the district court”.
“When our reasoning and the district court’s findings are considered”, he continued, “Apple’s arguments cannot withstand even the slightest scrutiny. Apple’s standing and scope-of-the-injunction arguments simply masquerade its disagreement with the district court’s findings and objection to state-law liability as contentions of legal error”.
So, presumably, Smith doesn’t reckon that Apple is going to successfully block the injunction at the Supreme Court.
Meanwhile, Epic boss Tim Sweeney wrote on Twitter: “Sadly, Apple’s anti-steering rules – which both the district court and the Ninth Circuit Court found to be illegal – will remain in place, as the Ninth Court court stayed the injunction that puts an end to the practice. Justice delayed, again”.
