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US ruling blocking Apple’s anti-steering provision remains paused pending Supreme Court appeal

By | Published on Friday 11 August 2023


A judge in the US Supreme Court has declined to reverse a decision made by the Ninth Circuit Appeals Court that is pausing an earlier ruling that will force Apple to allow app-makers to sign-post alternative payment options in their apps.

It means that ruling will remain stayed while Apple ploughs on with the next stage of appeal in its legal battle with Fortnite maker Epic Games.

Epic – like many other app-makers, including Spotify – objects to Apple’s rules relating to in-app payments on iOS devices.

Those rules mean that many app-makers are obliged to use Apple’s own commission-charging transactions system to take in-app payments. Plus, they are not allowed to sign-post alternative payment options elsewhere on the internet. The latter rule is often referred to as the anti-steering provision.

Epic, Spotify and others have been seeking to force a change to those rules through lobbying and litigation in various countries. As part of that, Epic filed a lawsuit with the courts in California, accusing Apple of breaking competition law.

In the main that litigation was not successful, but the judge did rule that the anti-steering provision violated Californian law. And therefore, back in September 2021, she ordered Apple to allow the sign-posting of other payment options.

However, both Epic and Apple appealed the judge’s wider ruling to the Ninth Circuit court, and Apple successfully got the order regarding the anti-steering provision stayed pending the outcome of that appeal.

The Ninth Circuit pretty much upheld the lower court’s decision. Which means Apple is now taking the matter to the US Supreme Court. And last month it successfully convinced the Ninth Circuit that the lower court’s ruling on the anti-steering provision should remain paused while it goes through that process.

For it’s part, Epic reckons there shouldn’t be any further delays in forcing Apple to allow alternative payment options to be sign-posted in iOS apps.

The chances of the Supreme Court even hearing Apple’s appeal, let alone it over-turning the lower court’s judgement, are very low, it argues. And the ongoing delay in enforcing this particular ruling is harming both app-makers and app users.

Having failed to convince the Ninth Circuit of that, it hoped that the Supreme Court itself might intervene. According to Reuters, it fell to Supreme Court judge Elena Kagan to consider that request, because she handles any emergency matters that arise from a group of US states including California.

So, Kagan gave Epic’s arguments a little consideration and decided, on balance, that there is no case for reversing the Ninth Circuit’s decision on this. Which means the nearly two year old ruling on the anti-steering provision will remain stayed for the time being.