At Ninth Circuit, Epic Games Opposes Apple’s Renewed Bid to Halt Anti-Steering Injunction

Last Friday, Epic Games Inc. argued that the appellate court should rule no differently than the  district court, which denied Apple’s motion to stay the mandate pending resolution of the parties’ cross-appeals. The mandate at issue requires Apple to eliminate its so-called anti-steering provisions, directives within its terms that “‘contractually enforce[] silence’” between app developers and consumers concerning purchasing alternatives other than Apple’s own in-app payment solution (IAP).

The well-publicized feud between Epic and Apple culminated, temporarily, when the district court entered an injunction against Apple in September. The court found Apple’s provisions impermissibly restrictive, and ordered the company to discard them “in order to provide consumers with information about, and readier access to, competitive alternatives to Apple’s IAP,” Epic said in last week’s opposition.

Epic argues as it did before the district court, that Apple fails to show its entitlement to a stay. First, the brief contends that Apple has not shown that it will suffer irreparable harm without a stay.

“Throughout the trial, Apple argued that its power over consumers and developers was constrained by consumers’ ability to make purchases outside an app, such as on a website.  But Apple now claims it would be irreparably harmed by an injunction that makes that option visible to consumers,” the brief says.

Epic also asserts that Apple has not shown it is likely to succeed on the merits of the California Unfair Competition Law claim it lost at the district court level. Epic touts the court’s findings as factually detailed and supported by sufficient evidence.

Finally, Epic argues that the public interest weighs against a stay. The purpose of the injunction was to bring transparency to the marketplace, and as such must stand to benefit developers like Epic as well as consumers.

Cravath, Swaine & Moore and Faegre Drinker Biddle Reath LLP represent Epic and Gibson, Dunn & Crutcher LLP represents Apple on appeal.