US and California Allotted Argue Time in Epic Games-Apple Antitrust Appeal Hearing

Per an order issued by the Ninth Circuit Court of Appeals last Friday, the federal government will be allowed ten minutes of oral argument and California five minutes during the court’s October 21 hearing in Epic Games and Apple’s antitrust dispute. The argument time for amici will come alongside the argument period designated for the main parties.

The question at the heart of Epic’s appeal is whether the lower court wrongly concluded that Apple does not possess and abuse monopoly power in the iOS app distribution market.

The case, which has been fast-tracked since its inception in August 2020, laid claims against Apple under federal and state antitrust law. Epic, like other app developers who settled allegations in June for $100 million, claimed it was harmed by the supracompetitive commission, up to 30%, charged by gatekeeper Apple.

In Epic’s case, the gaming app developer asked to use an alternative to Apple’s in-app-payment system and distribute its games through a proprietary store within the App Store. When Apple refused, Epic deployed an alternative payment method for its wildly popular Fortnite game and filed suit.

Judge Yvonne Gonzalez Rogers ruled on Epic’s claims and Apple’s breach of contract-related counterclaims last September. The court largely found in favor of Apple, explaining that Epic culd have done more to demonstrate Apple’s illegal monopoly. 

The judge did enjoin Apple’s “anti-steering” provisions, guidelines prohibiting certain forms of communication between app developers and purchasers under the California Unfair Competition Law (UCL).

On appeal, the parties filed multiple briefs apiece, delving into both the merits of Epic’s appeal and Apple’s cross appeal. Additionally, amici curiae weighed in, including 35 states, the American Antitrust Institute, more than three professors, and Public Citizen, a non-profit consumer advocacy organization.

For its part, the federal government filed a brief to “address errors in the district court’s analysis of the Sherman Act, which, if uncorrected, could significantly harm antitrust enforcement” while taking no position on the merits of the parties’ claims.

California’s April-filed brief neither took sides nor expressed an opinion on the correctness of the district court’s UCL decision. Instead, and based on the state’s “strong interest in the proper interpretation and development” of the UCL, it submitted a brief focused on the “unfair” prong of the law.

Last week’s order noted that the state and federal governments’ motions to participate in oral argument were unopposed and their argument time will be in addition to that of the parties.