We have reported extensively on the legal dispute between Apple and Epic Games in recent months. Epic had largely failed in its attempt to force Apple to allow third-party app stores on iOS. However, Apple has to make changes to the App Store as part of the ruling. Both Apple and Epic have opted to appeal the original verdict, as neither company was happy with the outcome. Now Apple has submitted its final brief in the ongoing litigation.
appeal against judgment
As a reminder, both Apple and Epic announced earlier this year that they would appeal Judge Yvonne Gonzalez Rogers’ verdict. Rogers’ original decision required Apple to adjust its App Store policies to allow developers to reference third-party payment options. The judge also ruled that Apple does not have a monopoly in the market in question.
Epic failed in its attempt to force Apple to allow a third-party app store on iOS. Apple, on the other hand, doesn’t like the fact that the guidelines for payment terms have to be adjusted. These should be implemented in the course of an injunction. However, the injunction was stayed pending appeal.
The appeal process has been running since January, but will now be concluded with Apple’s counter-appeal brief.
“Epic failed to prove damage”
Throughout the appeal process, Apple has emphasized that Epic lost the first hearing based on flawed reasoning and “unprecedented” and “unfounded” allegations of anticompetitive behavior, not an error of law. In the final counter-appeal, Apple continues to argue against the injunction, which would require Apple to make changes to the App Store to allow developers to use external payment methods.
Apple explains that Epic was unable to prove irreparable harm from Apple’s so-called anti-steering rules, which prevented developers from directing customers to alternative payment methods. The letter from Apple states:
“Epic has presented no evidence that the company has ever suffered actual harm from the anti-steering regulations, and does not cite any on appeal. Because Epic failed to prove any such damage—before, during, or after litigation—Epic was never entitled to post litigation [kalifornischen Gesetz gegen unlauteren Wettbewerb] to sue.”
Epic Games is not an iOS developer
Apple notes that Epic no longer satisfies the legal requirement of standing as the company is not an iOS developer and cannot be affected by a policy that applies to iOS developers.
This is cleverly put by Apple, but it remains to be seen whether the court will agree with this reasoning. When Epic first broke App Store rules by introducing alternative payment methods into Fortnite, Apple suspended the company’s developer account and hasn’t unlocked it since. Apple has said it has no plans to allow Fortnite back on the App Store while the legal battle continues. This means that Epic is missing the title of “iOS developer” (at least for now).
Judgment goes too far for Apple
Apple also believes that the injunction issued as part of the original ruling goes too far because it applies to all developers. Epic was the sole plaintiff in this case and there was no class action lawsuit.
“The lawsuit concerned only Epic, with no evidence whatsoever of consumers or other developers whose interests were or are being pursued in separate class action lawsuits,” Apple writes in its statement.
Following the briefs filed by Apple and Epic, the court will set a date to hear the arguments. Apple expects a decision in the summer of 2023 at the earliest, so there is still some time before the legal dispute is settled.
Apple’s full brief on the appeal can be viewed on Scribd (via MacRumors).
