Apple Inc. and Epic Games Inc. are asking the full Ninth Circuit to revisit decisions made in a high-profile antitrust case centered on Apple’s operation of its App Store.
Both companies on Wednesday filed petitions with the US Court of Appeals for the Ninth Circuit for a full-court review of an April three-judge panel decision. The ruling enjoined Apple from enforcing its in-app payment policy under California’s Unfair Competition Law and ordered Epic to pay counsel fees in the companies’ contract battle.
Epic, maker of the blockbuster Fortnite game, sued Apple in 2020 after the tech giant kicked Fortnite out of the App Store and threatened to end access for all apps built with Epic’s game engine, Unreal.
The Ninth Circuit panel in April mostly sided with Apple in the case, but upheld a lower court’s ruling that, under California’s unfair competition law, Apple must drop its “anti-steering” provision and allow app developers to direct consumers to other companies for payment. It means that Apple must allow competing app stores and payment methods on its system.
In its petition for a rehearing, Apple argued that the Ninth Circuit panel’s affirmation of that injunction warrants a review.
“The panel stated for the first time that a UCL claim is not barred where the parallel antitrust claim fails on evidentiary (as distinguished from legal) grounds,” Apple stated. “That is just wrong.”
Epic wrote in its petition that the panel’s ruling conflicts with Supreme Court and Ninth Circuit precedent, which requires a balancing of pro- and anticompetitive consequences.
“Consistent with the Supreme Court’s direction, this court has often reiterated that the Rule of Reason requires ‘a balancing of the arrangement’s positive and negative effects on competition,’” Epic wrote.
Epic also argued that the majority’s remaining arguments for refusing to conduct a rigorous balancing analysis are not persuasive.
The case is Epic Games Inc. v. Apple Inc., 9th Cir., No. 21-16506, 6/7/23.
