Epic accuses Apple of ‘delaying’ key U.S. appeals court hearing

Fortnite game download on Android operating system is seen in front of Apple logo in this illustration taken, May 2, 2021. REUTERS/Dado Ruvic/Illustration

(Reuters) – Video game maker Epic Games Inc on Wednesday accused Apple Inc of “needlessly delaying” a pivotal hearing in an antitrust clash in the 9th U.S. Circuit Court of Appeals over key App Store policies.

The San Francisco-based U.S. appeals court said it was considering setting an argument hearing between October and December in Epic’s effort to revive its case against Apple, and the court, as a matter of routine, asked the lawyers representing the two companies to reveal any date conflicts.

Apple’s chief appellate lawyer, Mark Perry of Weil, Gotshal & Manges, told the court this week that October could work but wasn’t ideal, since he’ll be in final preparation mode for a major copyright trial that will tie him up in November and December. Perry is on the team defending software support company Rimini Street Inc against claims Oracle Corp filed in Nevada federal court.

On Wednesday, lawyers for Epic at Cravath, Swaine & Moore cried foul over Perry’s schedule. October didn’t pose an actual conflict, Cravath partner and former U.S. federal judge Katherine Forrest told the 9th Circuit. “This is a scheduling preference, not an ‘unavoidable conflict’ with the October schedule,” Forrest wrote.

Forrest and an Epic spokesperson didn’t respond to a message seeking comment. Apple and its lawyers, who also include a team from Gibson, Dunn & Crutcher, also didn’t immediately comment.

A California federal judge last year after a trial ruled against Epic’s claims that Apple’s payment rules for apps were anticompetitive. Apple is appealing part of the court’s order that said the company violated California’s state unfair competition law.

Epic has asked the 9th Circuit to deem the case a hearing “priority.” The Cary, North Carolina-based company, which makes the popular Fortnite game, said the case “implicates important and time-sensitive issues” under federal antitrust law. Epic filed its opening brief in January, after receiving a one-month extension.

The 9th Circuit asks lawyers for input before setting argument dates “to minimize the need to remove a case from a calendar after judges invest time in it.” The court advises lawyers: “Please do not submit scheduling preferences, only actual conflicts.”

The appeals court on Thursday did not immediately set an argument date.

The case is Epic Games Inc v Apple Inc, 9th U.S. Circuit Court of Appeals, No. 21-16506.

For Epic: Katherine Forrest of Cravath, Swaine & Moore

For Apple: Mark Perry of Weil, Gotshal & Manges and lawyers from Gibson, Dunn & Crutcher

Read more:

Apple urges court to reject Epic’s appeal in App Store antitrust case

Dozens of U.S. states say Apple stifles competition; back ‘Fortnite’ maker

Apple wins last-minute reprieve from App Store changes while ‘Fortnite’ appeal plays out

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