Epic asks U.S. Supreme Court to enforce lower court's App Store order

AppleInsider

Epic Games is asking the United States Supreme Court to uphold a recent ruling made by a lower court, hoping the highest court will unpause an injunction against Apple and force the company's hand with App Store payment systems.

Epic Games "1984" inspired anti-Apple ad

While the majority of legal decisions in the Epic Games vs. Apple lawsuit have gone in Apple's direction, there is one that didn't -- anti-steering rules in the digital storefront. Unsurprisingly, Apple petitioned the Supreme Court to review the 9th U.S. Circuit Court of Appeals' decision.

As a result of that petition, Apple can technically delay any major changes to the App Store. By default, the company now has 90 days before it needs to make any changes, and it could get even longer if SCOTUS decides to hear the case.

Epic Games is not very happy with how this is going, according to a report from Reuters. The company, which develops the popular battle royale game Fortnite, has filed a request with the highest court in the nation to lift the lower court's decision.

SCOTUS has not moved on this particular case as of the time of publication, either granting Apple's appeal or responding to Epic's requests.

Epic's long fight against Apple

Apple's App Store commission has been a hot-button issue for a while now, especially for companies like Epic. Apple's anti-steering rules are designed to limit how third-party developers and companies can direct customers to in-app purchases and subscription payments outside the App Store.

Apple App Store

The original ruling regarding Apple's anti-steering rules was handed down in September 2021, directly related to Epic Games vs Apple. Both companies appealed those decisions, even though Apple won nine of the ten claims.

This all began in 2020 after Epic Games updated Fortnite to allow players to avoid Apple's payment system and pay Epic Games directly. Apple's rules don't allow companies to avoid the first-party payment system when paying through the App Store.

As a result, Apple pulled Fortnite from the App Store, letting Epic Games know if they updated the title again and removed the new payment system option, the game could return. Epic Games refused, filing a lawsuit against Apple the same day they updated the game.

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carnegie

AppleInsider said:

Epic Games is asking the United States Supreme Court to uphold a recent ruling made by a lower court, hoping the highest court will unpause an injunction against Apple and force the company's hand with App Store payment systems.

...

While the majority of legal decisions in the Epic Games vs. Apple lawsuit have gone in Apple's direction, there is one that didn't -- anti-steering rules in the digital storefront. Unsurprisingly, Apple petitioned the Supreme Court to review the 9th U.S. Circuit Court of Appeals' decision.

As a result of that petition, Apple can technically delay any major changes to the App Store. By default, the company now has 90 days before it needs to make any changes, and it could get even longer if SCOTUS decides to hear the case.

Epic Games is not very happy with how this is going, according to a report from Reuters. The company, which develops the popular battle royale game Fortnite, has filed a request with the highest court in the nation to lift the lower court's decision.

SCOTUS has not moved on this particular case as of the time of publication, either granting Apple's appeal or responding to Epic's requests.

...

That is not what this application asks for. In this application Epic is asking the Supreme Court to vacate the stay issued by the Ninth Circuit so that the injunction requiring Apple to change its anti-steering policies would go into effect while the Supreme Court considers the matter - i.e., while the Court decides whether to grant the forthcoming cert petition from Apple and then, possibly, hears the case.

Epic no doubt will ask the Court to let stand the ruling in its favor regarding Apple's anti-steering policies , but that ask will come in the form of a response to a cert petition from Apple which has yet to be filed. It would make no sense for Epic to ask the Court to let stand that ruling now; it would be putting the cart before the horse so to speak. Similarly, Apple would not now ask the Supreme Court to let stand all of the aspects of the Ninth Circuit's decision  which went in its favor. It would only do that in response to Epic filing a cert petition of its own challenging those aspects of the decision.

As I suggested, Apple has not petitioned the Supreme Court to review the Ninth Circuit's decision. It has 90 days from the date when the Ninth Circuit denied panel and en banc rehearings of the case to file such a cert petition. That happened at the end of June, so Apple has about 2 months left to file a cert petition. So does Epic. Apple will likely take almost all of that time before filing its petition. And so long as Apple files such a petition and provides notice to the Ninth Circuit of that filing, the Ninth Circuit's stay (of the injunction requiring Apple to change its anti-steering policies) will automatically be extended until the Supreme Court decides whether to grant Apple's petition. That could take a few months or it could take much longer. So even if the Court ultimately decides not to hear the case - i.e., not to grant Apple's petition - the Ninth Circuit's stay was, for practical purposes, for longer than 90 days.

thrang

Is Fortnite even a big thing anymore? I'm not a gamer, but I haven't heard buzz about it in well more two years...other than the legal battle

ericthehalfbee

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

chasm

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

BiCC

chasm said:

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

EXACTLY.  Why did Apple start a fight with Epic.  Epic created a video game that people liked. Someone or people at Apple need re-evaluation.  Epic was paying the fees.  They didn't skip on the bill and steal a gettaway car. And get into a car chase.

greginprague

BiCC said:

chasm said:

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

EXACTLY.  Why did Apple start a fight with Epic.  Epic created a video game that people liked. Someone or people at Apple need re-evaluation.  Epic was paying the fees.  They didn't skip on the bill and steal a gettaway car. And get into a car chase.

Not sure if you’re being sarcastic or not.  Epic absolutely updated their app with an outside payment system (in violation of TOS) specifically to avoid paying 30% to Apple on the transaction.  Epic claimed that the rate was a criminally monopolistic rate to charge developers.  

FileMakerFeller

greginprague said:

BiCC said:

chasm said:

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

EXACTLY.  Why did Apple start a fight with Epic.  Epic created a video game that people liked. Someone or people at Apple need re-evaluation.  Epic was paying the fees.  They didn't skip on the bill and steal a gettaway car. And get into a car chase.

Not sure if you’re being sarcastic or not.  Epic absolutely updated their app with an outside payment system (in violation of TOS) specifically to avoid paying 30% to Apple on the transaction.  Epic claimed that the rate was a criminally monopolistic rate to charge developers.  

And had to repay the ~US$100 million that they collected from this practice.

Nikon8

If they allow this, I think EPIC should open up as well.  Let others make their own skins and sell it.  it is fair. 

williamlondon

carnegie said:

AppleInsider said:

Epic Games is asking the United States Supreme Court to uphold a recent ruling made by a lower court, hoping the highest court will unpause an injunction against Apple and force the company's hand with App Store payment systems.

...

While the majority of legal decisions in the Epic Games vs. Apple lawsuit have gone in Apple's direction, there is one that didn't -- anti-steering rules in the digital storefront. Unsurprisingly, Apple petitioned the Supreme Court to review the 9th U.S. Circuit Court of Appeals' decision.

As a result of that petition, Apple can technically delay any major changes to the App Store. By default, the company now has 90 days before it needs to make any changes, and it could get even longer if SCOTUS decides to hear the case.

Epic Games is not very happy with how this is going, according to a report from Reuters. The company, which develops the popular battle royale game Fortnite, has filed a request with the highest court in the nation to lift the lower court's decision.

SCOTUS has not moved on this particular case as of the time of publication, either granting Apple's appeal or responding to Epic's requests.

...

That is not what this application asks for. In this application Epic is asking the Supreme Court to vacate the stay issued by the Ninth Circuit so that the injunction requiring Apple to change its anti-steering policies would go into effect while the Supreme Court considers the matter - i.e., while the Court decides whether to grant the forthcoming cert petition from Apple and then, possibly, hears the case.

Epic no doubt will ask the Court to let stand the ruling in its favor regarding Apple's anti-steering policies , but that ask will come in the form of a response to a cert petition from Apple which has yet to be filed. It would make no sense for Epic to ask the Court to let stand that ruling now; it would be putting the cart before the horse so to speak. Similarly, Apple would not now ask the Supreme Court to let stand all of the aspects of the Ninth Circuit's decision  which went in its favor. It would only do that in response to Epic filing a cert petition of its own challenging those aspects of the decision.

As I suggested, Apple has not petitioned the Supreme Court to review the Ninth Circuit's decision. It has 90 days from the date when the Ninth Circuit denied panel and en banc rehearings of the case to file such a cert petition. That happened at the end of June, so Apple has about 2 months left to file a cert petition. So does Epic. Apple will likely take almost all of that time before filing its petition. And so long as Apple files such a petition and provides notice to the Ninth Circuit of that filing, the Ninth Circuit's stay (of the injunction requiring Apple to change its anti-steering policies) will automatically be extended until the Supreme Court decides whether to grant Apple's petition. That could take a few months or it could take much longer. So even if the Court ultimately decides not to hear the case - i.e., not to grant Apple's petition - the Ninth Circuit's stay was, for practical purposes, for longer than 90 days.

Hey, thanks for this info, more please like this.

davidw

chasm said:

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

Or Apple can implement sometime like what Google has. A method where developers can give their customers a choice of billing system and still allow Apple to easily collect their commission, that would be discounted if the customer chooses the developer method. I'm sure Apple already has such a billing method ready, in case the courts finally  rule their "anti-steering" policy illegal. Giving the customer a choice of payment systems can not be construed as "anti-steering" or "steering" on part of Apple or the developers.  

https://support.google.com/googleplay/android-developer/answer/12570971?hl=en

https://techcrunch.com/2022/11/10/google-play-to-pilot-third-party-billing-in-new-markets-including-u-s-bumble-joins-spotify-as-early-tester/

gatorguy

davidw said:

chasm said:

ericthehalfbee said:

Funny thing is if Apple loses it only helps other developers but not Epic since they’re banned from
The App Store.

That’s correct. Under no scenario would Apple have to allow Epic back in.

Moreover, numerous courts all over the world have ruled that Apple is 100 percent entitled to charge a fee for creating, running, and administering the App Store, and that such a fee would be applicable **even if** Apple itself or some other authority made them accept payments from alternative providers.

Mind you, as noted previously, 85 percent of developers don’t pay any fee at all, and small developers who do less that $1million/year don’t pay 30 percent, so there’s little chance at this stage that any court is going to find the fees excessive.

Or Apple can implement sometime like what Google has. A method where developers can give their customers a choice of billing system and still allow Apple to easily collect their commission, that would be discounted if the customer chooses the developer method. I'm sure Apple already has such a billing method ready, in case the courts finally  rule their "anti-steering" policy illegal. Giving the customer a choice of payment systems can not be construed as "anti-steering" or "steering" on part of Apple or the developers.  

https://support.google.com/googleplay/android-developer/answer/12570971?hl=en

https://techcrunch.com/2022/11/10/google-play-to-pilot-third-party-billing-in-new-markets-including-u-s-bumble-joins-spotify-as-early-tester/

Well-stated.

carnegie

Justice Kagan today requested a response from Apple to Epic's application to vacate the stay and gave Apple until Friday at 5 PM ET to file such response. I suspect, after that response is received, she'll refer the matter to the full Supreme Court to decide.

gatorguy

carnegie said:

Justice Kagan today requested a response from Apple to Epic's application to vacate the stay and gave Apple until Friday at 5 PM ET to file such response. I suspect, after that response is received, she'll refer the matter to the full Supreme Court to decide.

I understand that in some circumstances a single Justice can issue a stay, subject to review. Would it also be true that a single Justice can vacate one, or does that require a gang of four?

carnegie

gatorguy said:

carnegie said:

Justice Kagan today requested a response from Apple to Epic's application to vacate the stay and gave Apple until Friday at 5 PM ET to file such response. I suspect, after that response is received, she'll refer the matter to the full Supreme Court to decide.

I understand that in some circumstances a single Justice can issue a stay, subject to review. Would it also be true that a single Justice can vacate one, or does that require a gang of four?

Yes, a single Justice can decide an application like this - either granting or denying it.

An application like this - asking, e.g., to vacate a stay -  has to first be submitted to the appropriate Justice for a given circuit. For the Ninth Circuit Justice Kagan is the appropriate Justice. If that Justice denies the application, the applicant can file another application with any Justice they want. If they're denied again, they can file with another Justice and so on until all nine Justices have been applied to. To avoid that, by practice, the second Justice receiving an application refers it to the entire Court to decide.

The first Justice receiving an application can also refer it to the entire Court to decide. Sometimes they'll do that and sometimes they'll decide the application themselves.

gatorguy

carnegie said:

gatorguy said:

carnegie said:

Justice Kagan today requested a response from Apple to Epic's application to vacate the stay and gave Apple until Friday at 5 PM ET to file such response. I suspect, after that response is received, she'll refer the matter to the full Supreme Court to decide.

I understand that in some circumstances a single Justice can issue a stay, subject to review. Would it also be true that a single Justice can vacate one, or does that require a gang of four?

Yes, a single Justice can decide an application like this - either granting or denying it.

An application like this - asking, e.g., to vacate a stay -  has to first be submitted to the appropriate Justice for a given circuit. For the Ninth Circuit Justice Kagan is the appropriate Justice. If that Justice denies the application, the applicant can file another application with any Justice they want. If they're denied again, they can file with another Justice and so on until all nine Justices have been applied to. To avoid that, by practice, the second Justice receiving an application refers it to the entire Court to decide.

The first Justice receiving an application can also refer it to the entire Court to decide. Sometimes they'll do that and sometimes they'll decide the application themselves.

Thanks for validating what I thought.

carnegie

On Friday Apple filed its response to Epic's application asking Justice Kagan to vacate the Ninth Circuit's stay.

carnegie

Justice Kagan denied Epic's application today. Epic is now free to make the same application - i.e. asking to have the Ninth Circuit's stay vacated - to any of the other Justices.