Apple Cross-Appeals in Epic Games’ Antitrust Suit, Asks for Stay Pending Appeal

Apple Inc. filed a notice of appeal in the antitrust case brought by Epic Games last Thursday, seeking relief from the court’s permanent ban of its App Store’s anti-steering provisions, rules restricting communications between app developers and customers. The defendant also asked Judge Gonzalez Rogers to stay enforcement of the injunction until the appeals filed by both Epic and Apple have been resolved.

Apple opened its motion by stating that it “understands and respects the Court’s concerns regarding communications between developers and consumers.” The company noted that it is taking remedial steps to increase the flow of information from developers to customers, which they argue would render its appeal unnecessary. Apple then recounted aspects of the court’s landmark decision rejecting nine of Epic’s ten claims and the plaintiff’s request for a broad injunction “that would have transformed the App Store’s business model.” 

As for the anti-steering provisions, Apple argued that the court reached the conclusion that they violate California’s Unfair Competition Law (UCL) on dubious bases. The company pointed out that Epic spent little time on the claim at trial and presented no evidence that it was harmed by those provisions. 

“Epic’s theory of liability under the UCL cannot be reconciled with the findings and conclusions the Court made elsewhere in its opinion, particularly in recognizing the procompetitive justifications for Apple’s IAP requirement,” Apple asserted. As such, the company touted the likelihood of success on the merits of its appeal.  

Among other arguments, the tech giant also claimed irreparable harm if forced to eliminate its anti-steering provisions. It said it would have to permit developers to engage in conduct that would disrupt the App Store’s current business model. Should the court decline its request, Apple asked that Judge Gonzalez Rogers temporarily stay enforcement of the injunction while it seeks a stay from the Ninth Circuit. 

Faegre Drinker Biddle & Reath LLP and Cravath, Swaine & Moore are counsel for Epic Games, and Gibson, Dunn & Crutcher LLP is counsel for Apple.