Apple Denied Stay of Injunction Pending Appeal in Epic Games’ Antitrust Suit

On Tuesday, Judge Yvonne Gonzalez Rogers denied Apple Inc.’s bid to stay an injunction requiring it to eliminate anti-steering provisions for the App Store. After the matter was fully briefed and with the benefit of oral argument, the court ruled that Apple failed to satisfy the applicable four-part test.

In early October, Apple requested that the court suspend the injunction pending resolution of it and Epic Games Inc.’s appeals to the Ninth Circuit after the trial court ruled that Epic fell short of proving Apple a monopolist in the market for iOS app distribution. Epic opposed.

This week’s opinion explains that in particular, Apple sought to pause the portion of the injunction prohibiting third-party app developers from including metabuttons, external links, or other calls to action that direct customers to purchase mechanisms in their apps.

“In short, Apple’s motion is based on a selective reading of this Court’s findings and ignores all of the findings which supported the injunction, namely incipient antitrust conduct including supercompetitive commission rates resulting in extraordinarily high operating margins and which have not been correlated to the value of its intellectual property,” the opinion said, concluding that the motion is “fundamentally flawed.”

In addition, the court found that Apple’s irreparable injury arguments were “exaggerated,” and without evidentiary support. Judge Gonzalez Rogers also wrote that she could foresee numerous ways for Apple to comply with the injunction, though she refrained from making a prescription, harkening back to a previous idiom: the court is not here to micromanage. 

Finally, because the court gave Apple 90 days to comply with the injunction and about 30 of those days remain, Judge Gonzalez Rogers declined to give Apple an additional 10 days to file a motion to stay with 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.