Slew of Amicus Briefs Hit Docket in Epic Games-Apple Antitrust Appeal

Late last week, multiple parties filed friend-of-the-court briefs in the appellate showdown between the two companies over Apple’s app store distribution and pricing practices. Thirty-five states, the American Antitrust Institute, more than three dozen law, economics, and business professors, Public Citizen, a non-profit consumer advocacy organization, and several others amici supported Epic Games, while the federal government offered no opinion on the merits of the parties’ claims, but conveyed its interest as ensuring the correct interpretation of the nation’s antitrust laws.

The filings come after the submission of Epic Games’ opening brief and before Apple’s, which is due February 22. 

For their part, the state amici, embroiled in their own antitrust fights with Facebook and Google, reinforced two arguments made by Epic in favor of reversal. First, they said the court erred in finding that Section 1 of the Sherman Act did not apply to the “unilateral” developer agreement Epic signed in order to offer its popular video game Fortnite and other games on Apple’s App Store to iOS users. 

“The district court’s holding blows a hole through Section 1; paradoxically, firms with enough market power to unilaterally impose contracts would be protected from antitrust scrutiny—precisely the firms whose activities give the most cause for antitrust concern,” the brief said.

The states further contended that the trial court misapplied the rule of reason test by failing to weigh the anticompetitive and purported procompetitive effects of Apple’s conduct. As a result, the brief says that the court was unable to determine whether the overall challenged conduct posed an undue restraint on trade in violation of Section 1.

The federal government, represented by the U.S. Department of Justice’s Antitrust Division, made similar arguments about the developer agreement and the court’s rule of reason assessment. The amicus brief also contended that the court’s Section 2 monopoly analysis was flawed for the dual reasons that it improperly evaluated pricing evidence and “erroneously equated the Section 1 and 2 analyses.” 

The federal government cautioned that if uncorrected, errors in the district court’s holdings “could significantly harm antitrust enforcement.”

As the firms have throughout the dispute, Faegre Drinker Biddle & Reath LLP and Cravath, Swaine & Moore represent Epic Games while Gibson, Dunn & Crutcher LLP represents Apple.