After a few weeks of radio silence within the Epic Video games, Inc. v. Apple Inc. case, Apple’s legal professionals are actually again with a vengeance within the Ninth Circuit. And this time, they’re not simply pushing again on the unique consequence, but in addition asking the Ninth Circuit to assign the case to a distinct choose whether it is despatched again to the district court docket.
As reported by Law360, in a brand new appeals temporary filed Monday, Apple challenges the district court docket order that bars it from charging any fee on in-app purchases made exterior of its ecosystem.
A fast refresher
You’re most likely acquainted with the timeline: in 2021, Epic received an injunction that prohibited Apple from blocking builders from steering customers to various fee strategies. Then, in April, a new ruling discovered Apple in civil contempt for allegedly undermining the unique injunction.
By then, U.S. District Decide Yvonne Gonzalez Rogers had had sufficient, and issued a sweeping new injunction. Among the many new phrases, Apple may not take any lower from purchases made exterior its personal in-app fee system, nor may it prohibit how and the place builders hyperlink out to third-party fee platforms.
What’s new?
In Monday’s submitting, Apple mentioned the up to date order successfully rewrites the foundations and punishes it for conduct that isn’t unlawful beneath California’s Unfair Competitors Legislation (UCL). It additionally argues that civil contempt powers are presupposed to implement current orders, not impose harsher ones after the very fact:
“The district court docket’s new prohibition towards any fee on gross sales facilitated by Apple’s personal platform has no foundation within the authentic injunction, is essentially unfair, violates the UCL, and quantities to a taking in violation of the U.S. Structure. Certainly, the court docket’s everlasting imposition of a royalty of zero for an enormous class of transactions can solely be understood as a punishment. However civil contempt might not be used to punish. The brand new injunction’s amped-up provisions barring Apple’s skill to manage steering are equally flawed.”
Apple additionally pushed again on the concept its 27% fee for purchases accomplished by way of exterior hyperlinks was out of line, and argued that even when that quantity was deemed “too excessive”, the answer shouldn’t be to get rid of commissions altogether:
“There’s a huge gulf between discovering that Apple’s 27% headline fee was too excessive and declaring that Apple is longer allowed to cost any fee in any respect. Apple appreciates, and regrets, that the district court docket discovered that it didn’t adjust to the unique injunction. However the district court docket’s answer to {that a} penal, new injunction that’s inconsistent by itself phrases with the UCL can’t stand.”
In sum, Apple’s requests within the new enchantment embody:
- Vacating the brand new injunction that bans all commissions on exterior purchases
- Putting down the 5 further restrictions on steering (equivalent to button design, disclosure templates, and the place exterior hyperlinks can seem within the app)
- Reversing the civil contempt discovering
- Terminating all injunctive reduction primarily based on new California precedent (an argument the choose has rejected previously)
- Reassigning the case to a brand new choose if the case goes again to the district court docket
The final level is critical. Apple says that there’s grounds for reassignment when “the unique choose would fairly be anticipated upon remand to have substantial issue in placing out of his or her thoughts beforehand expressed views or findings” or when “reassignment is advisable to protect the looks of justice,” and claims “Each circumstances are current right here.”
In a press release to Law360, an Apple spokesperson mentioned:
“Apple has spent a long time incomes customers’ belief within the safety, privateness, and revolutionary know-how that the App Retailer supplies, and we’re deeply involved that this injunction now prevents Apple from persevering with to guard our customers in necessary methods. (…) We’re interesting this order to make sure that the App Retailer stays an unbelievable alternative for builders and a secure and trusted expertise for everybody.”
Epic, in the meantime, declined to remark.
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