Apple says Epic’s arguments against pausing the case are ‘wrong’

Apple has responded to Epic’s opposition to its request to pause lower-court proceedings over App Store commissions while the Supreme Court reviews part of the case. Here’s what that means.

Apple argues Epic’s reasoning is wrong

Last month, the Supreme Court agreed to review whether Apple was properly held in civil contempt for charging a commission on purchases completed outside the U.S. App Store.

This specific dispute stems from a 2021 injunction requiring Apple to let developers direct users to off-App Store purchase options. Although the injunction did not explicitly prohibit commissions on those transactions, Judge Yvonne Gonzalez Rogers later ruled that Apple’s implementation violated the order and held the company in contempt. Apple has been fighting that finding ever since.

As soon as the Supreme Court agreed to review the finding, Apple moved to pause the lower-court proceedings that will consider what commission, if any, it can charge on such purchases.

Apple argues that the Supreme Court’s decision could eliminate the need for those proceedings or significantly reshape them, so it wants the lower court to wait, rather than move forward with work that may later need to be revisited.

Epic sees it differently. As we covered yesterday, the company argues that this request to stay the lower-court proceedings while the Supreme Court reviews the civil contempt finding is “Apple’s third attempt to delay the inevitable: a hearing to evaluate Apple’s proposed fee on steered transactions.”

In its opposition to Apple’s request, the Fortnite maker also said that “[e]ven if the Supreme Court agrees with Apple’s arguments [regarding contempt], there would still be further proceedings on remand, particularly on the question of commission, and those proceedings are likely to look similar, if not the same, regardless of” whether the Supreme Court reviews the contempt ruling.

Now, Apple has responded to Epic’s opposition, repeatedly arguing that its claims rest on incorrect assumptions, mischaracterize the scope of the Supreme Court’s review, and understate the impact that review could have on the lower-court proceedings:

“Having fought to hold Apple in contempt and having defended this Court’s contempt finding on appeal, Epic’s central argument now is that the Supreme Court’s grant of certiorari to decide the contempt question is somehow irrelevant. That is wrong: the only basis for remand proceedings on the commission is this Court’s contempt finding—affirmed by the Ninth Circuit—that Apple violated the original injunction. […]”

And

“Epic’s other arguments fare no better. Epic claims that “the Ninth Circuit and Justice Kagan have already rejected the precise stay Apple is seeking here.” Epic’s Opp. to Stay of Remand Proceedings (“Opp.”), Dkt. 1698, at 5. That is wrong: the Ninth Circuit and Justice Kagan rejected a stay of the mandate—rather than the more limited stay of the proceedings, which Apple requests here—so the prior stay denials rested on factors not relevant here. […]”

And

“Epic’s primary argument is that the Supreme Court’s resolution of the contempt question will have no impact on the proceedings before this Court. Opp. 6-10. As a result, Epic argues, this Court should “proceed with the remand proceedings” right now. Id. at 4. Epic is wrong.

The only basis for any “remand proceedings” is this Court’s civil contempt finding. […]”

And

“Epic argues that the Ninth Circuit offered “two avenues” for remand proceedings, and that “[o]nly the first”—concerning a purgeable contempt sanction—“is potentially implicated by the Supreme Court’s review.” Opp. at 7. Epic again is wrong. In the words of the Ninth Circuit, both avenues are pathways for this Court to “resolve its error,” referring to the contempt sanction, meaning that the only basis for a remand of any kind is the Ninth Circuit’s decision with respect to the contempt finding.”

In essence, Apple’s response to Epic’s opposition doubles down on its original points, while at the same time poking holes in Epic’s reasoning as to why the lower court should deny Apple’s request to pause the case while the Supreme Court reviews the civil contempt finding.

Apple also points out twice that, in its view, the Supreme Court will determine whether “the Ninth Circuit applied the wrong legal standard,” which it says could invalidate the contempt finding or require the appeals court to reconsider it under the correct standard.

Finally, Apple asks that, if Judge Gonzalez Rogers denies the stay, she pause the proceedings anyway so the company can ask the Ninth Circuit or Supreme Court to keep them on hold while the Supreme Court separately reviews the underlying contempt ruling.

You can read Apple’s response below:

Do you think the case should be paused while the Supreme Court reviews the contempt ruling? Let us know in the comments.

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