Update, 8:21 p.m. ET: After the court granted Apple’s motion to stay the decision, Epic filed a motion asking the Ninth Circuit to reconsider that order, and another asking it to deny Apple’s request for a stay altogether. Find the new details below.
As expected, Apple has filed a motion signaling that it plans to ask the Supreme Court to review its latest setback in the Epic Games case. Here are the details.
A bit of context
A few days ago, the U.S. Court of Appeals for the Ninth Circuit unanimously denied Apple’s request to revisit a decision that favored Epic Games in its longstanding battle with the Fortnite developer.
The decision in question, Apple argued, created confusion around what it would actually be allowed to charge for purchases made outside the App Store.
As we covered last week:
“In a nutshell, Apple pointed to two possible interpretations: one limiting it to charging only the direct costs of supporting external purchases, while the other would allow it to collect a broader commission tied to the value of the App Store and its ecosystem.”
With that in mind, Apple pursued a two-pronged strategy in its appeal. It asked for a rehearing before the same three-judge panel that originally heard the case, and also sought an en banc review by the full Ninth Circuit.
Both requests were denied, effectively leaving Apple with little recourse short of taking the case to the Supreme Court.
Now, Apple has signaled that it will do just that.
Apple’s new request
In a new filing submitted to the court (via TechCrunch), Apple signals that it will ask the U.S. Supreme Court to review key aspects of the ruling that found it in contempt over its App Store policies.
For context, back in 2021, a court ordered Apple to allow developers to link users to external payment options outside the App Store. Years later, the court found Apple in breach, ruling that its 27% fee undermined that order, and required changes that apply to all U.S. developers, not just Epic Games.
In the new filing, Apple argues that the scope of the remedy imposed on the App Store goes beyond what courts are allowed to enforce, since the injunction broadened the scope to all developers, rather than sticking to just Epic Games.
Additionally, Apple is also requesting a stay of the ruling, in an attempt to pause any required changes to its App Store practices while the Supreme Court decides whether to take up the case yet again, after declining to hear Apple’s prior appeal in the same dispute in January 2024.
In a statement provided to TechCrunch, “a spokesperson for Epic Games, Natalie Munoz, called Apple’s motion to stay ‘another delay tactic to prevent the court from establishing significant and permanent bounds on Apple’s ability to charge junk fees on third-party payments,’ adding the following:
“Courts have time and time again found this to be illegal. […] Epic has heard this directly from many developers in our efforts to offer Web Shops and similar features to them in competition with Apple. As a result of Apple’s tactics, only a few brave developers including Spotify, Kindle, and Patreon, have been willing to take advantage of this right and bring benefits to consumers. We will keep standing up to Apple’s attempts to undermine competition.”
To read Apple’s motion, follow this link.
Update, 8:21 p.m. ET: Following Apple’s request, the Ninth Circuit has granted the company’s motion to stay the mandate while it prepares its appeal to the U.S. Supreme Court.
Epic, in turn, filed its own motion asking the court to reconsider its decision to grant Apple’s motion for stay, arguing that the ruling was issued prematurely, before it had a chance to respond under federal appellate rules.
Additionally, Epic filed its actual response opposing Apple’s original motion to stay the order. In it, the company reaffirms its stance that “Apple’s effort to stay this Court’s mandate is about nothing other than delay,” and argues that “staying the mandate (…) simply delays relief for consumers and allows Apple to continue reaping supracompetitive profits from IAP.”
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