Apple and Epic are asking a US appeals court to review their antitrust ruling

Author: Mike Scarcella

(Reuters) – Apple and “Fortnite” maker Epic Games asked a U.S. appeals court on Wednesday to review an April ruling in an antitrust case that could force Apple to change its App Store payment practices.

Apple and Epic, in separate court filings, challenged the ruling by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals. Lawyers for both companies said the panel should rehear the case or the court should convene “en banc” with an 11-judge panel to reconsider the dispute.

The April three-judge ruling upheld a 2021 California federal court ruling in an Epic lawsuit that accused Apple of unlawfully requiring software developers to pay up to 30% in commissions on consumers’ in-app purchases.

The trial judge found that Apple violated California unfair competition law, but not U.S. antitrust laws. In a new filing, Apple is challenging a nationwide injunction over conduct that Apple described as “pro-competitive and non-antitrust.”

In its lawsuit filed in the Ninth Circuit, Epic argued that its claims against Apple directly implicate the “primary purpose” of U.S. antitrust law to promote competition. Epic also argued that the appeals court failed to conduct a “rigorous” balancing act between the alleged benefits to consumers and the anticompetitive effects of Apple’s practices.

Federal appellate courts often do not grant en banc motions. Last year, the 9th District Court received 646 motions requesting an en banc hearing. During this period, the court accepted 12 applications. In 2021, the court granted en banc review in nine cases.

The U.S. Supreme Court may have the final say on the outcome.

Representatives for Apple and Epic had no immediate comment.

The lower court’s ruling is stayed pending further appeal proceedings.

In the ruling, U.S. District Judge Yvonne Gonzalez Rogers said Apple cannot bar AppStore developers from providing links and buttons that take consumers to payment options outside of Apple’s in-app shopping system.

Gonzalez Rogers did not provide any guidance on how Apple must allow these links or buttons.

Competition authorities in other countries, including: in South Korea, the Netherlands and Japan have taken steps to force Apple to provide in-app payment systems.

The case is Epic Games Inc v. Apple Inc, 9th U.S. Circuit Court of Appeals, No. 21-16506.

(Reporting by Mike Scarcella; Editing by Leigh Jones)