Epic Lost Trial Due to Flawed Argument, Not Legal Error, Apple Says in Appeals Filing

Apple's legal battle with Epic Games is continuing on, and today, the Cupertino company filed an opening brief with the United States Court of Appeals for the Ninth Circuit. Both Apple and ‌Epic Games‌ opted to appeal the original ruling in the Epic Games v. Apple case as neither company was satisfied with the outcome. Epic lost, while Apple was subject to App Store changes that are on hold pending the outcome of the appeal.

app store blue banner epic 1
Following Epic's initial opening brief in January, Apple submitted its latest filing to the appeals court this afternoon. In the brief, Apple argues that ‌Epic Games‌ lost the case not because of legal error, but because of its "unprecedented" and "unfounded" accusations of anticompetitive conduct. Apple quotes several passages from the initial ruling that point out Epic's failings.

Epic built its case on witnesses who "lack[ed] credibility" and were "unreliable," whose testimony was "wholly lacking in an evidentiary basis," and who were "willing to stretch the truth in support of [Epic's] desired outcome." At trial, its theories were revealed to be "artificial," "misconceived," and "litigation driven." At every turn, Epic "failed to demonstrate," "failed to convince," "failed to produce," "failed to present," "failed to show," "failed to persuade," and "failed to prove" the facts of its case.

Apple argues that Epic is using the appeal to try to "change the narrative" because it can show no error in the district court's original ruling. To win its appeal, Epic needs to prove without a doubt that the first court's findings were erroneous, and Apple does not believe that's going to happen.

According to Apple, Epic made far-reaching claims at the edges of antitrust law that were unsuccessful, and there is no basis for the initial ruling to be overturned on appeal. Apple also claims that Epic lacks standing to make further arguments about the App Store because it is no longer an iOS developer, as the ‌Epic Games‌ developer account has been terminated.

Epic had the burden to prove, among other things, that the challenged limitations were unreasonable restraints of trade under a framework the parties agreed on before trial began. After a 16-day bench trial, the district court found that Epic had failed to carry its burden of proof on every one of its antitrust claims. That should not surprise: Throughout the history of the App Store, it is undisputed that prices have only gone down, while output has exploded. Those are the hallmarks of competition, not monopolization. To reverse, this Court would have to depart from settled law and ignore the district court's detailed findings of fact.

Several state attorneys general joined together to file an amicus brief to support ‌Epic Games‌, and Apple claims this was done to "make it easier for them to win antitrust lawsuits." Microsoft also supported ‌Epic Games‌, and according to Apple, Microsoft is simply "pursuing a self-interested business strategy of distinguishing itself from other platforms even while making 'hundreds of millions of dollars' from its partnership with Epic."

The original ruling determined that Apple's anti-steering provisions preventing developers from linking to outside payment methods were unfair under the California Unfair Competition Law, leading the judge to order Apple to make changes to the ‌App Store‌ to allow developers to use outside payment methods. Apple's filing addresses this aspect of the appeal, with Apple claiming that the initial court made an error in the ruling.

"The UCL injunction cannot stand," Apple writes. Apple's main claim is that because it was not found to be engaging in anticompetitive behavior, the ‌App Store‌ rules are also not unfair under the California law, which the appeals court has upheld before. Apple also says that the district court does not have the authority to levy such an injunction.

The injunction exceeds the district court’s authority. Epic failed to prove irreparable injury to itself. Moreover, this is not a class action, and any injunctive relief must be limited to Epic as a matter of both state and federal law.

Apple says that its own cross-appeal focuses on purely legal issues, unlike Epic's appeal, which is asking the court to second guess factual findings from the original trial and change the law. Apple's full opening brief can be read over on Scribd for those interested.

Following Apple's first appeals filing, amicus briefs in support of Apple will be submitted in the near future. From there, additional briefs will be submitted by Apple and Epic before the court will set a date to hear arguments. Given the timeline, Apple expects a decision to come by summer 2023 at the earliest.

Apple has made it clear that it has no intention of considering reinstating the ‌Epic Games‌ developer account until the legal battle has been settled, so Fortnite will not be returning to the ‌App Store‌ anytime soon.

Top Rated Comments

MrTangent Avatar
14 weeks ago
It’s gonna be a fortnight until this is resolved!
Score: 15 Votes (Like | Disagree)
cmaier Avatar
14 weeks ago

Epic has their own servers for the gameplay though? App store just distributes the game.

If apple hosts the gameplay servers then a percentage would be reasonable.
”App Store just distributes the game.”

LOL.

Apple didn’t design all of the hardware that runs the game? Apple didn’t develop the SDKs? Apple didn’t provide a customer base that actually trusts the ecosystem enough to be willing to spend money on apps (unlike Android users)?

Your argument is ridiculous.
Score: 13 Votes (Like | Disagree)
MauiPa Avatar
14 weeks ago

"Everyone's wrong, but me!"

-Apple
Can’t fault em for being right
Score: 11 Votes (Like | Disagree)
goobot Avatar
14 weeks ago

There is competition within the store, no doubt, but there is no competition among store operators as there are no other App Stores (legally anyways) that support iPhone/iPad apps. The argument about competition or lack thereof rests on the defitinion on the relevant geographic market.
Unless Apple has an overwhelming control of a market (don’t think they do anywhere) then the stores are competing on different platforms. This is no different than if I wanted to go to a sports arena and then I have to pay for all their overpriced amenities which is a monopoly within said arena.
Score: 11 Votes (Like | Disagree)
bb9 Avatar
14 weeks ago
Can I live in a rental property but do not pay rent to the landlord?
Score: 11 Votes (Like | Disagree)
Kierkegaarden Avatar
14 weeks ago

Come on, settle your stuff and bring back Fortnite.
Their developer account was terminated, so I don’t see it coming back. It was a bad gamble on their part.
Score: 8 Votes (Like | Disagree)

Related Stories

fortnite apple featured

Epic Games Pays Apple $6 Million as Ordered by Court

Monday September 13, 2021 3:31 pm PDT by
Epic Games today paid Apple $6,000,000 in royalties, Epic Games CEO Tim Sweeney said on Twitter. As part of the ruling in the ongoing Epic v. Apple legal battle, Epic was last week ordered by the court to pay 30 percent of the revenue that it collected from the Fortnite app using its illicit direct payment option. Back at the start of the dispute between Epic and Apple, Epic added a direct...
fortnite apple featured

Apple Seeks Early Motion to Reject Epic's Claim It's Being Denied iOS Access

Wednesday May 19, 2021 4:03 am PDT by
As part of the Apple vs. Epic Games legal battle, Apple has filed a motion asking for a judge ruling on one of the ten claims that Epic Games had made against it. Specifically, Apple is seeking a partial judgment on the claim that iOS is an "essential facility" and denies Epic's claim that it has been unlawfully barred from accessing it through the App Store. The claim, specified in court...
fortnite apple featured

Epic's Case Against Apple in Australia Might Be Over

Friday April 9, 2021 12:21 pm PDT by
Epic Games and Apple are involved in a highly public lawsuit in the United States, but Epic has also sued Apple in other countries, including Australia, in an attempt to boost its chances of getting a favorable ruling. Things aren't quite going Epic's way, however, as the justice overseeing the case today decided that he's going to let the two companies battle it out in the United States. ...
fortnite apple logo 2

Epic Games Began Planning Antitrust Lawsuit Against Apple Two Years Ago With 'Project Liberty'

Thursday April 8, 2021 12:01 am PDT by
Ahead of its upcoming bench trial against Epic Games, Apple today filed 500 pages of documents covering findings of fact and conclusions of law, which basically summarizes the information exchanged between Apple and Epic, presents the relevant facts to the judge, and argues for the logical conclusions that should be drawn when law is applied to the case. Apple sticks to many of the talking...
app store blue banner epic 1

Epic Games vs. Apple Judgment Allows App Store Developers to Link to Alternative Payment Methods

Friday September 10, 2021 8:43 am PDT by
A decision was reached today in the high-profile Epic Games v. Apple trial, with U.S. District Judge Yvonne Gonzalez Rogers ruling that Apple's anti-steering conduct is anti-competitive, and ruling in favor of Apple on all other counts. In a 185-page ruling, Judge Rogers said "the Court cannot ultimately conclude that Apple is a monopolist under either federal or state antitrust laws," but...
app store blue banner epic 1

Epic Games CEO Renews Attack on Apple and Calls for Single, Universal App Store

Tuesday November 16, 2021 3:31 am PST by
Epic Games CEO Tim Sweeney has today renewed his attack on Apple and called for a single, universal app store that works across all platforms (via Bloomberg). Last year, Epic's popular game "Fortnite" became the subject of heated litigation with Apple and Google over the rate of commission on in-app purchases. After Epic broke App Store rules by implementing a direct payment option, the game ...
fortnite apple logo 2

Epic Games Appeals Ruling in Apple Lawsuit, Claims Court Made Errors

Thursday January 20, 2022 10:29 am PST by
Epic Games today kicked off its appeal of the judge's decision in the Epic v. Apple lawsuit, filing an opening brief with the United States Court of Appeals for the Ninth Circuit. Both Apple and Epic Games have decided to appeal the original ruling as neither company was satisfied with the outcome. Epic Games wanted the court to force Apple to support third-party App Stores, which did not...
fortnite apple featured

Apple Won't Allow Fortnite Back in the App Store Until Legal Battle Ends Due to Epic's 'Duplicitous Conduct'

Wednesday September 22, 2021 9:49 am PDT by
Apple has no plans to allow Fortnite to return to the App Store in the near future, Apple's lawyers told Epic's lawyers this week. Further, Apple does not plan to consider requests for the reinstatement of the Epic Games developer account until the court's judgment is "final and nonappealable," a process that could span years. Apple provided this information to Epic Games after Epic CEO Tim...

Popular Stories

macbook air m2

Exclusive: Apple Plans to Launch MacBook Air With M2 Chip on July 15

Wednesday June 29, 2022 5:23 pm PDT by
The redesigned MacBook Air with the all-new M2 Apple silicon chip will be available for customers starting Friday, July 15, MacRumors has learned from a retail source. The new MacBook Air was announced and previewed during WWDC earlier this month, with Apple stating availability will begin in July. The MacBook Air features a redesigned body that is thinner and lighter than the previous...
Mac Studio IO

Apple Begins Selling Refurbished Mac Studio Models

Thursday June 30, 2022 7:42 pm PDT by
Apple today began selling refurbished Mac Studio models for the first time in the United States, Canada, and select European countries, such as Belgium, Germany, Ireland, Spain, Switzerland, the Netherlands, and the United Kingdom. In the United States, two refurbished Mac Studio configurations are currently available, including one with the M1 Max chip (10-core CPU and 24-core GPU) for...
top stories 2jul2022

Top Stories: M2 MacBook Air Release Date, New HomePod Rumor, and More

Saturday July 2, 2022 6:00 am PDT by
The M2 MacBook Pro has started making its way into customers' hands and we're learning more about how it performs in a variety of situations, but all eyes are really on the upcoming M2 MacBook Air which has seen a complete redesign and should be arriving in a couple of weeks. Other top stories this week included a host of product rumors including additional M2 and even M3 Macs, an updated...
original iphone 2007

15 Years Ago Today, the iPhone Went On Sale

Wednesday June 29, 2022 4:43 am PDT by
Fifteen years ago to this day, the iPhone, the revolutionary device presented to the world by the late Steve Jobs, officially went on sale. The first iPhone was announced by Steve Jobs on January 9, 2007, and went on sale on June 29, 2007. "An iPod, a phone, an internet mobile communicator... these are not three separate devices," Jobs famously said. "Today, Apple is going to reinvent the...
rootbug

Major macOS High Sierra Bug Allows Full Admin Access Without Password - How to Fix [Updated]

Tuesday November 28, 2017 12:33 pm PST by
There appears to be a serious bug in macOS High Sierra that enables the root superuser on a Mac with a blank password and no security check. The bug, discovered by developer Lemi Ergin, lets anyone log into an admin account using the username "root" with no password. This works when attempting to access an administrator's account on an unlocked Mac, and it also provides access at the login...