Apple and Epic Games, the developer of Fortnite, have both filed requests with a US appeals court to reconsider an April ruling on a high-profile antitrust case. The case has the potential to force Apple to change its payment practices within its App Store. The separate court filings by Apple and Epic Games argue that the three-judge panel of the San Francisco-based 9th US Circuit Court of Appeals should either rehear the case or that an 11-judge panel (“en banc”) should convene to consider the dispute. The panel’s April ruling upheld a 2021 order in the California federal court in Epic’s lawsuit against Apple, which accused the tech giant of unlawfully requiring software developers to pay commissions of up to 30% on consumers’ in-app purchases.
Regarding the April ruling, Apple’s new filing now challenges a nationwide injunction over conduct it claims was “procompetitive and does not violate the antitrust laws.” Meanwhile, Epic’s filing argues that its claims against Apple directly implicate the “core purpose” of US antitrust law: fostering competition. Epic also argues that the appeals court did not “rigorously” balance asserted consumer benefits with the anticompetitive effects of Apple’s practices.
While federal appeals courts do not typically grant en banc requests, last year, the 9th Circuit received 646 petitions requesting en banc rehearings, of which the court granted only 12 requests. In 2021, the court granted en banc review in nine cases. However, the US Supreme Court could ultimately have the final say on the outcome. Representatives for both Apple and Epic have yet to offer immediate comment, while the lower court ruling will remain on hold until the appellate process is complete.
The ruling by US District Judge Yvonne Gonzalez Rogers stated that Apple could not prohibit App Store developers from presenting links and buttons that direct consumers to payment options outside of Apple’s in-app purchase system. However, the judge did not provide specific direction on how Apple must allow those links or buttons.
Other competition authorities in several countries, including South Korea, the Netherlands, and Japan, have already taken steps to force Apple to open up access to its in-app payment systems, adding further pressure on the tech giant.
© Thomson Reuters 2023
