‘No Realistic Prospect’ SCOTUS Would Grant Apple Cert on iOS Injunction, Says Epic
There’s “no realistic prospect” that four U.S. Supreme Court justices would grant Apple cert on the questions it raises in its motion for the 9th U.S. Circuit Court of Appeals to stay the mandate in its decision to affirm the injunction barring Apple from enforcing its anti-steering rules against U.S. iOS app developers (see 2307050021), said Epic Games’ opposition Wednesday (docket 21-16506).
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The issues Apple cites in its motion for a mandate stay were waived and aren’t “certworthy,” said Epic. Because Apple’s forthcoming cert petition “has no realistic chance of success, the only purpose of a stay would be additional delay,” it said. “An injunction that should have taken effect more than a year ago would be delayed again, likely at least for another seven months -- and perhaps much longer. Apple’s motion should therefore be denied.”
Apple’s motion for a stay “has scraped the very bottom of the barrel, and come up empty,” said Epic. The district court entered judgment and an injunction under California's Unfair Competition Law (UCL), it said. Apple appealed, overwhelmingly devoting its argument in the 9th Circuit to a question of California law -- whether the dismissal of Epic’s Sherman Act claims precluded its UCL claims as well, it said. “The panel unanimously held it did not.”
The full 9th Circuit “denied rehearing en banc, with no judge calling for a response or a vote,” said Epic. That ruling, which rests on state law SCOTUS won’t review, “is now final,” it said. “Apple does not disagree.”
In seeking a stay of the mandate, “Apple has no choice but to rely on arguments that are so weak that it previously only mentioned them barely, or not at all,” said Epic. Those arguments provide no basis for a stay because they raise no substantial question, it said. “To the extent Apple preserved any of these arguments,” not a single judge “has sided with it,” it said.
The district court’s injunction, affirmed by the 9th Circuit, applies to Apple’s anti-steering rules, said Epic. Apple requires that in-app purchases of digital goods be made using Apple’s payment processor, which charges developers an exorbitant 30% commission, it said. But users may buy those goods outside the app on other platforms, such as from a website or PC version of the same app, it said. The commission rates on those other platforms, and in turn the ultimate price paid by consumers, will often be lower, it said.
Apple’s anti-steering rules “prohibit iOS developers from informing users about, or directing iPhone users to, those available alternatives,” said Epic. “The only purpose of such a prohibition is to shield Apple from competition (however limited) and deprive consumers of information and direct access to alternatives that can save them money,” it said. The district court properly said the anti-steering rules violate California’s UCL, it said.