Tuesday, October 3, 2023

Epic Anti-Steering Stay and Supreme Court Petition

Richard Lawler:

Apple was granted a motion putting a hold on the appeals court ruling that would push the company to undo its “anti-steering” rules and let outside developers link to third-party payment mechanisms. The mandate is stayed for 90 days so Apple can file its request that the Supreme Court take up the case.


In their request to block the stay, Epic’s lawyers argued Apple’s claims “have no prospect of Supreme Court review” and that “Apple has no choice but to rely on arguments that are so weak that it previously only mentioned them barely, or not at all.” Epic Games CEO Tim Sweeney tweeted in response to the stay, “Justice delayed, again.”

Despite granting Apple’s request, Ninth Circuit Judge Milan D. Smith Jr. writes, “...while the arguments in Apple’s motion may not be technically frivolous, they ignore key aspects of the panel’s reasoning and key factual findings by the district court. When our reasoning and the district court’s findings are considered, Apple’s arguments cannot withstand even the slightest scrutiny. Apple’s standing and scope-of-the-injunction arguments simply masquerade its disagreement with the district court’s findings and objection to state-law liability as contentions of legal error.”

Michael Love:

[This] whole business seems like nothing but a stalling tactic; Apple is going to wait exactly 89 days to file their cert petition and hope the Supreme Court sits on it for a month or two before rejecting it, so they get an extra few months to dream up new ways to punish developers for offering outside purchase links.

Michael Love:

Apple seems - among other things - to treat “a settlement of a class action exclusively with small developers in which they agreed to waive a trivial anti-steering provision” as dispositive, and bringing up the fact that the same judge that approved that settlement also imposed this one would seem to undermine their argument rather than bolstering it (because presumably she did it knowing that the original settlement was insufficient).

Also their lawyer doesn’t seem to realize that Steam for iOS is an app that exists and undercuts this entire thread of argument[…]

Juli Clover:

Apple does not need to change its “anti-steering” App Store rules while its legal dispute with Epic Games continues to play out, the U.S. Supreme Court decided today. Apple can maintain the App Store rules as is while the Supreme Court considers its appeal, according to Bloomberg Law.

Adi Robertson (Hacker News):

Justice Elena Kagan declined to vacate a stay on a lower court order about Apple’s anti-steering rules, which limit how iOS app developers can direct users to alternate payment methods. Kagan did not issue an explanation for the decision, but Epic’s petition was noted as denied on the Supreme Court’s website.

Juli Clover:

Epic Games today filed a petition for a writ of certiorari with the Supreme Court, which basically means the company is asking the Supreme Court to make a ruling in its ongoing legal battle with Apple.


Epic’s 488 page filing lists several reasons why the Supreme Court should hear the case, focusing on errors made by the lower courts and the significance of the case, as any major App Store change would impact hundreds of thousands of developers.


Apple back in in July was given 90 days after the appeals court ruling to decide whether it would petition the Supreme Court. Apple has not yet contacted the Supreme Court, nor has it hit that 90 day limit. When the 90-day limit expires, Apple will either need to ask the Supreme Court to hear the case or implement the App Store changes that it has been ordered to make.


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