Epic Files Motion to Enforce Injunction
Yesterday afternoon, Apple broke its week-long silence on the status of our app review with a letter saying they will not act on the Fortnite app submission until the Ninth Circuit Court rules on the partial stay. We believe this violates the Court’s Injunction and we have filed a second Motion to Enforce Injunction with the US District Court for the Northern District of California.
We’ve been transparent with Apple about our intentions while they’ve used app review and notarization as a pretext to circumvent the Court’s injunction and the EU Digital Markets Act. Apple’s “solution” required us to submit two versions of Fortnite, in violation of their guideline that developers shouldn’t submit multiple versions of the same app. That’s not the standard Apple holds other developers to and it’s blocking us from releasing our update in the EU and US.
Epic claims Apple is in contempt of the judge’s April order that restricted Apple from rejecting apps over their use of outside payment links. Epic argues that Apple’s refusal to review its Fortnite submission until after a pending Ninth Circuit ruling amounts to retaliation for its legal challenges.
According to a letter from Apple shared by Epic, Apple stated it “won’t take action on the Fortnite app submission until after the Ninth Circuit rules on our pending request for a partial stay of the new injunction.” Epic contends this delay violates Apple’s previous assurances to both Epic and the court that it would approve Fortnite if the app complied with Apple’s guidelines.
The motion (PDF):
On May 1, 2025, Epic notified Apple of its intent to avail itself of the Injunction and the new Guidelines. Specifically, Epic notified Apple that Epic would use the same developer account that it uses to distribute the Epic Games Store and Fortnite in the European Union to submit Fortnite for App Review in the U.S. Epic invited Apple to provide it with further direction if Apple preferred that Epic submit Fortnite for review another way (e.g., through a different developer account). On May 2, 2025, Apple—through its outside counsel— stated that if Epic wanted to submit using the process Epic had outlined, it should do so.
On May 9, 2025, Epic submitted for review a build of the Fortnite app that fully complies with all applicable App Review Guidelines, through a developer account in good standing. […] Apple did not act on Epic’s submission for five full days, despite representations that it generally reviews 90% of app submissions within 24 hours. Then on May 15, 2025, Apple informed Epic via a letter that it “has determined not to take action on the Fortnite app submission until after the Ninth Circuit rules on [Apple’s] pending request for a partial stay of the [Contempt Order]”. […] In the letter, Apple did not suggest that any version of Fortnite submitted for review was in any way non-compliant with any of Apple’s policies, rules or Guidelines.
Mark A. Perry (PDF):
As you are well aware, Apple has previously denied requests to reinstate the Epic Games developer account, and we have informed you that Apple will not revisit that decision until after the U.S. litigation between the parties concludes. In our view, the same reasoning extends to returning Fortnite to the U.S. storefront of the App Store regardless of which Epic-related entity submits the app.
[…]
I understand that the recent submission by Epic Sweden included a proposed Fortnite app for the U.S. storefront of the App Store as well as for alternative distribution in other geographies. To prevent our discussions surrounding the U.S. storefront of the App Store from impacting Fortnite in other geographies, please withdraw that submission and resubmit the app without including the U.S. storefront of the App Store (this can be accomplished by unchecking the relevant box).
I believe that Sweeney knew that Epic wouldn’t and couldn’t win their legal claims against Apple, at least not in full. But in just filing them, they started a process which has snowballed into a blizzard for Apple. Both around the world and now at home as well. While that has largely been political, it’s also increasingly moving down the chain.
Apple developers having long been annoyed with the company about various elements of App Store development, and now Epic’s lawsuit, and political fallout, gives them more cover and hope for real change. I don’t believe this has yet translated to consumers in any meaningful way, but that doesn’t mean that it won’t. If every single headline turns into yet another thing Apple is doing to say, keep Fortnite off the App Store, years later, these things tend to have a cumulative effect. Even if Apple is in the right in that particular case, legally. The public doesn’t care about that. All they see is that Apple continues to block a developer from the App Store.
[…]
Apple’s actual stance on the matter – via lawyers – also sounds fairly reasonable. They simply would wish to not rule on allowing Epic (and thus, Fortnite) back in the US App Store until all legal proceedings between the two are final. Epic was trying to use a loophole created because of the unique situation in the EU with regard to the DMA and third-party app stores, but it was never going to fly in the US. It’s pretty black and white. Epic – and all their affiliates – are banned.
There are sort of two tracks to this story: what Apple has said and done and what its legal rights are.
On the first, Apple kept saying, in public and directly via Tim Cook in court, that if only Epic would submit an app that followed the rules, that Apple would approve it. At some point, it changed its mind and added the stipulation that this would only be after all the appeals were over. Then we have Epic saying that on May 2 Apple suggested that Epic submit Fortnite for the US App Store via its Swedish account. And on May 15 Apple asked that this submission be withdrawn. Apple considers Epic to still be banned from the developer program in the US.
As to the legal rights, I think there two questions. First, does the judge’s order that Apple must immediately comply with the anti-steering also imply that Epic gets to take advantage of such? On the one hand, I didn’t see anything in the order saying that. On the other hand, it would be ironic if Epic ended up ensuring these rights for everyone but themselves. And second, does Epic Sweden, with an account in good standing, albeit perhaps only due to DMA threat, have rights as a European company to submit apps to the US App Store? Or is it, as the US court found, subject to the lawful ban of Epic US?
The other interesting question is, what exactly did Apple say to Epic on May 2?
Epic’s May 16 court filing includes a declaration from Epic’s lawyer, who recounts a phone conversation with Apple’s lawyer:
On May 2, 2025, Mark A. Perry, counsel for Apple, called me about the Fortnite submission. Mr. Perry stated that because of the litigation between Epic and Apple, the submission had been escalated to his attention. He told me that Apple could not comment on whether the proposed Fortnite build would be accepted because Apple had not yet received it for review, but that if Epic wanted to submit the build using the Epic Games Sweden AB account, Epic should go ahead and do so.I want to emphasize two crucial parts of that conversation:
- “Apple could not comment on whether the proposed Fortnite build would be accepted”
- “if Epic wanted to submit the build using the Epic Games Sweden AB account”
Apple did not unqualifiedly suggest that Epic go ahead and submit Fortnite for the US App Store. Epic had already stated their intention to do so, and Apple was simply approving (or at least not objecting to) that specific action, without giving any indication of whether the submission would be approved for the App Store.
In other words, Epic was implying that Apple reneged again, but it appears that Apple just told them to submit the app without giving any specific assurances.
One way to interpret this is that if Apple says, “We can’t promise anything, but <hint> you should submit it,” there’s an implication that it would be worth your while to try. That’s how normal conversations work. If I knew it would just waste your time, I would tell you not to submit it.
But there is also a reading that’s more legalistic than pragmatic, where Epic asked a question and Apple replied with two independent settlements that are true but useless: “Yes, it’s possible for you to submit. We won’t say what will happen if you do.” This is, by the way, pretty much what they say to normal developers all the time. If you ask whether something that want to do is allowed under the guidelines, Apple says to write the app, submit it, and then find out.
Previously:
- Fortnite “Blocked”
- Fortnite Coming Back to the App Store?
- Court Orders Apple to Comply With Anti-Steering Injunction
- Apple Lies About Epic Again
4 Comments RSS · Twitter · Mastodon
There's something missing from this post...
> There are sort of two tracks to this story: what Apple has said and done and what its legal rights are.
And, what about what Epic has said and done? They submitted their app through an account they created for the EU only, promised (via their CEO) it would be accepted by the end of the week, and that's only the latest! Please, be fair-minded!
Apple isn't operating in the way I hope they should, but neither is Epic. (Looking for my second bowl of popcorn for this fight....)
Epic are automatically not in good standing - they were found guilty of tricking children into purchasing things in Fortnight with the tactic of pretending an in-Epic-store purchase was a limited time offer when it wasn't - knowing all too well that children are impetuous and very easily lead into making rash decisions through FOMO.
They should be banned from iOS permanently.
So, yeah, Tim Sweeney is full of shit. We know this. And I figured their latest stunt was going nowhere.
But then it got weird. The judge issued this Show Cause order today:
The Court is in receipt of Epic Games, Inc.'s Motion to Enforce the Injunction. The Court thus issues this Order to Show Cause as to why the motion should not be granted. Briefing shall occur on the schedule listed below and shall include the legal authority upon which Apple contends that it can ignore this Court's order having not received a stay from the Ninth Circuit Court of Appeal even though its request was filed twelve days ago on May 7, 2025.
Obviously, Apple is fully capable of resolving this issue without further briefing or a hearing. However, if the parties do not file a joint notice that this issue is resolved, and this Court's intervention is required, the Apple official who is personally responsible for ensuring compliance shall personally appear at the hearing hereby set for Tuesday, May 27, 2025 at 9:00 a.m. in the United States District Court, Northern District of California, Oakland, California, Courtroom One.
What part of the order is Apple “ignor[ing]” by refusing to approve Fortnite? I get that she’s livid with them, and I think the argument that would move the needle is “the Fortnite build has links out and they’re denying it for that reason.” Sure, that would defy the latest injunction.
But that’s also not true—that isn’t the reason they’re denying it. And even if you don’t believe Apple is operating in good faith on this issue in general, it’s pretty clear they have a cognizable, reasonable, and believable basis for denying it based on Epic’s past conduct and Epic’s own words, when they stipulated that Apple is within its rights to close Epic’s developer account if Apple wasn’t found to be a monopoly or have violated antitrust laws, which they were not on either count (actually 9 of 10 counts).
Again, I know she’s fed up with them, but surely she can see that even if her current injunction gets upheld (“too close to call” IMO), she is the one that ruled Apple can terminate Epic’s DPLA in the first place, and reversing that now with seemingly no basis other than being mad at them is a slam dunk overturn on appeal. (And might help get the injunction overturned, too, if Apple can successfully paint it as retaliation.)
So bizarre.
@Dave “And, what about what Epic has said and done? They submitted their app through an account they created for the EU only, promised (via their CEO) it would be accepted by the end of the week”
Well, I don’t know where it’s written that the account was for the EU only. Apple did say they could use it for this submission. Sweeney said that Epic would submit the app by the end of the week, which it did. Obviously, no one outside Apple can ever promise when any app will be approved, so it wouldn’t make sense to believe him to be promising that unless it were already Pending Developer Release.
@Kevin It is strange. Maybe Apple had a basis for denying the account, but now that the Swedish account exists they can’t re-kill it without more bad behavior from Epic? And since Epic is now basically allowed to do what they broke the rules to do in the first place, what would that bad behavior be?
