Apple Loses Again in Epic Games Antitrust Case

A U.S. appeals court denied Apple’s emergency motion to pause a legal order in Epic v. Apple that opened up its App Store so that developers can communicate with their own customers and provide links to alternative payment methods.

“Apple ‘bears the burden of showing that the circumstances justify an exercise of [our] discretion,” the U.S. Court of Appeals for the Ninth Circuit wrote in its ruling. “After reviewing the relevant factors, we are not persuaded that a stay is appropriate. Apple’s Emergency Motion Under Circuit Rule 27-3 for a Partial Stay Pending Appeal is DENIED.”

As I’m sure you know, Apple turned a mixed verdict in Epic v. Apple into a rout of a defeat by ignoring the part of the ruling that required it to make a major change to its App Store policies and then pretending that it was trying to comply. U.S. District Court Judge Yvonne Gonzalez Rogers was so incensed by Apple’s behavior that she ordered the company to immediately make major changes to the App Store that opened it up even further than was originally planned, and she referred an Apple executive to an U.S. attorneys general for lying on the stand during hearings. Apple continued the shenanigans by blocking Epic’s attempt to bring Fortnite back to the App Store, but after the judge fired off a threat to pursue more criminal charges against the individuals at Apple responsible for this behavior, Apple suddenly relented and Fortnite made its triumphant return on the iPhone and iPad.

Since then, Apple filed its emergency motion to block the changes that opened up its App Store, freeing developers to do perfectly reasonable things like communicate with their own customers and offer alternative payment systems outside of Apple’s ecosystem without Apple imposing onerous 27 percent fees on those transactions. The goal was to pause the changes until it can complete the appeals process. But the appeals court says that Apple provided no evidence to suggest that its appeal will succeed.

“In deciding whether to impose a stay, we consider whether the stay applicant [Apple] has made a strong showing that he is likely to succeed on the merits, whether the applicant will be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties [Epic Games and all other app developers] interested in the proceeding, and where the public interest lies.” Apple did not meet this bar. And so the stay is denied and the new App Store policies remain in place.

“We are disappointed with the decision not to stay the district court’s order, and we’ll continue to argue our case during the appeals process,” an Apple statement notes. “As we’ve said before, we strongly disagree with the district court’s opinion. Our goal is to ensure the App Store remains an incredible opportunity for developers and a safe and trusted experience for our users.”

If only.

“Apple’s stay is denied by the 9th Circuit Court,” Epic Games CEO Tim Sweeney tweeted in response to the ruling. “The long national nightmare of the Apple tax is ended. May next week’s WWDC be the Apple-led celebration of freedom that developers and users have long deserved … Apple is free to make money by fairly competing to offer services such as payments and ads to willing buyers.”