Judge wants a jury to decide Epic Games’ antitrust lawsuit versus Apple
A California district court judge said she would prefer that Epic Games’ high-profile antitrust lawsuit against Apple go to a jury trial.
Judge Yvonne Gonzalez Rogers, of California’s Northern District Court, said a jury trial would give a clearer indication of what people care about in this case, and it would be less likely to be turned over by a higher court on appeal.
“I know I am just a stepping stone,” Gonzalez Rogers said during the Zoom hearing, adding that whoever loses will likely appeal to a circuit court judge and argue that her opinion is wrong. She noted higher courts are also more likely to respect facts found by a jury.
“It is important to see what real people think,” she said. “Do these security issues matter to people or not? Are the concerns of developers important or not?”
If the case went to a jury trial, it would ensure that Cary, N.C.-based Epic’s battle with Apple could stretch on for a long time. An appeal of that decision, which would have significant implications in the technology industry, could stretch it even further. Lawyers have previously told The News & Observer cases like this could go well beyond a year.
There is also the question of how courts are conducting trials given the spread of the COVID-19 pandemic. California courts are trying hard to have juries, Gonzalez Rogers said.
Gonzalez Rogers noted a trial would not start until next year.
A dispute tied to Fortnite
The case stems from a dispute between Epic and Apple that boiled over last month. Epic, which has long railed against Apple’s mandatory 30% in-app purchase fees, updated its hugely popular game Fortnite in August to insert a payment system that would exclude Apple’s cut.
Apple responded immediately by kicking Fortnite off the App Store and threatened to remove Epic’s other accounts, like its visualization tool the Unreal Engine.
Epic, in turn, sued Apple for violating antitrust law due to the market power it holds over the distribution of apps to its more than one billion users.
Apple has maintained that its App Store policies are critical to keep a fair and safe platform. It objects to the idea of letting users directly download apps, as it would then lose the ability to vet them.
While the dispute has played out in the courts, Fortnite players have been unable to download the newest version of the game on the iPhone. Epic has said around 10% of the game’s daily active users are on the iOS platform, as opposed to others, like the Xbox, computer or PlayStation.
Apple lawyers say that since iOS users make up such a small portion of active players, it is proof that it is a competitive market with other options. Epic’s lawyers say that ignores the fact that the iOS market has potentially more than a billion customers.
On Monday, Gonzalez Rogers considered arguments on whether to force Apple to allow the game back on the App Store while the lawsuit proceeded, as well as the fate of its other developer accounts.
Epic says that the banning of Fortnite is causing irreparable harm to it as a company. But Apple is pushing against that possibility by saying it would give other companies a “greenlight” to act similarly to Epic.
Gonzalez Rogers did not say how she would rule on that, but, at one point, she asked whether or not the companies would be comfortable with Fortnite returning to the App Store with Epic abiding by Apple’s payment system. She suggested that Apple’s fees could be placed in an escrow account until there was a trial.
Apple lawyer Theodore Boutrous said he would have to check with Apple on that idea. But Epic lawyer Katherine Forrest said that Epic would not go along with that idea because it would mean the video game maker would continue taking part in a system that is monopolistic.
Coalition for App Fairness
Throughout the two-hour hearing, Gonzalez Rogers had pointed questions for lawyers on both sides.
She noted there are an increasing number of app developers calling out Apple’s App Store policies. Epic joined a consortium of other app developers last week, called the Coalition for App Fairness, that called for Apple to change some of its policies around app distribution and how payments are processed. Spotify and Match Group, the owners of the dating app Tinder, also joined the coalition.
But while developers seem to all have gripes, Gonzalez Rogers indicated that Epic might not be the best vessel for those complains.
“I am not sure we have the right plaintiff given the amount of competition in mobile games,” she said, noting other game distributors, like Steam, that charge 30% fees.
An Epic lawyer, Gary Bornstein, said that was the wrong way to look at it.
“We don’t challenge the 30%,” he said. “That is the outcome of the anti-competitive structure that we do challenge. We would like to distribute directly on the iPhone without going through the App Store.”
Apple lawyer Richard Doren responded that allowing Epic to have its own store within the App Store “is a fundamental disagreement with the way Apple does its business. This is the way it has chosen to set up its market to safeguard its users.”
This story was produced with financial support from a coalition of partners led by Innovate Raleigh as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work. Learn more; go to bit.ly/newsinnovate
This story was originally published September 28, 2020 at 5:41 PM with the headline "Judge wants a jury to decide Epic Games’ antitrust lawsuit versus Apple."
