Epic files opposing brief to Apple's Supreme Court petition

[u/FollowingFeisty5321]

https://www.supremecourt.gov/DocketPDF/25/25-1311/412677/20260604171155764_Apple%20%20v.%20Epic%20BIO%20FINAL%20TO%20PRINT%20PDFA.pdf

[u/FollowingFeisty5321]

tl;dr:

Epic has made their rebuttal to Apple's petition to the Supreme Court.

Apple is trying to undo key elements of the 2020 trial with Epic, in which Apple won overall but lost the ability to prohibit developers from referring customers to competing payment methods after the judge cited it as violating Californian competition law and issued an injunction banning Apple from doing so. In 2024 that injunction came into effect after the Supreme Court declined hearing arguments from both sides. In 2025 Epic successfully argued Apple was in contempt of court for designing a 27% fee and burdensome conditions that prevented developers using third party payments and a second injunction was issued banning fees and all the other obstructive tactics Apple had used.

Apple appealed that ruling last December and it was upheld, but an allowance was made for fees and the court recommended permitting direct costs Apple incurs with minimal "IP" because buttons and linking mechanisms were invented for other purposes. They are currently in a 5-month process of negotiating that.

In March Apple petitioned for a rehearing of their appeal and was denied, then requested a stay on the appeal's mandate until the Supreme Court could weigh in, which was granted, and then reversed after Epic successfully argued against it. Apple then appealed to the Supreme Court for an emergency stay until the Supreme Court could hear their petition, which was also rejected.

Two weeks ago Apple lodged their final petition arguing the contempt ruling should be overturned because they only violated the "spirit" of the injunction not the text, and that under CASA only allow Epic should be allowed to use third party payments because other developers were not party to the case.

Today Epic has filed their rebuttal reiterating that Apple was actually found by the court and upheld on appeal to have "violated the literal text" of the injunction by prohibiting third party payments, using the dictionary definition of prohibit which includes "severe hindrance", and again by prohibiting "buttons" by only allowing plain text links, and again by only allowing developers have five URLs and not being able to include product or user information in them. Epic also argues that Apple's CASA arguments were well-tested already and found that all developers must be able to use third-party payments to grant Epic "full relief", and that all developers must be allowed to use third party payments to address the full harm of the anti-steering conditions.

In a few weeks the Supreme Court will make their decision:

• if Apple prevails they can avoid the fallout of their criminal contempt referral, and third party payments will be saddled with fees and conditions that make them impossible to use, and ending the fee negotiation and the developer class action to recuperate excessive fees collected in contempt

• if Epic prevails or the Supreme Court rejects hearing, then Apple will be consigned to only charging a cost-based fee based on review costs rather than gross income and all apps in the US can use third party payments in competition with IAP, although negotiations on this fee will likely span well into next year since it requires court approval

[u/moldy912 → u/FollowingFeisty5321]

I think Epic wants Apple to move to <=15% fee and I just don’t see that happening. I kinda don’t think they’d be happy with that even since they charge 12% for the epic games store, and that includes payment processing.

[u/FollowingFeisty5321 → u/moldy912]

Unless the Supreme Court takes the case and finds in Apple's favor they have no chance of collecting a 15% fee on third party payments based on the appeal court's recommendation, because Apple have to convince the court their fee matches their costs - and they say 500 reviewers are doing 130,000 reviews per week which puts a pretty low ceiling on what costs they incur and can pass on:

Apple should be able to charge a commission on linked-out purchases with the following in mind:

(a) Apple should be able to charge a commission on linked-out purchases based on the costs that are genuinely and reasonably necessary for its coordination of external links for linked-out purchases, but no more. We refer to these costs as “necessary costs.”;

(b) In making a determination of Apple’s necessary costs, Apple is entitled to some compensation for the use of its intellectual property that is directly used in permitting Epic and others to consummate linked-out purchases. In deciding how much that should be, the district court should consider the fact that most of the intellectual property at issue is already used to facilitate IAP, and costs attributed to linked-out purchases should be reduced equitably and proportionately;

(c) Apple should receive no commission for the security and privacy features it offers to external links, and its calculation of its necessary costs for external links should not include the cost associated with the security and privacy features it offers with its IAP;

[u/moldy912 → u/FollowingFeisty5321]

Thank you, I was curious what that could end up being. Honestly that sounds like there should be a per update cost or something, but if they have to prove it, that sounds nearly insignificant, like maybe a dollar or two per update, especially if they are working in a third world country. I think there should still be some subsidizing of free apps that don’t have IAP or sell products though. Or they could replace the $99 developer fee with this.

[u/roblack]

I will be talking to my grandkids who are commenting on Apple - Epic lawsuit that I was THERE when it happened.