Epic fights Apple’s request to pause App Store commission proceedings

Epic has submitted its opposition to Apple’s latest request to pause lower-court App Store commission proceedings while the Supreme Court reviews part of the case. Here are the details.

Epic opposes Apple’s request to pause proceedings

A few days ago, Judge Yvonne Gonzalez Rogers agreed to hear Apple’s bid to pause the proceedings that will consider what commission, if any, Apple can charge on off-App Store purchases.

Apple then submitted its official request with its reasoning as to why the lower-court proceedings should be paused until the Supreme Court rules on whether the company was properly held in civil contempt for violating the 2021 injunction.

In her 2021 injunction, Judge Rogers ordered Apple to let developers direct users to payment options outside the App Store. Apple complied by allowing external purchase links, but imposed a 27% commission and restrictions on how those links could be presented.

She later ruled that those measures violated the injunction and held Apple in civil contempt, while Apple maintains that the original order did not explicitly prohibit it from charging a commission on purchases completed outside the App Store.

With the civil contempt challenge under review by the Supreme Court, Apple argued in its latest request that the lower-court proceedings should be paused because the Supreme Court’s decision could eliminate or reshape the legal basis for determining what commission Apple may charge on external purchases.

Now, Epic has filed its response, strongly opposing Apple’s request:

This is Apple’s third attempt to delay the inevitable: a hearing to evaluate Apple’s proposed fee on steered transactions. This latest attempt should be denied for the same reason Apple’s prior attempts at delay failed: the Ninth Circuit’s unequivocal finding (nowhere mentioned in Apple’s Motion) that “[e]ven if the Supreme Court agrees with Apple’s arguments [regarding contempt], there would still be further proceedings on remand, particularly on the question of commission, and those proceedings are likely to look similar, if not the same, regardless of certiorari.” Order Granting Motion to Reconsider Stay and Denying Stay, App. Dkt. 192.1, at 3 (emphasis added) (“Order Denying Stay”). Those proceedings can and should move forward now. All that is before the Supreme Court is a narrow question regarding the standard for finding contempt. The Supreme Court denied certiorari on Apple’s proposed question about the scope of this Court’s Injunction, and the Ninth Circuit expressly authorized this Court to consider on remand whether and how that Injunction should be modified—a question entirely unrelated to contempt. This Court should therefore carry out the Ninth Circuit’s mandate, deny Apple’s latest stay request, and proceed with the remand proceedings.

Epic argues that with the Supreme Court not expected to rule until as late as June 2027, Apple’s latest request is another attempt to delay competition with its in-app purchasing system.

Epic also adds that, contrary to Apple’s argument, the lower court will still need to determine an appropriate commission regardless of how the Supreme Court rules. So, Epic says, “it is most efficient to begin that process now.”

Under the agreed briefing schedule, now that Epic has filed its response, Apple is expected to file its reply in support of the stay request today, July 13.

After that, if the court denies Apple’s motion, the company will have to file its external-link commission proposal within 24 hours of the judge’s ruling. However, if Apple’s request is granted, the lower-court proceedings will remain on hold while the Supreme Court considers Apple’s appeal of the contempt ruling.

Do you think the lower-court case should remain paused while the Supreme Court reviews the civil contempt finding? Let us know in the comments.

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