Apple returned to court on Tuesday to argue against Judge Yvonne Gonzalez Rogers’ injunctions regarding the Epic Games case. The bench was receptive. Here’s the outcome of the hearing.
‘How do measure that?’
Apple argues before the United States Court of Appeals of the Ninth Circuit to either reverse Judge Rogers second injunction issued earlier this year or to reverse her original 2021 injunction. Apple also asked that the case be reassigned by a different judge.
In his deposition yesterday, Apple’s attorney Gregory Garre focused on the zero-commission rule, which prevents Apple from collecting fees for purchases or downloads that occur outside of its environment.
After hearing Apple’s arguments the court seemed to be interested in understanding exactly how Apple would calculate how much it should receive for payments processed outside of the App Store. They also questioned Apple’s commitment towards actually solving the problem:
Judge Milan Smith Jr.: I don’t believe Judge Gonzalez Rogers looked (Apple 30% commission) this way. I think she thought you were trying hide something, that you reverse-engineered what was done in order to get a certain result. We want to do it right. Let’s say you are entitled to a commission that is “reasonable”presumably at least for your actual costs. How do you measure this? The iOS platform is very complex. It has been developed over time and continues to be. I know this from my own gadgets. How do you measure it?
Gregory Garre : This is why you need experts. But I think that if you look at the value that developers receive from the tools and technologies Apple provides, tools which are used to improve and develop apps in the first instance, the value that users of Apple’s ecosystem desire a safe and secured marketplace to operate apps and the value that comes with access to Apple’s vast user base, then that is what we should be looking at. All of these items, technologies, and things have a value that economists, experts, can place on them. We would then propose a commission we felt was fair and appropriate.
Judge Milan Smith Jr.: Given that Apple wants to be compensated as quickly as possible, are you saying Apple would have an incentive to come up with a “reasonable” fee rather than just play games?
Gregory Garre : Yes, Your Honor. Apple does not want to be involved in further proceedings and have to appear before this court. I said at the beginning that we take the district court’s decision very seriously. We will take this court’s opinion very seriously, and we are in a position to propose a reasonable commission, and defend it, in a proceeding where experts from both sides can be heard.
However, the court was sceptical of Apple’s argument, that the decision should only apply to Epic Games and not to all App Store developers within the United States. Mr. Garre responded by stating that the ruling should only apply to Epic Games and that other developers will need to file their own lawsuits to have similar changes affect them.
‘Quite a punishment’
Epic’s lawyer Gary Bornstein tried to convince the court that Apple never made an argument that a lower commission would be appropriate. Therefore, to allow Apple to send the case back the district court and to “try again and to do something that they (they) had never asked the court to in the first place”wouldn’t be fair for the premise or course of the case.
However, the court seemed to favor Apple’s request. The court also stated that Epic Games had “surreptitiously” changed the code, which was the reason for its expulsion from the App Store. It also stated that Apple not being able to charge anything to customers for the purchases at issue “is a severe penalty,” since “we’re (talking) billions of dollar, right?” One judge stated that “nothing” in the injunction said Apple couldn’t charge a commission.
After a few remarks from both legal teams the court adjourned. It is now up to the judges to decide if they grant or deny Apple’s requests to reverse any injunction or possibly assign a judge if the case goes back to the district court. You can view the entire deposition here:
? Comment below.
Accessory deals at Amazon
- Apple AirTag 4 Pack, Beats USB-C To USB-C Woven Short Cable, Logitech MXMaster 4, AirPods Pro 3, Wireless CarPlay adapter,
- Wireless CarPlay converter
- iPhone Air Ultraslim Magsafe Power Bank.
FTC: we use income-generating auto affiliate links. More.
