Epic fail.
By that wordplay I don't mean the order by the United States Court of Appeals for the Ninth Circuit granting Apple's motion to stay the consolation-prize injunction under California Unfair Competition Law (UCL) that the district court had granted Epic Games. Anything else would have been a major surprise. I explained on a few occasions that Apple handily met the criteria for a stay. In fact, I got a 3 out of 3 for my predictions in this context: I said the district court would clarify the narrow scope of the UCL injunction (as it did, though people are free to still pretend to be obtuse), and would uphold its own injunction, but the appeals court would stay it. Actually, it's even 4 out of 4 as you'll see further below in the context of an amicus brief Apple successfully opposed.
The order granting Apple a stay (that will practically be in effect for a couple of years) is terse and doesn't take a position on whether Apple's conduct raises competition concerns or not. However, a binary outcome is now most likely as the federal appeals court for the West Coast cites California's Chavez case law, according to which the failure of a theory under federal antitrust law (Sherman Act) spells doom for a California UCL claim on the same basis. I continue to wish Epic luck with their own appeal (of the rejection of nine of Epic's ten counts), though the hurdle is high and Epic has made some mistakes that it's too late to fix now. My guess is that the appeals court will not overturn the district court's finding that Apple is not a monopolist, and Epic's failure to prove something that is so obvious to me--that so-called Progressive Web Apps are not a viable alternative to native apps--is not the only issue but that one alone is probably sufficient all by itself to make Epic lose again.
But the real #epicfail here--which has significant implications beyond Epic Games v. Apple has apparently not been noticed yet by others reporting on the case. The largest and most influential U.S. regional appeals court denied a motion by the Coalition for App Fairness and some of its members to submit an amicus brief in support of Epic's opposition to Apple's motion, and the denial of an amicus motion is nothing short of a nightmare for any advocacy group (this post continues below the document):
21-12-08 Order Denying CAF ... by Florian Mueller
This is a 4 out of 4 for me as I wrote last Thursday that I agreed with Apple's opposition to that amicus brief submission.
U.S. courts--and especially appeals courts--normally have a permissive approach toward amicus briefs, above all in high-stakes high-profile cases like this one. It rarely happens that they tell stakeholders they are unwelcome to join a proceeding as "friends of the court" contributing potentially useful information. Here, however, a filing by the Coalition for App Fairness (whose three key members are Epic, Spotify, and Match Group, which is best known for Tinder) and four of its members (Match Group, Tile, Basecamp, and Knitrino) has been flatly rejected by the Ninth Circuit.
As a result, the CAF now faces a credibility issue in any other App Store cases around the globe in which it may try to support Epic or even another one of its large members. Even if other courts ultimately allowed the CAF to join other cases, Apple would point to the Ninth Circuit decision, which at a minimum would diminish the credibility of anything the CAF would say on Epic's behalf. The CAF has now been stigmatized as part of an Epic anti-Apple initiative designed to raise issues regardless of whether those were "organic or manufactured" as the evidence shows.
The CAF and its members even sought to defend their motion by filing a reply brief shortly after Apple's opposition--but to no avail.
What I hope, however, is that courts will apply the same standard at the merits stage when ACT | The App(le) Association intervenes on Apple's behalf, claiming to represent small app developers though it's unclear whether any small app developer ever paid a cent in membership dues to ACT--while Apple is a major financial backer of that lobbying front. Compared to ACT, the CAF is like 100 times more credible--even if not credible enough in the Ninth Circuit's eyes.
The appeals court did not state a particular reason for denying the motion. But again, this is an unusual decision. It means that the CAF was unable to overcome the credibility issues Apple had raised, despite the considerable effort it made. The stay of the injunction was expected: the hurdle for that was relatively low. However, the denial of that amicus motion is unusual, and I suspect some people in Cupertino are really excited about it.
I wish to thank Richard Hoeg of Hoeg Law, who runs a YouTube channel named Virtual Legality. In a video he posted yesterday, Richard recommends my blog (click here to get directly to that part of the video) while clarifying that my take on Apple's App Store policies differs from his in the sense that I'm more critical of Apple's App Store governance (which is true). This shows again that people can agree at a rational and analytical level regardless of their personal preferences and opinions. His commentary on Epic v. Apple is always insightful--and I say that because I mean it, not just to reciprocate his shout-out for this blog.
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