No "Friday for Fortnite" in San Francisco--at least not this week's Friday (October 21), the day for which the Epic Games v. Apple appellate hearing had originally been scheduled.
I just checked the Ninth Circuit docket and found the following notice (click on the image to enlarge or read the text below the image):
10/15/2022 197 Filed clerk order (Deputy Clerk: SVG): Due to the unforeseen availability of one of the panel members, the hearing in these appeals scheduled for October 21, 2022 in San Francisco is postponed. The Clerk will reach out to the parties to reschedule. [12564274] [21-16506, 21-16695] (SVG) [Entered: 10/15/2022 11:01 AM]
10/15/2022 198 Case came on for submission before SIDNEY R. THOMAS, MILAN D. SMITH, JR. and MICHAEL J. MCSHANE SUBMISSION DEFERRED. [12564275] [21-16506, 21-16695] (SVG) [Entered: 10/15/2022 11:05 AM]
There could also be other reasons, but "the unforeseen availability" of a judge in recent years has had to do with COVID in well over 50% of all cases.
The panel (former Chief Judge Sidney R. Thomas, Circuit Judge Milan Smith, Jr., and--sitting by designation--District Judge Michael D. McShane) was going to hear five cases. Two of the three criminal cases (one of them a habeas corpus petition, which is by definition somewhat urgent) have been taken under submission. The calendar of the United States Court of Appeals for the Ninth Circuit still states that each side will get 10 minutes in the third criminal case; maybe another judge will fill in or they have some other solution.
Presumably the three judges to whom the case was assigned--and their clerks--have already spent a fair amount of time analyzing the case, and hopefully they will remain in charge.
For a civil law case, Epic Games v. Apple is a rather urgent one, also because it involves an injunction (the enforcement of which was stayed for the duration of the appeal). That's why I have hope that the appellate hearing is still going to take place this year. But the parties' appellate attorneys are among the most sought-after ones in the United States (with Epic's lead counsel on appeal having achieved the two most spectacular appellate successes in technology industry cases in recent years), which won't make it any easier to find a near-term date that works for everyone. And I suspect that Apple would rather delay things.
On Friday--the day before the postponement was notified--MacRumors' Joe Rossignol tweeted about Apple holding a pre-hearing brief with reporters that same day, telling them "that Epic Games faces an uphill battle" and reminding everyone of the district court deciding against Epic on 9 out of 10 counts:
FYI: Apple held a briefing with reporters today to argue that Epic Games faces an uphill battle with its appeal to the Ninth Circuit court next week. In September 2021, a U.S. district judge ruled in Apple's favor on 9 of 10 claims brought by Epic.
— Joe Rossignol (@rsgnl) October 14, 2022
That's just litigation PR. Don't believe it.
To begin with, the number of claims is irrelevant. Epic could theoretically prevail on just one and still be the winner. This is not a ball game where you count goals; it's not like Epic now needs to score X number of goals to equalize. The underlying reasons for which the district judge ruled against the nine claims were closely intertwined. For example, some state law claims necessarily failed because the related claims under federal law had been ruled against.
While Apple calls it an uphill battle for Epic, Judge Yvonne Gonzalez Rogers herself said at the outset of the case that the parties should please agree to a jury trial because in her observation the appeals court affords a lot more deference to jury verdicts than to judicial decisions.
No matter what Apple told the press on Saturday, I am sure they are very, very afraid in Cupertino:
The law is on Epic's side.
In a recent post on the case, I provided links to my writings on the merits of the case, and since then I have additionally explained why Epic should prevail on its tying claim.
The facts are on Epic's side.
As Epic clarified in its reply brief (and it was actually clear all along), Epic focuses on legal questions, where the standard of review is de novo: technically, that means zero deference--the opposite of an uphill battle. You take the facts and start the legal analysis from scratch. This even applies to mixed questions of law and fact. While Epic noted that it does disagree with some of the district court's factual findings, it believes it can win this appeal as a matter of law even with the facts being accepted as they were described by the court below. Apple tried very hard (but unconvincingly in my opinion) to portray Epic's legal argument as disagreement with the district court's factual findings.
Psychologically, the district court's judgment doesn't inspire deference. It's extremely sloppy, with close to 300 typos, and stylistically not at a level with what you normally see from U.S. federal courts. The appeals court has probably already noticed the poor quality of the decision below, and identified some legal error of the kind that calls the entire ruling into question.
Public policy is on Epic's side.
Tim Cook's deposition toward the end of last year's trial made it clear that Apple can do to developers whatever it wants and doesn't even have to care about developer satisfaction. It's an unsustainable situation that developers' access to more than a billion users--roughly one billion out of the 1.2 or billion wealthiest people on the planet--depends on a single company's app review tyranny and arbitrary tax regime. Apple's monopoly abuse is causing macroeconomic damage.
During the pendency of this appeal, two organizations supporting Apple have been exposed as astroturfers: ACT | The App Association receives the vast majority of its funding from Apple. It's an Apple Association. There is only one thing I'd have liked Epic to do differently during the appeal: I wish they had opposed ACT's amicus brief and later (after Bloomberg exposed ACT) sought sanctions. Hopefully they'll do so next time. Then there's the so-called Computer & Communications Industry Association--actually nothing more than a Cash & Carry Industry Association. Just last week, three influential EU lawmakers filed a formal complaint accusing CCIA of astroturfing (pretending to speak for small companies).
Epic even has the better lawyers.
It's counterintuitive as Apple is the world's richest corporation and facing a company with a valuation that amounts to only about 1% of Apple's market cap. But Tom Goldstein won Oracle v. Google (for Google) and FTC v. Qualcomm (for Qualcomm). Cravath, which masterminded and continues to manage this litigation, is America's most prestigious law firm. Benchmark Litigation named five Cravath partners to its Top 100 Trial Lawyers in America list, two of whom represented Epic at last year's trial: Gary Bornstein and Katherine Forrest.
Apple has very good lawyers, too, but I'm really underwhelmed by the work they did on this appeal, though their primary problem is that Apple is wrong. They even conceded away the foremarket part of Epic's single-brand market definition. Apple's principal brief on appeal was all rhetoric and little substance.
"Advantage Epic" across the board.
The postponement is unfortunate. The app developer community, of which I'm a part, urgently needs change, and this case is so very important. I'm also a bit worried that Congress may not adopt the Open App Markets Act as we're approaching the end of the legislative term, and there is a risk of some Senators and United States Representatives preferring not to hold the decisive vote shortly before the Epic v. Apple appellate hearing. But this is a pressing problem, and I hope they'll do the right thing and #OpentheAppStores. Both Congress and the United States Court of Appeals for the Ninth Circuit.
