By Mike Scarcella
(Reuters) – Apple and “Fortnite” maker Epic Games on Wednesday both asked a U.S. appeals court to reconsider its April ruling in an antitrust case that could force Apple to change payment practices in its App Store.
Apple and Epic, in separate court filings, mounted challenges to a ruling by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals. Lawyers for the two companies said the panel should rehear the case or the court should convene “en banc,” as an 11-judge panel, to reconsider the dispute.
The April three-judge ruling upheld a 2021 order in California federal court in Epic’s lawsuit which accused Apple of unlawfully requiring software developers to pay up to 30% in commissions on consumers’ in-app purchases.
The trial judge found that Apple violated a California state unfair competition law, but not U.S. antitrust provisions. Apple’s new filing challenged a nationwide injunction over conduct Apple said was “procompetitive and does not violate the antitrust laws.”
Epic’s 9th Circuit filing argued that its claims against Apple directly implicate the “core purpose” of U.S. antitrust law to foster competition. Epic also argued that the appeals court did not conduct a “rigorous” balancing between asserted asserted consumer benefits and anticompetitive effects of Apple’s practices.
Federal appeals courts do not often grant en banc requests. Last year, the 9th Circuit received 646 petitions asking the court for en banc rehearings. During that period, the court granted 12 requests. In 2021, the court granted en banc review in nine cases.
The U.S. Supreme Court could have the final say on the outcome.
Representatives for Apple and Epic had no immediate comment.
The lower court ruling is on hold pending further appellate proceedings.
U.S. District Judge Yvonne Gonzalez Rogers’ ruling said Apple could not bar AppStore developers from providing links and buttons that direct consumers to payment options outside of Apple’s in-app purchase system.
Gonzalez Rogers did not provide any direction on how Apple must allow those links or buttons.
Competition authorities in other countries, including South Korea, the Netherlands and Japan, have taken steps to force Apple to open up its in-app payment systems.
The case is Epic Games Inc v. Apple Inc, 9th U.S. Circuit Court of Appeals, No. 21-16506.
(Reporting by Mike Scarcella; editing by Leigh Jones)
