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Apple Chooses To Fight With Epic’s “Friend” As Major App Store Change Looms


The Apple logo is displayed at an event at the company’s headquarters in Cupertino, California, United States, September 10, 2019. REUTERS / Stephen Lam

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A court-ordered injunction is expected to make major changes this Thursday to Apple’s App Store: the tech giant will have to allow app developers to offer links in apps managed by Apple that allow users to leaving Apple’s system to pay for digital content.

Apple views the impending injunction – imposed by U.S. District Yvonne Gonzalez Rogers of Oakland, Calif., In Epic Games Inc’s antitrust case against Apple – as a disaster that “will hurt customers, developers and Apple. -same”. The company failed last month to persuade Rogers to stay its order pending Apple’s appeal. So, on November 16, Apple applied for a stay at the 9th United States Court of Appeals.

At Apple keep it short In Circuit 9, company attorneys at Gibson, Dunn & Crutcher argued that the injunction threatened the safety and privacy of App Store users, who could be exposed to scams when they ventured out Apple’s carefully protected domain. This uncertainty, Apple said, will put users off, which in turn will hurt app developers when customers decide not to make purchases.

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Some of these developers disagreed with Apple’s doomsday scenario. In a amicus thesis proposal filed at the 9th Circuit on November 29, the Coalition for App Fairness and four individual app developers, including online dating giant Match Group Inc, told the 9th Circuit that app developers were eager to see the injunction of Rogers take effect “as a remedy for an extremely harmful and anti-competitive practice in a gigantic sector of the United States economy.” With the new rules in place, the proposed amici said, app developers will finally be able to help consumers break free from Apple’s internal payment system, with its inflated commission costs.

This is where Apple’s appeal gets interesting: even as the company argued with Epic over who will ultimately win the appeal against the injunction and whether Epic, whose flagship game launched from the App. Store, has the same standing to request the injunction, Apple has also chosen a fight with the amici proposed by Epic.

Their brief, at least according to Apple, was not at all an objective representation of the injunction’s impact on app developers. According to Apple, the Coalition for App Fairness is actually an alter ego of Epic – a sort of Frankenstein monster, created by Epic for the sole purpose of influencing this litigation.

The genesis of CAF was the subject of testimony before Rogers, Apple said in its brief oppose the filing of amicus. Evidence at trial included material from a presentation to members of the Epic board of directors on the company’s planned attack on “Project Liberty” on Apple – including Epic’s proposal to create a developer group. like-minded who would lead the campaign against Apple App Store commissions.

“The CAF is the product of Epic’s litigation strategy,” Apple said in the November 30 filing. “CAF is not independent from Epic. Yet CAF has chosen not to disclose to this very tribunal that Epic is a member, let alone that Epic created and controls CAF. “

Rogers adopted Apple’s representation of the coalition in its post-trial factual findings. Epic had created the coalition in anticipation of a campaign against Apple, she said. He had also hired a consultant, Rogers said, to “establish a reason for [the coalition] exist (either organic or manufactured).

In the heat of the moment, there is always a risk for a party who opposes an amicus brief. By objecting to the brief, you may attract more attention than the filing would otherwise receive. But Apple and Gibson Dunn, who declined to provide a statement in response to my question about the amicus spat, clearly believed that paying close attention to the origin of the coalition would be beneficial to them.

If the coalition and its lawyers of Lowey Dannenberg hoped in the meantime to ignore the questions about Epic’s involvement in the group, this plan has gone wrong with the file filed by CAF in response to Apple’s opposition. to the proposed amicus involvement. The Coalition for App Fairness and other app developers first submitted a brief on December 2 that Apple had distorted the facts: “It is simply wrong that CAF… is controlled, funded or influenced by Epic in any way. way either. “

Pretty definitive, right? But then Lowey Dannenberg deleted that brief and filed a revision. He only said that Apple had distorted the Coalition for Application Fairness, which was not “singularly controlled by Epic”. The review, in other words, seemed to go back on Amici’s initial claim that Epic had absolutely nothing to do with the coalition it had founded.

Epic attorney Gary Bornstein of Cravath, Swaine & Moore referred me to an Epic spokesperson, who in turn referred me to the Coalition for App Fairness. CAF attorney Peter St. Phillip de Lowey Dannenberg said the coalition followed federal rules of appeals process in its disclosures. These rules do not require amici to disclose when a party to the case is a member of the organization seeking to appear as an amicus. Epic, he said, did not fund the 9th Circuit case, and Epic’s lawyer did not draft it either.

Regarding the return in amici’s revised response to Apple, St. Phillip said the change was intended to “correct an error in the way we worded” the first draft of Epic’s role in Coalition. “The second brief is more specific,” said St. Phillip, who described CAF as an independent group headed by a board of directors with final decision-making power.

I’m not sure if any of this will matter at Circuit 9, which only has a few days to decide whether to suspend the app store injunction. But I would say the developer amicus dossier is unlikely to win out for Epic.

The opinions expressed here are those of the author. Reuters News, under the principles of trust, is committed to respecting integrity, independence and freedom from bias.

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