SALT LAKE CITY, UTAH – This week, Attorney General Sean D. Reyes led a 35-state bipartisan coalition supporting Epic Games, Inc. in Epic v. Apple. The States filed an amicus brief in the United States Court of Appeals for the Ninth Circuit.
Epic’s flagship video game Fortnite had more than 115 million registered players accessing Fortnite on iOS before Apple removed Fortnite from the App Store. Epic sued Apple over its iOS App Store practices, alleging violations of state and federal antitrust laws and one violation of the California Unfair Competition Law (UCL). On April 24, 2023, the Ninth Circuit affirmed the district court’s judgment against Epic on breaches of antitrust laws and in favor of Epic on the UCL count. Epic and Apple are now both petitioning the Ninth Circuit for rehearing by the three judges that issued the original decision or for en banc rehearing, where all Ninth Circuit judges would consider the decision.
In their brief, the States focused on two reasons why the Ninth Circuit three-judge panel that issued the decision was wrong and required rehearing. First, the panel correctly found that the district court failed to perform the fourth step of the rule-of-reason analysis because it did not balance the anti-competitive and pro-competitive effects of Apple’s conduct, but the panel wrongly held that the district court’s error was harmless. Second, the panel’s decision is inconsistent with Supreme Court precedent and would allow future district courts to avoid the careful balancing required by the rule of reason.
The attorneys general write, “Apple’s anticompetitive conduct reaches far enough to warrant panel or en banc rehearing. It has harmed and is harming mobile app developers and millions of citizens within the Amici States’ boundaries. Meanwhile, Apple continues to monopolize app distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry.”
Joining Utah were the States of Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, and the District of Columbia.
