Apple, Epic Denied Court Rehearing in App Store Antitrust Suit

Apple Inc. and Epic Games Inc. failed to convince the full Ninth Circuit Friday to reconsider its findings in a closely watched antitrust dispute over Apple’s operation of its App Store.

The US Court of Appeals for the Ninth Circuit’s April decision was a partial win for both Apple and Epic, maker of the popular Fortnite game. The court said Apple must let app developers steer users to alternative payment options. However, it blocked Epic’s efforts to force Apple to allow third-party app marketplaces onto the operating system.

The appeals court also reversed a lower court’s finding that Epic wasn’t required to pay Apple’s attorney fees.

The Ninth Circuit denied the dueling rehearing requests without explanation. The next step in the litigation, if Apple or Epic chose to pursue it, would be a petition to the US Supreme Court.

Apple argued in its petition for rehearing that the court’s decision would prevent the company from “deploying one of the tools it uses to protect security and privacy, and thereby compete with other platforms.”

“Moreover, the uncontradicted evidence at trial showed that virtually every online platform has adopted anti-steering (or anti-circumvention) rules similar to Apple’s,” the company said.

Epic, on the other hand, argued in its petition that Apple “blocks the development of more innovative and higher-quality app stores and payment solutions—including those that would provide greater privacy and security—and reduces its investment in its own products.”

The panel unanimously denied the petitions for rehearing. Judge Milan D. Smith Jr. also voted to deny the petitions for rehearing en banc, joined by Judge Sidney R. Thomas and District of Oregon Judge Michael J. McShane, sitting by designation.

Cravath, Swaine & Moore LLP, Faegre Drinker Biddle & Reath LLP, and Thomas C. Goldstein of Washington, D.C., represented Epic. Gibson, Dunn & Crutcher LLP and Weil, Gotshal & Manges LLP represented Apple.

The case is Epic Games Inc. v. Apple Inc., 9th Cir., No. 21-16506, 6/30/23.