• by Wendy Davis  @wendyndavis, July 6, 2023

Epic Games is asking the 9th Circuit Court of Appeals to reject Apple's request to stay an injunction that would require the company to allow in-app links to outside payment platforms.

“The only purpose of a stay would be additional delay,” the Fortnite developer argues in papers filed Wednesday with the 9th Circuit Court of Appeals. “An injunction that should have taken effect more than a year ago would be delayed again.”

Epic's papers come in response to a request filed by Apple on Monday, when it urged the 9th Circuit to postpone finalizing the injunction until the Supreme Court had the opportunity to weigh in.

This latest battle over the injunction comes in a dispute between Epic and Apple that began in the summer of 2020, when Epic began allowing gamers to make purchases directly from it, in violation of then-existing Apple's policies.

At the time, Apple required developers to use its payment platform for in-app purchases, and charged a commission of up to 30% on those sales. (In 2021, Apple agreed to allow developers to notify app users by email or telephone -- but not in-app -- about outside payment options.)

Apple responded to Epic's move by removing Fortnite from the iOS app store, after which Epic alleged in an antitrust complaint that Apple monopolized the iOS app distribution market, and unlawfully required developers to use its payment processing system.

U.S. District Court Judge Yvonne Gonzalez Rogers in Oakland, California ruled after a 16-day trial in 2021 that Epic failed to prove its anti-trust claims, but that Apple's anti-steering policy -- which prohibited developers from offering in-app links to outside payment platforms -- violated California's unfair competition law.

She issued an injunction requiring Apple to allow developers to add in-app links to payment options outside Apple's platform.

Both Apple and Epic appealed to the 9th Circuit, which initially stayed Rogers' injunction. But in April, that court upheld Rogers' entire order -- including the injunction, which will go into effect as soon as the 9th Circuit finalizes its decision.

On Monday, Apple told the appellate judges it planned to ask the Supreme Court to review the injunction on the grounds that it is too broad because it affects all developers nationwide, not just Epic.

“There is good cause for the stay because if the mandate issues, Apple will be required to change its business model to comply with the injunction before judicial review has been completed,” the company wrote.

But Epic counters in its new papers that Apple's petition for Supreme Court review “has no realistic chance of success.”

Epic writes that the appellate judges “correctly decided the case on the basis that Epic has a far broader interest than merely as a developer of its own apps -- but also as a distributor of apps through its own store, and as a provider of a payment solution.”

The 9th Circuit is expected to decide by Friday whether to stay the injunction.