Epic files U.S. Supreme Court appeal in Apple antitrust case

Epic has filed a Writ of Certiorari asking the U.S. Supreme Court to review a lower court’s ruling on its antitrust case against Apple.

The petition is asking the Supreme Court to rule on broader antitrust questions as governed by the Sherman Act. Epic argues that restraints on business “that have both pro- and anticompetitive effects is unlawful if a ‘less-restrictive alternative’ will achieve the same benefits while harming competition less.”

The Fortnite publisher and Unreal Engine maker is asking the court to determine:

1. If a “less-restrictive alternative” must be free from costs to Apple.
2. If a “less-restrictive alternative” doesn’t exist, is the restraint invalid if the harm to competition substantially outweighs the restraint’s procompetitive justification.

In past proceedings, Epic argued that Apple has an unfair monopoly on apps on iOS and its in-app purchasing system, allowing the tech giant to make billions on transaction fees.

Epic v Apple Saga continues

This motion is the latest in Epic Games’ saga to take on Apple’s closed app distribution and payments ecosystem which began in 2020. Fortnite was removed from the App Store after giving players an alternative method to make in-app purchases, violating iOS policies.

In 2021, Judge Yvonne Gonzalez Rogers ruled that Apple’s closed App Store and security restrictions didn’t violate antitrust law. However, the ruling also said that Apple couldn’t maintain anti-steering rules that prevented users from learning about alternate payment options.

In April 2023, the U.S. Ninth Circuit Court of Appeals (largely) upheld this status quo. However, even Epic’s minor victory has not truly gone into effect. Supreme Court Justice Elena Kagan declined to remove a stay that allowed Apple to delay implement these policy changes in August.

Escalating this decision to the Supreme Court is Epic’s logical next step following its failed appeal. However, it’s not clear if the court will decide to take on the case.

“Unlike other appeals, no party has a right to be heard by the Supreme Court, so just statistically this is an unlikely avenue for Epic to come out a winner,” said Richard Hoeg, a lawyer at Hoeg Law, told GamesBeat. “That said, the approach they’ve taken is a smart one, asking for clarification of antitrust jurisprudence where they believe they’ve identified a conflict in existing precedent. Their document is a bit aggressive in its descriptions of what happened in the lower courts, but I’m not going to hold zealous advocacy against anyone.”

Epic is now waiting and hoping that the Supreme Court will allow them to take another bite at Apple. The filing is available to read here.