Apple loses bid to delay Epic ruling indefinitely

“Apple does nothing unless it is forced to do it.” — Epic attorney Gary Bornstein.

From The Verge’s “Judge orders Apple to allow external payment options for App Store by December 9th, denying stay” posted Tuesday:

Judge Gonzalez Rogers was skeptical of Apple’s request particularly because it asked for an indefinite stay of the injunction despite saying Apple just wanted more time to evaluate risks. “You haven’t asked for additional time. You’ve asked for an injunction which would effectively take years,” she said. “You asked for an across-the-board stay which could take 3, 4, 5 years.” Perry responded that Apple wanted to delay the changes until the case was resolved — saying that it was confident “we’re going to win the appeal.”

That didn’t sway the judge: in her order Tuesday evening, she accused Apple of wanting “an open-ended stay with no requirement that it make any effort to comply,” and suggested that “Apple has provided no credible reason for the Court to believe that the injunction would cause the professed devastation,” with regards to the company’s argument that it would be harmed by adding external links to alternate payment systems within apps.

Apple says it plans to appeal to the Ninth Circuit for a stay, since it didn’t get one from Judge Gonzalez Rogers. “Apple believes no additional business changes should be required to take effect until all appeals in this case are resolved. We intend to ask the Ninth Circuit for a stay based on these circumstances,” writes an Apple spokesperson.

Pending a stay of some kind, the injunction is scheduled to take effect on December 9th.

My take: Apple in court is Apple at its worst.

18 Comments

  1. Gregg Thurman said:
    Apple to Roger’s “Go to hell, stronger message to follow”.

    Roger’s acts like someone on a power trip.

    0
    November 10, 2021
  2. Jerry Doyle said:
    While I believe Walmart no longer has this legal policy, the company many years ago always exhausted all legal recourses available, even involving modest and petty sums of monies, etc. I inquired why pursue that legal path when it seems more cost effective at times to resolve the dispute at the earliest and lowest possible judicial level. The response was Walmart wanted to send an explicit legal message to anyone filing suit against the company that it would be a long, laborious and costly journey and that such a legal strategy would result in less legal suits filed against the company, especially frivolous suits. Yet, I do not believe that Walmart stayed with that legal strategy.

    In summary, whatever Apple’s legal strategy may be there is one message it sends clearly: if you file a suit against us be prepared for a long, laborious and expensive legal journey through all the convoluted judicial paths to resolution.

    4
    November 10, 2021
    • Gregg Thurman said:
      While I believe Walmart no longer has this legal policy

      I think they do, they just don’t have to pursue it as they did before.

      0
      November 10, 2021
    • Robert Paul Leitao said:
      Jerry: Do you shop at Walmart? I read on the side of an 18-wheeler the company’s newest slogan is: “Save Money. Live Better.” Do you think the slogan is accurate? Do consumers save money and live better by shopping at Walmart? I see the trucks on the freeway but rarely shop at the stores.

      0
      November 10, 2021
  3. Judge Albright in the Western District of Texas is partially to blame for Apple’s increasingly zealous response to lawsuits. Albright literally invites patent trolls to take a swing at Apple and other firms in his kangaroo court.
    “In the first four months of 2020, 258 new patent cases were filed in the Western District. That’s an eightfold increase over the same period in 2018, before Judge Albright was seated.” – Source: Patent Progress dot org
    Beware those who attempt to steal or corrupt inventions Apple employees sweated long and hard to craft. However, every firm with deep enough pockets I’ve ever worked for or heard tell of has never hesitated to consult counsel. Never.
    Corporate lawyers work in the HQ of every major corporation, filing patent applications, writing letters and hiring outside counsel when the letter doesn’t get the proper response. These lawyers do not project the friendly image of a CEO addressing a conference. They are wolves in expensive suits. EPIC has many lawyers on retainer. As a major investor, Tencent is contributing to Epic’s legal defense. They have very deep pockets along with Chinese government oversight.

    4
    November 10, 2021
  4. Michael Goldfeder said:
    The judge issued an order based solely on the California Unfair Competition Law that is to be implemented on a nationwide basis with an injunction. That violates the US Constitution Commerce Clause and Apple has a legitimate claim in that regard on appeal.

    Since a Constitutional issue has been invoked, I suspect this will eventually reach SCOTUS. A state statute cannot be enforced outside its borders on the remaining states. This will be interesting to see what eventually happens.

    9
    November 10, 2021
  5. Gregg Thurman said:
    “Apple does nothing unless it is forced to do it.” — Epic attorney Gary Bornstein

    Only philanthropists give money away, and even then there are conditions to the gift.

    3
    November 10, 2021
  6. Kirk DeBernardi said:
    “Apple does nothing unless it is forced to do it.”
    — Epic attorney Gary Bornstein.

    “Apple does a lot it is not forced to do.”
    — Kirk DeBernardi

    17
    November 10, 2021
    • Jerry Doyle said:
      @Kirk DeBernardi: Precious brother Kirk. Just precious 🙂

      0
      November 10, 2021
  7. Fred Stein said:
    Thanks Kirk. Succinct and smart. Love it.

    2
    November 10, 2021
  8. Fred Stein said:
    The market dipped slightly in an overall consolidation trend. No concern.

    The ruling is fine for Apple. 1) It will have minor impact as most users and most developers will happily pay Apple’s modest fee for the safety and ease of use. 2) Once Apple complies, there’s no remaining legal basis against Apple’s App Store, whether in courts or by regulators.

    2
    November 10, 2021
  9. Gary Morton said:
    Tech companies whose business model is based on selling ads have led the uninformed to believe that the internet is “free”. Judge Rogers appears to believe that setting-up, maintaining, and constantly evolving an on-line store must cost essentially zero. His ruling posits that vetting suppliers to ensure their products work and are safe, shielding store goers of criminals (malware and viruses), and providing valuable shelf space to suppliers is something that on-line store owners should do as a matter of charity. Would he would rule in favor of LG if LG sued Walmart to allow customers to walk into a Walmart store, choose the flatscreen they wanted, access their phone in the store through Walmart’s network, pay LG directly, and then walk out of the store with the product? Why should Walmart get anything for that transaction, because, heck at the margin, it costs Walmart very little to put that one TV on the shelf…. It boggles my mind how some judges rule in business related cases.

    4
    November 10, 2021
    • David Emery said:
      Actually, that’s a misreading of her (judge is female) finding. She might not believe that Apple is entitled to a full 30%, but her ruling was pretty solid that Apple is entitled to charge developers for the App Store, as provided in the contract. The ruling is pretty narrow, saying that Apple must let developers include a link to get information on other ways to get stuff. And that’s ALL the ruling says.

      4
      November 10, 2021
      • Gregg Thurman said:
        The ruling is pretty narrow, saying that Apple must let developers include a link to get information on other ways to get stuff.

        But not a direct link for payment.

        0
        November 10, 2021
  10. Daniel Epstein said:
    Given the legal process and its various procedures Apple would mostly have had to appeal to the ruling judge first before taking the case further. Hard to expect the judge to overrule themselves easily unless dramatic new evidence was presented. Of course it is interesting the judge says “Apple has provided no credible reason for the Court to believe that the injunction would cause the professed devastation,” with regards to the company’s argument that it would be harmed by adding external links to alternate payment systems within apps.”
    Somehow that might seem presumptuous on the judges part. Who would pay Apple back if it is or has been harmed on this issue? Of course if the judge was really worried about how long Apple could delay the ruling the judge could grant a shorter stay to revisit the issue so Apple couldn’t completely stall. Still seems like the judge is going to end up being involved in writing contract terms. Not usually part of the job.

    0
    November 10, 2021
    • David Emery said:
      Again, IANAL, but I -think- the legal principle is that financial damages can always be remedied by the courts, i.e. if Company X loses money and that decision is overturned, then Company Y can always pay Company X. The standard for ‘irreparable harm’ is generally expected to be other than financial.

      Any lawyers out there who can clarify/correct me?

      0
      November 10, 2021
  11. Gregg Thurman said:
    It seems to me that all confusion over what Apple can, or can not, do comes from those without the benefit of legal training, and are responding to cursory readings of a complex ruling. I know I had to thoroughly reread Foss’ understanding of YGR’s ruling several times before I fully understood the ruling’s nuances. Although requiring Apple to rewrite developer rules, in order to comply with a very narrow ruling, it doesn’t impact Apple nearly as much as many would have you believe. The real issue is the application of California-specific law on a national scale, or forking developer rules to accommodate California law and those outside of California, the latter being unrealistically onerous.

    If you are not a lawyer please say so in your opinions. It helps others to judge the quality of your opinion.

    3
    November 10, 2021

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