Apple vs. Epic Battle Continues With No Jury, Epic Admits Avoiding Fees

The trial of Apple vs. Epic is commencing. There will be no jury and Epic has already admitted to evading Apple fees with its app.

The story of Apple vs Epic is continuing. Back in mid August, Epic sued Apple after Fortnite got kicked out of the Apple app store. Apple made the decision after the game offered a discount to users who pay for V-Bucks outside of the Apple pay system. Apple cited this as the reason and banned the game. Epic cried foul and said that this is anti-competitive behavior. So, they filed a lawsuit against Apple on those grounds.

Of course, the story quickly escalated to being about more than just one game. Epic is a big developer who also happens to develop the Unreal Engine – one of the industries biggest game engines. Apple seemed poised to take down the Unreal Engine, but a judge ruled later on in August that the Unreal Engine can stay in the app store. The reason, said the judge, is that banning the game engine would create a lot of unnecessary collateral damage with other game developers being affected. That interesting legal decision may have come partly thanks to an assist from Microsoft.

While it seemed like the story would end there, things escalated at the end of August when Apple banned Epics developer account. Many worried that this added ban would affect the Unreal Engine, but as we found out, Unreal Engine is still left unaffected. What this does mean is that it is no longer possible to purchase any game made by Epic through the Apple app store. Some consider the move by Apple to be vindictive. Regardless, that is where things seemed to take a pause as things got settled on the legal side of things.

Now, we are seeing the next stage of this legal battle. According to WCCFTech, Apple and Epic have decided that the case will be a trial by judge. In other words, there is not going to be a jury in this case. From the report:

Apple and Epic have both decided that their court proceedings should be handled in a bench trial by a judge, and not by a jury. Apple had previously intended to go for a jury trial, but in the latest filings, the company has agreed to opt for a bench trial instead.

On Monday, September 28, Judge Yvonne Gonzalez Rogers advised both Apple and Epic that a jury trial be held to understand what real people think because the case is important for anti-trust law. During the hearing, Apple was inclined to go for a jury trial, while Epic did not seem to favor it. Both companies had to file their responses by Tuesday, in which they said that they would opt for a bench trial by a judge.

Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the Court, and not by a jury. Therefore, with Epic’s consent, Apple hereby withdraws its demand for a jury trial pursuant to Federal Rule of Civil Procedure 38(d). The parties respectfully request that the case (including any claims and counterclaims) proceed to a bench trial on a schedule determined by the Court.

As we now stand, the case is in situation where it might get hearing dates in July 2021. If Monday’s hearing was an example of things to come, we are in for an interesting court battle.

Already, with respect to Fortnite, the judge has already expressed annoyance at Epic with how it handled itself with respect to Fortnite. That sentiment has been recently noted as well. From WRAL Tech Wire:

In the high-stakes antitrust trial between Epic Games and Apple (with a Google fight looming), Epic concedes that it was clearly prohibited by contract to provide a payment workaround for app store purchases that it is calling a “tax” but also says the bypass was not “unlawful.”

Get this latrest reasoning from Epic in a filing made earlier this week about the legal firestorm that ignited like a California wildfire in August:

“On August 13, 2020, Epic provided Fortnite users on iOS with the choice of an alternative payment processing solution called Epic Direct Pay, which offered consumers lower prices and better customer service than Apple’s payment processor, IAP.

“Epic does not dispute that this competing payment solution was prohibited by contractual provisions that Apple has unlawfully forced on developers like Epic who sell in-app digital content, even though Apple allows numerous other app developers to use competing solutions. Epic also does not dispute that, if Apple’s contracts were lawful, all in-app purchases made by Fortnite users on iOS would be subject to Apple’s 30% tax, even though Apple has exempted numerous other developers from this tax. But Epic denies that its refusal to abide by Apple’s anti-competitive scheme was in any way wrongful.”

It’s difficult to say whether or not there will be very much in the way of additional developments until the new year. Still, we are likely in for an ugly court fight between the two companies. For a number of casual observers, it’s difficult to really feel sympathy for either side in this case. On the one hand, Epic clearly decided to flaunt the rules. They are definitely not denying that in court. On the other hand, Apple has been pretty vindictive by banning the developer account and isn’t exactly winning over support by demanding 30% of all in-app purchases. Still, that is not exactly going to stop the court case from proceeding. It’ll be interesting to see what precedence this case sets – if anything at all.

Drew Wilson on Twitter: @icecube85 and Facebook.



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