Epic Games is appealing its effective loss (on nine of 10 counts) in a major lawsuit it filed against Apple seeking to prove that Apple maintains a monopoly over iOS apps, and it has the support of the State of Indiana, through the Office of the Attorney General, and 34 other states. The bipartisan coalition of states backs Epic games in seeking changes that would mean Apple would receive a smaller share of App Store transactions. On January 27th, amicus briefs were filed with the U.S. Court of Appeals for the Ninth Circuit by a bipartisan coalition of 35 state attorneys general, Microsoft, and the Electronic Frontier Foundation in Epic Games, Inc. v. Apple, Inc., No. 21-16506. Epic and Apple are each appealed the counts which they lost (Apple only failed to persuade the court on a single California unfair competition count), with the U.S. Department of Justice Department filing a brief supporting neither Apple nor Epic, but criticizing the lower court ruling over “several legal errors that could imperil effective antitrust enforcement, especially in the digital economy.” Epic contends the ruling “would upend established principles of antitrust law and undermine sound antitrust policy.” The 35 states question the trial court’s interpretation of a “unilateral contract” under the Sherman Act, and failed to balance the overall anti-competitive effects of Apple’s restraints.” The states’ brief contends “Apple’s conduct has harmed and is harming mobile app developers and millions of citizens [in the amici states]. Meanwhile, Apple continues to monopolize app-distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry. Apple must account for its conduct under a complete rule of reason analysis.
