DOJ antitrust lawyers ask for 10 minutes to speak on behalf of Epic on upcoming appeal

DOJ antitrust attorneys have asked to do 10 minutes of oral argument in Apple’s upcoming appeal against Epic Games. The Justice Department wants to follow up on its earlier written brief, which argues that the court erred in finding primarily in favor of Apple.

Technically, the DOJ doesn’t appear for either party, but the argument it makes supports Epic’s claim that the App Store violates antitrust laws…

Background

Epic Games sued Apple for not allowing it to use its own payment platform instead of in-app purchases through the App Store, with Apple taking a 30% cut.

The court ruled that Apple must allow developers to direct app users to external payment platforms, but concluded that the company failed to meet the legal criteria to be considered a monopoly – and did not therefore not to allow competing app stores for iOS apps. Apple and Epic Games have filed appeals on different aspects of the decision.

Epic is appealing the ruling that the App Store is not a monopoly, arguing that there is no other way for developers to sell iPhone apps other than through Apple. The iPhone maker, in turn, argues that the court erred in law when testing the anti-direction issue.

The Justice Department’s Antitrust Division has filed what’s called an amicus brief — a statement from an uninvolved party that’s meant to help the court make the right decision. Although technically neutral and labeled as “not supporting either party”, the DOJ submission furthers Epic’s argument that Apple has monopoly control of the iOS app market.

Additionally, attorneys general from 35 US states have also joined forces to submit an amicus brief that again argues that Apple has monopoly powers.

DOJ antitrust lawyers want to present oral arguments

Reuters reports that the DOJ has now asked the court for permission to speak for 10 minutes during the appeal.

U.S. Justice Department officials have asked to participate in oral arguments next month in ‘Fortnite’ creator Epic Games’ appeal of legal loss against Apple, according to court documents filed Friday. […]

Antitrust officials said they did not support either party in the ongoing disputes, but were concerned that the lower court’s decision misinterpreted the Sherman Act, the nation’s primary antitrust law. On Friday, US officials requested 10 minutes of oral argument time.

“The United States believes that its participation in the oral argument would be helpful to the court, particularly in explaining how errors (in the interpretation of antitrust law) could materially harm the application of antitrust law beyond context. specific to this case,” the Justice Department wrote in the filing.

Apple wants the 10 minutes out of Epic’s time

Each party will have a very limited time to present its own oral arguments. Acknowledging that the DOJ does indeed support Epic’s side on appeal, Apple requested that the 10 minutes be deducted from the time allotted to Epic’s attorneys.

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The original decision was a compromise – the one we predicted – and it’s possible that the appeal decision also falls somewhere between the two positions.

However, it seems indisputable that Apple has the toughest challenge here. This is not only arguing against Epic Games, but also effectively against the position laid out by the Department of Justice and a whole bunch of US states. It also flies in the face of proposed antitrust legislation, which could potentially render the decision here moot.

It seems likely that the court will give the DOJ the green light to speak. Given that the department’s position is that the court took too narrow an interpretation of antitrust law in ruling in Apple’s favor, it seems reasonable that this time be deducted from Epic’s time.

Two things are certain: it’s going to be a tough fight, and it’s going to end up being decided by the Supreme Court of the United States.


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