DOJ antitrust lawyers ask for 10 minutes to speak in Epic’s favor at upcoming appeal

5 days ago 12

DOJ antitrust lawyers have asked to make ten minutes of oral argument during the upcoming Apple versus Epic Games appeal. The Department of Justice wants to follow up its previous written brief, which argues that the court erred in finding mostly in Apple’s favor.

Technically, the DOJ isn’t appearing for either side, but the argument it makes supports Epic’s contention that the App Store is in breach of 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 steer app users to external payment platforms, but concluded that the company did not meet the legal tests to be considered a monopoly – and thus did not have to permit competing app stores for iOS apps. Both Apple and Epic Games filed appeals on different aspects of the ruling.

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, is arguing that the court made a legal error when considering the anti-steering issue.

The Department of Justice antitrust division filed what’s known as an amicus brief – a statement from an uninvolved party which is intended to help the court reach the correct decision. Although technically neutral, labelled as “in support of neither party,” the DOJ’s submission favors Epic’s argument that Apple does have monopoly control of the iOS app market.

Additionally, the attorneys general of 35 US states have also joined forces to submit an amicus brief that again argues that Apple does have monopolistic powers.

DOJ antitrust lawyers want to present oral arguments

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

Officials from the U.S. Department of Justice have asked to take part in oral arguments next month in “Fortnite” creator Epic Games’ appeal of a court loss against Apple, according to court documents filed Friday […]

Antitrust officials said they did not support either side in the disputes at hand but were concerned that the lower court’s ruling had improperly interpreted the Sherman Act, the country’s primary antitrust law. On Friday, U.S. officials asked for 10 minutes of argument time.

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

Apple wants the 10 mins to come out of Epic’s time

Each side will have a very limited time to present its own oral arguments. In recognition of the fact that the DOJ is effectively supporting Epic’s side of the appeal, Apple has asked that the 10 minutes be deducted from the time allotted to Epic’s lawyers.

9to5Mac’s Take

The original ruling was a compromise – one that we predicted – and it’s possible that the appeal decision will likewise be somewhere between the two positions. 

However, it seems unarguable that Apple has the tougher challenge here. It is not only arguing against Epic Games, but also effectively against the position stated by the Department of Justice and a whole bunch of US states. It is also flying in the face of proposed antitrust legislation, which may eventually render the ruling here irrelevant. 

It seems likely that the court will give the go-ahead for the DOJ to speak. Given the department’s position is that the court took an overly narrow interpretation of antitrust law in ruling in favor of Apple, 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 will eventually be decided in the US Supreme Court.

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