Court overturns pause in Epic Games ruling ahead of Apple’s Supreme Court bid

Epic Games just convinced the U.S. Court of Appeals for the Ninth Circuit to overturn an earlier ruling that had blocked the case from being sent back to the district court while Apple sought review from the Supreme Court. Here are the details.

Picking up where we left off

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit granted Apple’s motion to stay sending the case back to the district court to determine what fee it could charge on alternative payments, as the company prepared to seek a Supreme Court review.

Following the court’s decision, Epic filed two motions. The former claimed that Epic did not have sufficient time to prepare a denial of Apple’s stay request, while the latter asked the court to deny Apple’s initial stay request.

At the time, Epic said Apple’s stay motion was “another delaying tactic to prevent the court from establishing meaningful and permanent limits on Apple’s ability to charge unwanted fees on third-party payments.”

That prompted Apple to file a response, arguing that there was no reason to revisit the stay and that keeping it in place would avoid unnecessary proceedings in lower courts while it sought review from the Supreme Court.

Epic, in turn, filed a response arguing that Apple had not demonstrated a real need for a stay, and adding that an appeal to the Supreme Court would not eliminate the need for additional proceedings in the lower court so that both processes could move forward at the same time.

Which brings us to today.

The court cancels the suspension

Earlier this evening, the U.S. Court of Appeals for the Ninth Circuit granted Epic’s motion for reconsideration, reversing its earlier decision to stay the warrant.

In its decision, the court said it was persuaded by Epic’s arguments that Apple failed to demonstrate that the Supreme Court was likely to take up the case or overturn the decision, as well as by Epic’s argument that “Apple failed to demonstrate good cause to uphold our prior stay order.”

From the decision:

Apple has not demonstrated that a possible interim procedure would cause it irreparable harm if our decision is not suspended. Instead, Apple says a referral proceeding on the commission issue would be “premature.” Even if the Supreme Court agreed with Apple’s arguments, other summary proceedings would still be pending, including on the commission issue, and those proceedings would likely be similar, if not identical, regardless of certiorari.

Accordingly, we conclude that Apple has failed to meet the requirements of Federal Rule of Appellate Procedure 41(d).

The document explains that “Federal Rule of Appellate Procedure 41(d) requires that a party seeking to stay the warrant pending the filing of a petition for certiorari ‘must demonstrate that the petition would raise a substantial issue and that good cause exists for a stay.’

You can read the full document below:

Following the ruling, Epic Games took to X to claim that “Apple charging unwanted fees on purchases made outside of the App Store harms consumers and developers and violates the law.” Epic Games CEO Tim Sweeney added:

We have contacted Apple for comment and will update this article if we receive a response.

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