Apple to Seek SCOTUS Review of iOS App Injunction, It Tells 9th Circuit

Apple said Monday it plans to file a cert petition at the U.S. Supreme Court challenging the 9th U.S. Circuit Court of Appeals affirmation of the district court’s injunction barring Apple from enforcing its anti-steering rules against U.S. iOS app developers arising from the antitrust litigation against Epic Games (see 2304250055. Apple’s motion (docket 21-16506) asked the 9th Circuit to stay the mandate in its decision, pending the resolution of its cert petition.

The petition will raise“substantial questions of law ,” and there’s “good cause for a stay,” said Apple’s motion. The petition won’t be “frivolous or filed for purposes of delay,” it said. Epic immediately wrote the 9th Circuit to oppose the stay and said it will file a brief in opposition before Friday when the mandate will issue, absent the stay.

The district court issued its “sweeping injunction,” even though Epic, as the only named, didn’t seek or obtain class certification, and didn’t prove an injunction in favor of non-parties “was necessary to make it whole,” said Apple’s motion. The injunction can’t be “reconciled” with Federal Rule of Civil Procedure 23(b)(2), “which expressly addresses injunctive relief extending beyond the named plaintiff,” it said. It also exceeds the district court’s authority under Article III, “which limits federal court jurisdiction to actual cases and controversies,” it said.

The panel’s decision affirming the injunction departs from Supreme Court and 9th Circuit precedent saying an injunction can’t be “any broader than necessary to make the plaintiff whole,” and that relief can’t “otherwise extend beyond the named plaintiff without class certification under Rule 23,” said Apple’s motion. SCOTUS “has recently and repeatedly signaled concern with the use of such universal injunctions in single-plaintiff actions and is poised to resolve this controversial practice,” it said.

The 9th Circuit’s decision on Article III injury was based on “unsubstantiated economic theories proffered on appeal,” said Apple’s motion. But those theories were “never advanced, let alone proven, at trial, it said. They run “headlong” into the Supreme Court’s “repeated pronouncements that a federal-court plaintiff must prove the prerequisites to standing,” it said. Those “weighty legal questions” warrant SCOTUS review, “and, at the very least, constitute substantial questions of law,” it said.

There’s good cause for the stay because if the mandate issues, “Apple will be required to change its business model to comply with the injunction before judicial review has been completed,” said Apple’s motion. “The undisputed evidence establishes that the injunction will limit Apple’s ability to protect users from fraud, scams, malware, spyware, and objectionable content,” it said. There would be no prejudice to Epic from a stay,” it said. Apple isn’t an iOS app developer and doesn’t “stand to benefit from the injunction,” it said. In light of those “extraordinary circumstances,” a stay pending the resolution of Apple’s cert petition “is warranted,” it said.