Apple Makes No Attempt to Defend Stay of App Store Injunction, Says Epic

The 9th U.S. Circuit Court of Appeals made clear that it stayed its mandate pending Apple’s forthcoming cert petition at the U.S. Supreme Court “only because Apple had barely satisfied that court’s requirement that an applicant articulate non-frivolous arguments,” said Epic Games’ SCOTUS reply brief Monday in support of its emergency application to Justice Elena Kagen to vacate the stay (see 2308070003).

The stay is preventing enforcement of the injunction that Epic won in the district court to enjoin Apple from imposing its anti-steering rules against mobile app developers that use the App Store. The rules prohibit developers from directing iPhone users to less-expensive ways to pay for digital goods they use in their apps. Kagan is Supreme Court justice for the 9th Circuit.

The 9th Circuit’s “exceedingly lax standard” is confirmed by its own precedent “and its practice of staying its mandate five times more frequently than almost any other circuit," said Epic’s reply. Apple “ignores all that,” it said. Its argument that the 9th Circuit applies a more rigorous standard “lacks merit, but it is also irrelevant,” it said.

Even on Apple’s faulty understanding of the 9th Circuit’s standard, SCOTUS should grant Epic’s emergency vacatur application “for either of two independent reasons, which relate separately to the two different stays” that the 9th Circuit entered in this case, said Epic’s reply. First, “and most obviously,” Apple makes no attempt to defend the stay of the injunction pending appeal, it said. That initial stay, from 2021, “rests on a preliminary reading of California law that the 9th Circuit “has since rejected on the merits and that Apple has since abandoned,” it said. Whatever the formal status of the appellate mandate, the “antecedent stay” of the injunction “indisputably rests on a pure error of law, and must be vacated,” it said.

Second, Apple doesn’t dispute there’s “no reasonable prospect” that SCOTUS will grant Apple cert “and reverse in this case,” said Epic’s reply. Apple “merely contends” its forthcoming petition will raise a substantial question, it said. Apple thus doesn’t even “attempt to satisfy the standard set” by SCOTUS precedents for staying the appellate mandate, it said.