2 More Amicus Briefs Back Apple’s Petition to Defeat Anti-Steering Injunction

The App Association, plus TechFreedom and the Washington Legal Foundation (WLF), in separate amicus briefs Wednesday, joined other groups (see 2310310001) in support of Apple’s cert petition (docket 23-344) at the U.S. Supreme Court to set aside the 9th U.S. Circuit Appeals Court’s affirmation of the U.S. District Court for Northern California's injunction that bars Apple from enforcing its anti-steering rules against all U.S. iOS app developers (see 2310030002).

Most app developers “benefit from the current Apple ecosystem,” including its anti-steering rules, said the App Association’s brief. Small and mid-sized developers weren’t parties to the antitrust litigation that Epic Games brought against Apple that gave rise to the injunction, and the district court didn’t take evidence “on how the injunction would affect them,” it said.

The nationwide injunction “is especially inappropriate here because it effectively overrides the settlement that Apple reached with a class of app developers” in Cameron v. Apple, said the App Association’s brief. Though Apple provided $100 million in monetary relief, plus “meaningful” injunctive relief, the developer class in Cameron didn’t insist that the anti-steering provision be lifted.

Nor would it have made sense for them to do so, “given that most developers are not affected by the anti-steering provision,” said the App Association brief. By granting nationwide relief to Epic, the district court “effectively rewrote the Cameron settlement to include a term that neither Apple nor the developer class requested,” it said. SCOTUS should grant review and make clear that opt-outs like Epic can’t obtain “what amounts to class-wide relief in solo litigation where the affected parties are neither present nor adequately represented by the plaintiff,” it said.

SCOTUS has been reluctant to "delve" into the “thorny” questions of when nationwide injunctions are “appropriate,” said the TechFreedom/WLF amici brief. Are they permitted by the Administrative Procedure Act’s “express language”? Do district judges always maintain the inherent authority to issue such broad relief? These are “knotty questions” that SCOTUS “will likely have to unravel one day,” it said.

But Apple’s petition doesn’t ask SCOTUS “to decide all these vexing issues at once,” said the TechFreedom/WLF brief. It’s true that the question presented is drafted in a way that SCOTUS “can choose to make broad statements about the propriety of nationwide injunctions if it wants to go down that path,” it said. But this case also gives SCOTUS the chance “to issue a narrower ruling about when nationwide injunctions are inappropriate,” it said.

The “horizontal federalism” problems with allowing California to regulate conduct outside its borders applies to all attempts to apply California’s Unfair Competition Law “extraterritorially,” said the TechFreedom/WLF brief. But the problem “is exacerbated when federal courts issue a nationwide injunction that extends the reach of California’s law beyond its borders,” it said. Those separation-of-powers and vertical federalism problems “also warrant granting” Apple’s petition and reviewing the 9th Circuit’s affirmation of the district court’s injunction decision, it said.