20-09-18 Epic Reply ISO Motion For PI Against Apple

Case 4:20-cv-05640-YGR Document 90 Filed 09/18/20 Page 1 of 21
1 Paul J. Riehle (SBN 115199)

[email protected]
2 FAEGRE DRINKER BIDDLE & REATH LLP
Four Embarcadero Center
3 San Francisco, California 94111
Telephone: (415) 591-7500
4 Facsimile: (415) 591-7510
5 Christine A. Varney (pro hac vice)

[email protected]
6 Katherine B. Forrest (pro hac vice)
[email protected]
7 Gary A. Bornstein (pro hac vice)
[email protected]
8 Yonatan Even (pro hac vice)
[email protected]
9 Lauren A. Moskowitz (pro hac vice)
[email protected]
10 M. Brent Byars (pro hac vice)
[email protected]
11 CRAVATH, SWAINE & MOORE LLP
825 Eighth Avenue
12 New York, New York 10019
Telephone: (212) 474-1000
13 Facsimile: (212) 474-3700
14 Attorneys for Plaintiff Epic Games, Inc.
15 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
16 OAKLAND DIVISION
17
18
Case No. 4:20-CV-05640-YGR
19 EPIC GAMES, INC.,
REPLY MEMORANDUM OF POINTS
20 Plaintiff, AND AUTHORITIES IN SUPPORT OF
PLAINTIFF EPIC GAMES, INC.’S
21 vs. MOTION FOR A PRELIMINARY
22 INJUNCTION
APPLE INC.,
23 Date: September 28, 2020 at 9:30 a.m. (via
Defendant. Zoom Platform)
24
Courtroom: 1, 4th Floor
25 Judge: Hon. Yvonne Gonzalez Rogers
26
27
28
EPIC’S REPLY MEMORANDUM CASE NO. 4:20-CV-05640-YGR

1 TABLE OF CONTENTS
2 Page
3 TABLE OF AUTHORITIES ......................................................................................................... iii
4 TABLE OF CITED DOCUMENTS .............................................................................................. iv
5 I. LEGAL STANDARD ..........................................................................................................3
6 II. EPIC IS HIGHLY LIKELY TO SUCCEED ON THE MERITS. .......................................4
7 A. Apple’s Conduct Violates Section 2 of the Sherman Act. .......................................4
8 1. Apple has a monopoly in the iOS App Distribution Market. ......................4
9 2. Apple unlawfully maintains its app distribution monopoly.........................5
10 B. Apple’s Conduct Violates Sections 1 and 2 of the Sherman Act. ...........................7
11 1. Apple ties app distribution to in-app payment processing. ..........................7
12 2. Under the rule of reason, Apple’s conduct has anti-competitive
effects. ..........................................................................................................9
13
3. Apple’s procompetitive justifications are pretextual. ..................................9
14
III. EPIC WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION. ..............10
15
IV. THE BALANCE OF HARMS STRONGLY FAVORS EPIC. .........................................12
16
V. EPIC’S REQUESTED RELIEF WOULD FURTHER THE PUBLIC INTEREST. ........14
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EPIC’S REPLY MEMORANDUM ii CASE NO. 4:20-CV-05640-YGR

1 TABLE OF AUTHORITIES
2 Cases Page(s)
3
Acquaire v. Canada Dry Bottling Co.,
4 24 F.3d 401 (2d Cir. 1994) ..................................................................................... 11, 12
5 FTC v. Qualcomm Inc.,

969 F.3d 974 (9th Cir. 2020)........................................................................................ 14
6
Germon v. Times Mirror Co.,
7 520 F.2d 786 (9th Cir. 1975)........................................................................................ 12
8 Milsen Co. v. Southland Corp.,
9 454 F.2d 363 (7th Cir. 1971)........................................................................................ 12
10 Newcal Indus., Inc. v. Ikon Office Sols.,

513 F.3d 1038 (9th Cir. 2008)........................................................................................ 5
11
Ohio v. American Express Co.,
12 138 S. Ct. 2274 (2018) ................................................................................................... 8
13 S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co.,
14 860 F.3d 844 (6th Cir. 2017)........................................................................................ 14
15 Teradata Corp. v. SAP SE,

2018 WL 6528009 (N.D. Cal. Dec. 12, 2018) ............................................................... 5
16
Theme Promotions, Inc. v. News Am. Mktg. FSI,
17 546 F.3d 991 (9th Cir. 2008).......................................................................................... 4
18 trueEX, LLC v. MarkitSERV Ltd.,
266 F. Supp. 3d 705 (S.D.N.Y. 2017) .......................................................................... 14
19
20 United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) ......................................................................................... 9
21
22
23
24
25
26
27
28
EPIC’S REPLY MEMORANDUM iii CASE NO. 4:20-CV-05640-YGR

TABLE OF CITED DOCUMENTS

1
Citation Document
2
Opening Plaintiff Epic Games, Inc.’s Notice of Motion
3
and Motion for a Preliminary Injunction and
4 Memorandum of Points and Authorities in
Support Thereof (ECF No. 61)
5
Opp’n Defendant Apple Inc.’s Opposition to Epic
6 Games, Inc.’s Motion for a Preliminary
Injunction (ECF No. 73)
7
Byars Declaration of M. Brent Byars in Support of
8
Plaintiff Epic Games, Inc.’s Motion for a
9 Preliminary Injunction (ECF No. 61-1)
10 Evans Declaration of Dr. David S. Evans (ECF

No. 62)
11
Grant Declaration of Andrew Grant in Support of
12 Plaintiff Epic Games, Inc.’s Motion for
13 Preliminary Injunction (ECF No. 63)
14 Penwarden Declaration of Nicholas Penwarden in Support

of Plaintiff Epic Games, Inc.’s Motion for a
16 Sweeney Declaration of Timothy Sweeney in Support of

Plaintiff Epic Games, Inc.’s Motion for a
18
Schiller Declaration of Philip W. Schiller in Support of
19 Defendant Apple Inc.’s Opposition to
Plaintiff’s Motion for a Preliminary Injunction
20 (ECF No. 74)
21 Schmalensee Expert Declaration of Richard Schmalensee,
Ph.D (ECF No. 78)
22
Schmid Declaration of Mike Schmid in Support of
23
Defendant Apple Inc.’s Opposition to
24 Plaintiff’s Motion for a Preliminary Injunction
(ECF No. 79)
25
Byars Reply Declaration of M. Brent Byars in Further
26 Support of Plaintiff Epic Games, Inc.’s Motion
for Preliminary Injunction (submitted herewith)
27
28
EPIC’S REPLY MEMORANDUM iv CASE NO. 4:20-CV-05640-YGR

Evans Reply Second Declaration of Dr. David S. Evans

1 (submitted herewith)
2 Grant Reply Declaration of Andrew Grant in Further
for Preliminary Injunction (submitted herewith)
4
Sweeney Reply Declaration of Timothy Sweeney in Further
for a Preliminary Injunction (submitted
6 herewith)
7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EPIC’S REPLY MEMORANDUM v CASE NO. 4:20-CV-05640-YGR

1 This preliminary injunction motion is crucial, yet narrow. Epic seeks one thing only: to
2 offer consumers an alternative payment processing service that allows consumer choice and
3 lower prices while this litigation proceeds without retaliation. The issue is less complicated than
4 the voluminous legal arguments and technical jargon before the Court suggest. Epic is prepared
5 to do everything possible to allow this Court to resolve this case in an expeditious manner. At
6 that point, should Apple prevail, it can be made whole. But during the pendency of the case,
7 consumers should not be harmed by Apple’s overwhelming retaliation against Epic.
8 Apple’s papers try to make this dispute about Apple’s innovative products, rather than
9 Apple’s practices. Many monopolists start with extraordinary products, yet courts have to step in
10 if they use their power to stifle competition. Apple also tries to make this case about speculative
11 security concerns. But Apple routinely allows third-party payment processing in other apps,
12 including Amazon and Uber. And Apple identified no evidence that Epic’s direct payment, or
13 any Epic product, posed an actual security threat. Apple’s strawman arguments should not
14 distract from what is a simple situation supported by a long line of Supreme Court cases.
15 Turning to the merits, in its Opening Brief, Epic showed that Apple is a monopolist in
16 two markets, for iOS app distribution and for iOS in-app payment processing, and that it illegally
17 maintains its monopolies through unlawful contractual ties and technical restrictions that
18 foreclose all competition. Apple does not dispute its complete control over app distribution to
19 over a billion iOS users or over in-app payment processing, nor any of the restrictions that
20 maintain that control. Yet Apple baldly asserts “it is no monopolist”, asking this Court to believe
21 that iPhones are “interchangeable” with personal computers and gaming consoles. That assertion
22 is contrary to basic antitrust principles and common sense: a Sony PlayStation does not fit in
23 your pocket but a smartphone does.
24 Apple also argues that its web of restrictions is not anti-competitive because they create
25 an “integrated service” that is the basis of its “iPhone business model”. (Opp’n 19.) But Apple
26 cannot immunize these restrictions from antitrust scrutiny by labeling them a “business model”.
27 Nor can Apple credibly insist that IAP is an inseparable aspect of the App Store—that they are a
28 “single” product—when (a) Apple already allows many apps to use alternative pay options, and
EPIC’S REPLY MEMORANDUM CASE NO. 4:20-CV-05640-YGR

1 (b) many in-app transactions occur days, months, or years after the app is downloaded from the
2 App Store. Apple also cannot dispute direct evidence of separate demand for payment
3 processing services, including (a) the robust demand for such services on eligible categories of
4 iOS apps and open platforms, and (b) Apple’s new disclosure that over the years Apple has
5 terminated the accounts of no fewer than 2,000 developers who introduced alternative payment
6 processors. It is clear that developers are clamoring for competition.
7 Apple also does not dispute that its termination of Epic from its Developer Program
8 would cause irreparable harm to Epic, Fortnite players, Epic’s Unreal Engine customers, and
9 customers of those customers—in essence, that it is dispensing collective punishment. Instead of
10 denying these harms to Epic and third parties, Apple argues that the Court should ignore them.
11 First, it argues Epic “created the current situation” by offering alternative payment processing,
12 “knowing that Apple would invoke its contractual right” to terminate Epic. (Id. at 2.) But Epic
13 is doing precisely what the Supreme Court has instructed that Epic is entitled to do: refuse to
14 comply with anti-competitive contractual conditions. Epic and the public should be protected
15 from Apple’s retaliation. Apple has no valid response.
16 Second, Apple repeatedly invokes “security” and “privacy” as justifications for
17 terminating Epic from its Developer Program, claiming that its retaliation somehow benefits
18 consumers. But Apple has not pointed to a single security issue relating to Epic’s direct payment
19 option, any of Epic’s apps, or Unreal Engine. Absent any evidence of harm to any user, Apple
20 argues that the widely used hotfix update mechanism itself was malicious. But as Epic showed
21 in its Opening papers, using hotfixes to serve updated content is common industry practice, and
22 Apple does not dispute that the Fortnite app has openly used them for years without objection.
23 Moreover, the hotfix update has come and gone, and Epic submitted several Fortnite builds
24 expressly disclosing Epic’s direct payment option. Apple rejected them all, and still proceeded
25 to terminate Epic’s Developer Program account. Apple’s retaliation is not directed against the
26 method by which Epic introduced competing payment processing functionality; Apple is
27 objecting to the fact that Epic introduced competition offering consumers lower prices. Apple is
28 not protecting consumers; it is protecting its monopoly and its bottom line.
EPIC’S REPLY MEMORANDUM 2 CASE NO. 4:20-CV-05640-YGR

1 Finally, Apple’s papers contain a number of half-truths and outright falsities intended to
2 paint Epic as a bad actor. Epic cannot catalogue them all here but notes a few examples below:
3 (1) Apple asserts that Epic eliminated IAP from Fortnite. This is false. Epic’s hotfix
4 update offered IAP and Epic direct pay side-by-side. IAP remained available in Fortnite until
5 Apple blocked IAP upon termination of Epic’s Team ID ’84 account. (Grant Reply ¶¶ 38-39.)
6 (2) Apple asserts that the August 13 release has security risks. That is false. Apple has
7 not presented a shred of evidence that there is any security issue.
8 (3) An Apple declarant asserts that in 2018, Epic breached its agreement with Sony to
9 launch cross-platform play without Sony’s consent. (Schmid ¶ 19.) That is false. Sony
10 announced the availability of cross-platform play in September 2018 with Epic as one of the first
11 participants in the new program. (Sweeney Reply ¶ 7, Ex. A.)
12 (4) Apple claims Epic brought this case to revive supposedly waning interest in Fortnite,
13 alleging a 70% decline in “interest” between October 2019 and July 2020. (Opp’n 11.) But
14 Apple cherry-picked Google Trends data concerning Google search volumes, misleadingly
15 starting from a one-week spike that took place in October 2019 when Epic ran an in-game event
16 that captured global attention. Fortnite users increased over that period. (Sweeney Reply ¶ 18.)
17 (5) Apple argues that “Epic’s own app marketplace charges users and developers a
18 commission” just like IAP. (Opp’n 6 & n.7.) But the Epic Games Store offers developers the
19 choice that Apple does not: they can use Epic’s payment processor for in-app purchases, or they
20 can use another payment processor and pay Epic nothing. (Sweeney Reply ¶ 24.)
21 (6) Apple claims it placed Fortnite billboards in Times Square and LA Live, at its
22 expense to the benefit of Epic. But the billboards actually promoted the availability of
23 Marshmello’s concert playlist on Apple Music. (Sweeney Reply ¶¶ 20-22, Ex. B.)
24 Epic looks forward to demonstrating at trial the unlawfulness of Apple’s conduct. In the
25 meantime, an injunction should issue.
26 I. LEGAL STANDARD
27 Apple does not dispute that Epic must satisfy the Winter test. (Opp’n 14.) Apple
28 nonetheless suggests that this test is harder to meet here because the injunction sought is

1 “mandatory” instead of “prohibitory”. (E.g., Opp’n 14-15.) Apple is wrong. The requested
2 injunction here is prohibitory; Epic seeks an order prohibiting Apple from retaliating against
3 Epic in any way on account of Epic’s introduction of a competitive alternative to Apple’s IAP.
4 (Opening ii (requesting an order prohibiting retaliation and undoing retaliatory actions taken).)
5 In any event, Epic satisfies the four preliminary injunction factors as applied to the relief sought.
6 II. EPIC IS HIGHLY LIKELY TO SUCCEED ON THE MERITS.
7 A. Apple’s Conduct Violates Section 2 of the Sherman Act.
8 1. Apple has a monopoly in the iOS App Distribution Market.
9 In its Opening brief, Epic established a relevant product market for distribution of apps
10 compatible with iOS to users of mobile devices running iOS: the iOS App Distribution Market.
11 Apple does not and cannot dispute its complete control over this market. Instead, Apple argues
12 in its Opposition that Epic defined the market too narrowly. Not so.
13 Apple argues that there are “alternative means to distribute Fortnite”, and therefore, that
14 the market here must include “at least” distribution on other platforms on which Fortnite can be
15 played. (Opp’n 16.) That is inconsistent with basic antitrust principles. Markets are commonly
16 defined by applying the hypothetical monopoly test, which “asks whether a monopolist in the
17 proposed market could profitably impose a small but significant and nontransitory price
18 increase” on the monopolized product to a specified set of customers. Theme Promotions, Inc. v.
19 News Am. Mktg. FSI, 546 F.3d 991, 1002 (9th Cir. 2008); (Evans Reply ¶ 57). The iOS App
20 Distribution Market accordingly includes all the ways by which app developers generally
21 (including, but not limited to, Epic) could (absent Apple’s restrictions) distribute apps to the
22 billion users of iOS devices. (Evans ¶¶ 52-54.) A hypothetical monopolist in iOS app
23 distribution could profitably impose a price increase on iOS app developers (Apple does just
24 that). That is because distributing apps to users of other platforms is not an adequate substitute,
25 from the developer’s perspective, for accessing the one billion iOS users. (Id. ¶¶ 41-42.)
26 For example, by distributing on Android, a developer does not reach the billion users of
27 iOS devices because users typically do not have mobile devices on both OSs. As for distribution
28 on game consoles, many apps require mobility or are not games playable on a console.

1 Moreover, many millions of iOS users do not have those alternative devices. And even for those
2 iOS users who do have alternatives at home, they are generally not portable and must be hooked
3 up to a television or monitor and electrical outlet; even laptop computers are too large to fit in a
4 pocket or a purse. The smartphone is unique: there is simply no other device that fits in your
5 pocket and can be used anywhere and at any time. As the data show, of the Fortnite users on
6 iOS, 63% access Fortnite only on iOS. (Sweeney Reply ¶ 17.) Those users, and iOS users more
7 generally, are not accessible through distribution on other platforms.
8 Epic also explained in its Opening brief (at 13-14), and Epic’s expert opined, how the
9 iOS App Distribution Market reflects the characteristics of the single-brand market defined in
10 Newcal Indus., Inc. v. Ikon Office Sols., 513 F.3d 1038 (9th Cir. 2008): The primary market
11 consists of OSs for smartphones or tablets; Apple has market power in the primary market; and
12 competition for smartphone (or tablet) OSs cannot constrain Apple in the aftermarkets. (Evans
13 ¶¶ 25-30; Compl. ¶¶ 156-83.) Apple contends that Epic has “no basis” to argue that
14 “components of Apple’s integrated offerings should be considered separately”, and that “this is
15 not an aftermarket case”. (Opp’n 16-17.) But Newcal is that basis, and Apple cites no support
16 that Newcal does not apply where a monopolist chooses to label its conduct in the downstream
17 market as an “integrated offering”. See Teradata Corp. v. SAP SE, 2018 WL 6528009 at *17
18 (N.D. Cal. Dec. 12, 2018) (aftermarket properly alleged despite defendant labeling its tied and
19 tying products as “integrated”). Indeed, it is Apple’s decision to contractually coerce developers
20 to “integrate” its downstream offering that constitutes Apple’s anti-competitive conduct.
21 2. Apple unlawfully maintains its app distribution monopoly.
22 Epic described in detail the web of technical and contractual restrictions Apple employs
23 to ensure that consumer apps may be distributed on iOS solely through its own App Store,
24 thereby unlawfully maintaining its monopoly over the iOS App Distribution Market. (Opening
25 12-15.) Apple does not dispute that it imposes the restrictions Epic identified. Instead, it claims
26 these are legal for two reasons, neither of which is availing.
27 First, Apple contends its technical and contractual restrictions are legal because there are
28 “alternative distribution options”. (Opp’n 18.) As discussed above, that is factually and legally

1 incorrect—there are no alternative options to distribute consumer apps to iOS users, and through
2 the restrictions, Apple maintains a complete monopoly in the iOS App Distribution Market.
3 Second, Apple says it need not provide “unfettered and uncompensated use of its own
4 technology”. (Id.) That statement mischaracterizes Epic’s argument. Microsoft is compensated
5 for its investment in Windows without forcing all transactions on Windows PCs through a single
6 store that it controls. Apple can be too. Apple just cannot use its market power to force
7 developers to use its own services to the exclusion of all others. Epic is ready, willing, and able
8 to compete by offering distribution services that would compete with Apple’s; Epic (like other
9 would-be distributors) has been blocked from doing so by Apple’s anti-competitive conduct.
10 (Sweeney ¶¶ 12-14.) Apple’s investment in iOS does not give it unfettered rights to maintain a
11 monopoly in related, downstream markets, and Apple cites no case law suggesting otherwise.
12 Apple also tries to justify its total control of all iOS consumer app distribution by
13 pointing to the need for security. (Opp’n 5.) This is a pretext. There are many methods to
14 secure a platform aside from controlling all consumer app distribution. Indeed, Apple already
15 has implemented many of those methods on iOS through the OS design, not through App Store
16 control. (Grant Reply ¶¶ 30-35.) Apple does not control all app distribution on macOS.
17 (Sweeney ¶ 10.) Apple already allows certain entities on iOS to download directly from the
18 Internet and bypass the App Store. (Grant ¶¶ 5, 14.) Apple is also aware that security could be a
19 factor on which different app stores could compete; if Apple’s App Store could in fact offer
20 better security than all other stores, Apple could use this security advantage to prevail in a
21 competitive market. Epic does not claim that Apple cannot participate in the iOS app
22 distribution marketplace. Epic argues that Apple cannot use its market power to monopolize app
23 distribution and that Apple should fairly compete in that market.
24 Finally, Apple asserts that “Epic’s antitrust theories . . . have nothing to do with Unreal
25 Engine, and thus cannot support that aspect of the requested injunction”. (Opp’n 18 n.17.) But it
26 was Apple that brought Unreal Engine into this dispute when it overreached in its retaliation
27 against Epic by threatening to destroy the ability of Unreal Engine to provide third-party user
28 tools for iOS and macOS development. Now it is absolutely relevant to Epic’s claims. For

1 assessing likelihood of success on the merits, Apple’s retaliation against Unreal Engine is further
2 evidence of the absolute power Apple wields on iOS and the lengths to which Apple will go to
3 maintain its monopolies.1 Apple’s express purpose of attacking Epic’s ability to develop Unreal
4 Engine was to force Epic into submission and ensure compliance with Apple’s anti-competitive
5 scheme. (Opp’n 28.) An injunction protecting Epic’s products including Unreal Engine would
6 curtail the scope of Apple’s anti-competitive conduct. 2
7 B. Apple’s Conduct Violates Sections 1 and 2 of the Sherman Act.
8 Apple does not dispute that it contractually conditions developers’ ability to distribute
9 iOS apps on their agreement to use solely Apple’s own IAP to process all in-app payments for
10 digital content and that it thereby forecloses all competition for the processing of such payments.
11 That is unlawful per se and rule of reason tying and monopoly maintenance. (Opening 15-23.)
12 1. Apple ties app distribution to in-app payment processing.
13 Epic has shown the first element of tying: two separate products. Under the purchaser
14 demand test, app distribution is a separate product from in-app payment processing for digital
15 content because there is demand for in-app payment processing separate and apart from demand
16 for distribution services. In-app purchases occur days, months, or years after an app has been
17 downloaded to a user’s device. But for Apple’s IAP restrictions, these purchases would be
18 between the developer and the consumer. (Evans Reply ¶ 29.) In its Opening brief (at 17), Epic
19 provided examples where software developers use different in-app payment processors than that
20 of the provider of the software distribution services. Epic also pointed to its own experience that
21 there is user demand for in-app payment processing from a provider other than Apple. (Id.)
22 Apple itself provides further examples. On September 11, 2020, Apple amended its App Store
23 Review Guidelines to liberate from its IAP requirement “app[s] . . . only sold directly by
24 [developers] to organizations or groups for their employees or students” and “app[s that] enable[]
25 1
In the same vein, to maximize its retaliatory threats to Epic, Apple recently threatened to
shut down Sign in with Apple following its termination of the ’84 account, potentially leaving
26 hundreds of thousands of Epic users locked out of their accounts. (Grant Reply ¶¶ 16-25.)
2
27 Apple argues that “Epic’s defective theory of monopoly maintenance does not provide any
legal basis for a preliminary injunction that is independent from its flawed tying theory.” (Opp’n
28 18.) If Epic is likely to prevail on monopoly maintenance, the requested injunction would be a
partial remedy. (Opening 12.)

1 the purchase of realtime person-to-person experiences between two individuals”. (Byars Reply
2 Ex. F §§ 3.1.3(c), (d).) Apple also disclosed that it previously has terminated “over 2,000
3 [developer] accounts for introducing a non-IAP payment method”. (Opp’n 8.) Clearly, separate
4 demand exists. Schmalensee ¶¶ 46-54 and Schiller ¶ 45, on which Apple relies to argue that “no
5 demand exists for IAP that is separate from distribution via the App Store” (Opp’n 20), do not
6 rebut the evidence of separate demand. 3
7 Apple also argues (Opp’n 20-21 n.19) that the two-sided nature of iOS gives Apple a
8 license to foreclose all competition in the iOS aftermarkets. But Ohio v. American Express Co.,
9 138 S. Ct. 2274, 2286 (2018), held only that both sides of a two-sided market must be
10 considered, not that all downstream aftermarkets must be considered part of the primary market
11 if the primary market is two-sided.
12 Here, Epic has shown that Apple ties these two separate products. Apple’s argument that
13 “[t]here is no . . . conditioning here” because “[d]evelopers are free to adopt other business
14 models that do not include in-app digital purchases” (Opp’n 19) is misguided. Under Apple’s
15 rules, the only way to distribute consumer apps on iOS is through the App Store. The only way
16 to sell in-app digital content on iOS is through IAP (subject to Apple’s arbitrary unilaterally
17 determined exceptions). That is conditioning, and that is a tie. The fact that some participants
18 who are injured by a monopolist’s unlawful acts may leave or decline to enter the market does
19 not absolve the monopolist. Indeed, that is anti-competitive harm, as Apple’s former CEO
20 himself recognized. (Byars Reply Ex. I (a developer cannot “buy/rent/subscribe from iOS
21 without paying us [Apple], which we acknowledge is prohibitive for many things”).) 4
22 3
Schmalensee, for example, argues that IAP is not just a payment processing service, but a
“system” providing “a safe and secure marketplace”. (Schmalensee ¶ 50.) Yet he ignores that
23 developers choosing other payment processing services where allowed by Apple, such as for the
Amazon or Uber iOS apps, demonstrates that separate demand exists.
24 4
Apple does not address Epic’s argument that Apple’s tying affects a not insubstantial
25 amount of commerce in the iOS In-App Payment Processing Market. (Opening 18-19.) Apple
argues that there is no per se tying because it integrates “its StoreKit APIs into the App Store
26 software platform”. (Opp’n 21.) But Epic has always said that IAP can be one of the options
available to iOS developers and users so long as the market is open to competition. There is no
27 technological reason that developers must integrate StoreKit APIs, rather than the APIs of
alternative payment processors. Microsoft did not undo the line of cases that apply the per se
28 standard to “contractual ties”. See United States v. Microsoft Corp., 253 F.3d 34, 89-95 (D.C.
Cir. 2001).

2. Under the rule of reason, Apple’s conduct has anti-competitive effects.

1
In its Opening brief (at 20), Epic explained how Apple forecloses competition in the iOS
2
In-App Payment Processing Market. The facts are simple: Epic offered a competing product
3
with lower prices, and Apple ejected Epic from the market. Apple now concedes that it has
4
taken similar steps against over 2,000 other developers seeking to introduce competition into the
5
iOS ecosystem. (Opp’n 8.) Foreclosure on this scale is clearly anti-competitive.
6
3. Apple’s procompetitive justifications are pretextual.
7
Apple argues that this undeniable competitive harm is justified by procompetitive
8
benefits. Apple is wrong. Apple invokes the word “security” or some variation thereof at least
9
15 times in its Opposition brief. (E.g., Opp’n 1, 3, 7-9, 27-30.) But security cannot justify the
10
complete foreclosure of competition in a huge part of the digital economy. And security is
11
clearly not the reason for these restrictions. Apple already allows alternative payment
12
mechanisms for iOS apps that provide real-world goods or services (Byars Reply Ex. F
13
§ 3.1.3(e)), enterprise services (id. § 3.1.3(c)), or person-to-person experiences (id. § 3.1.3(d)).
14
Likewise Apple does not mandate IAP for digital content purchased on Mac computers.
15
(Sweeney ¶ 10; Byars Ex. K § 7.) Thus, IAP plainly is not necessary to maintain the security of
16
Apple devices.
17
Similarly, Apple’s desire to be paid in a particular manner cannot justify its foreclosure
18
of the iOS In-App Payment Processing Market. (Opp’n 22-23.) As explained in Epic’s Opening
19
brief (at 20-23), Apple is entitled to payment for services that it provides, but it is not entitled to
20
force services onto users and developers when Apple’s services are not wanted. Apple
21
repeatedly points to its investment in “the tools, education, and support services that Apple
22
makes available to developers”, including Epic. (Opp’n 22.) The fact that Apple makes these
23
tools, education, and support available to developers is not related to the App Store or to public
24
good; Apple undertakes these investments to make the iOS platform more appealing to app
25
developers and users alike. Apple’s CEO has freely acknowledged this, as has one of Apple’s
26
experts. (Opening 21-22 & n.6.) Apple and Microsoft provide similar tools to developers of
27
macOS and Windows OS applications, even though neither controls the distribution of such
28

1 applications on PCs. (See Penwarden ¶ 5.)
2 Apple complains that “if the Court were to enjoin one piece of the extant model . . .
3 Apple would have to rework the entire system” and switch to one of the many other potential
4 models that it acknowledges are possible. (Opp’n 22-23.) That is exactly the point; Apple
5 should have to change the unlawful portions of its business model.
6 Apple argues that the “spectacular growth” of iOS is proof of the procompetitive benefits
7 of its conduct. (Id. at 22.) But Apple has done nothing to show that growth is attributable to the
8 conduct at issue—that is, that this growth is the result of Apple’s requirement that all consumer
9 app distribution occur through the App Store and that all in-app payment processing for digital
10 content occur through IAP.
11 Finally, Apple argues that the fact that “[o]ther app stores for computing platforms also
12 charge similar commissions, at a similar rate . . . is strong evidence” that Apple’s conduct is
13 procompetitive. (Id. at 23.) Not so. Google—the other duopolist for smartphone (or tablet)
14 OSs—is able to adopt the same anti-competitive policies Apple has adopted because it is a
15 monopolist in distribution of Android apps. (See Byars Reply Ex. G § 4.5; id. Ex. H.) As for
16 gaming consoles, the comparison is apples and oranges. Apple does not address the many
17 distinctions Epic has raised between gaming consoles and mobile devices. (Opening 22 n.7.)
18 And there is a wide diversity of practices among app stores on the open platforms of Windows
19 and macOS PCs (Evans Reply ¶ 12; Sweeney ¶ 10), demonstrating that competition benefits the
20 consumer. Thus, little can be inferred from adoption of Apple’s practices in other contexts.
21 III. EPIC WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION.
22 Apple does not dispute that removal of Fortnite from the App Store will cause many Epic
23 customers to give up on Fortnite and will undermine Epic’s ability to create the Fortnite
24 metaverse. Apple does not dispute that cutting off Epic’s access to developer tools will cause
25 millions of developers who rely on Unreal Engine to question the viability of the engine.
26 Instead, Apple’s argument is simply that since Epic changed its Fortnite app, Apple
27 should be able to do anything in retaliation. Apple also complains that Epic publicized the fight
28 to “engender goodwill”. (Opp’n 26.) Epic’s public statements were made to expose to the

1 public Apple’s anti-competitive conduct—which Apple takes pains to conceal. (Byars Reply
2 Ex. F § 3.1.3.) In any event, users and developers are blaming Epic for the effects of this fight,
3 with incalculable consequences to Epic’s goodwill, reputation, and competitive standing.
4 (Opening 25-29.) Apple does not grapple with this quintessential evidence of irreparable harm.
5 This leaves Apple’s main argument, that Epic’s harm should be ignored because it is self-
6 inflicted. That argument fails as a matter of law. In its Opening Brief, Epic discussed the long
7 line of U.S. Supreme Court precedent holding that the law does not penalize, but rather protects,
8 parties that challenge anti-competitive contract provisions, including when that challenge
9 involves non-compliance with the terms of those contracts. The Supreme Court has said courts
10 should not aid monopolists by enforcing unlawful provisions in contracts, and should not
11 penalize those who, in order to break out of the grip of a monopolist, breach such provisions.
12 These cases are binding precedent that serves the congressional intent of finding ways to ensure
13 that the competitive process maintains vibrancy. If Epic is correct and Apple is maintaining a
14 monopoly with anti-competitive contract restrictions, the Supreme Court instructs that what
15 Apple characterizes as self-inflicted should be understood as protective of competition.
16 Apple’s attempt to distinguish this line of binding precedents on the basis that they did
17 not involve injunctive relief (Opp’n 25) finds no support in the cases themselves, and is flatly
18 contradicted by Courts of Appeals precedent, cited in Epic’s Opening brief (at 24-25), including
19 Acquaire v. Canada Dry Bottling Co., 24 F.3d 401 (2d Cir. 1994). The Acquaire court
20 recognized that if the plaintiffs there chose to “abide by [the] terms” of the defendant’s illegal
21 “promotional program”, the defendant would not have “withheld product” from them. Acquaire,
22 24 F.3d at 411. The Acquaire court outright rejected the defendant’s argument that the harm to
23 the plaintiffs, caused by their choice to reject the illegal provisions, was “self-inflicted”. Id. at
24 411-12. Epic was faced with a similar choice: if it chose, “with a simple keystroke”, 5 to
25 capitulate and provide Apple with a compliant version of Fortnite, Apple would return Fortnite
26
5
27 Apple argues that Epic cannot demonstrate irreparable harm because it “can solve its own
problems” “with a simple keystroke”. (Opp’n 23-24; see also id. at 2.) This is false, or at least
28 inconsistent with Apple’s statements to Epic. Apple has decreed that it “will deny [Epic’s]
reapplication to the Apple Developer Program for at least a year”. (Grant Ex. H.)

1 to the App Store and allow Epic to keep its Developer Program accounts. If it refused, Apple
2 would punish Epic by terminating its accounts, cutting off its access to tools, and more. Like the
3 Acquaire court, this Court should not discount irreparable harm based on the fact that Epic’s
4 choice was to take a stand and not abide by Apple’s anti-competitive policies. 6
5 IV. THE BALANCE OF HARMS STRONGLY FAVORS EPIC.
6 Absent relief, the harm to Epic will be significant. (See Section III above.) By contrast,
7 the parade of horribles Apple claims will occur if the injunction is granted is not credible.
8 Apple already allows many developers to offer direct payment as an alternative to IAP.
9 Apple did not reject Epic’s direct payment to protect iOS users—Apple rejected it because it
10 posed a competitive threat. Epic’s refusal to abide by Apple’s anti-competitive IAP tie does not
11 provide any support that Fortnite, Unreal Engine, or any other Epic app for that matter, would
12 become a source of malware. Apple’s entire security threat argument is destroyed by its own
13 practices that allow numerous other developers to offer direct payment.
14 Apple’s argument is that there is a possibility Epic’s payment service could
15 hypothetically create a future security issue—the “prospect that Epic’s alternative payment
16 system may compromise [users’] privacy or data security”. (Opp’n 27 (emphasis added).)
17 Apple offers no evidence to support this speculation. Numerous other developers already offer
18 direct pay safely. Epic direct pay has been on iOS for over a month. Apple has used this time to
19 dissect Epic direct pay to look for security threats. Apple’s failure to offer any evidence of such
20 a threat is conclusive. Apple already allows many payment processors other than IAP for real-
21 world goods or services (Byars Reply Ex. F § 3.1.3(e)), enterprise services (id. § 3.1.3(c)), or
22 person-to-person experiences (id. § 3.1.3(d)). Third-party payment processing is not a security
23
6
24 Milsen Co. v. Southland Corp., 454 F.2d 363 (7th Cir. 1971), is also on point. There, the
defendant attempted to terminate agreements because the plaintiffs had refused to pay certain
25 allegedly anti-competitive franchise fees due under the agreements. 454 F.2d at 364-65. The
court reversed the denial of a preliminary injunction because “defendants who are or may be
26 guilty of anticompetitive practices should not be permitted to terminate . . . when such
terminations would effectuate those practices”. Id. at 366; see also Germon v. Times Mirror Co.,
27 520 F.2d 786, 788 (9th Cir. 1975) (citing Milsen; “A termination might be enjoinable even if
done pursuant to contract, if the contractual clause . . . foster[s] an unlawful anticompetitive
28 scheme.”). By contrast, none of Apple’s cited cases (Opp’n 24) involved a party that refused to
abide by a contract because the contract was unlawful under the antitrust laws.

1 threat. Apple opposes Epic direct pay to protect its monopoly.
2 Similarly, restoring Fortnite to iOS would not increase the risk of Epic sneaking malware
3 into its apps or the Unreal Engine toolset. (Opp’n 28.) There is no such risk. Epic had apps on
4 the App Store for a decade. Fortnite has been on the store for two years. Unreal Engine has
5 powered apps on the App Store for many years. Epic is a respected, well-established company.
6 Epic’s CEO has sworn under oath that Epic does not and will not deal in malware (Sweeney
7 Reply ¶ 26), and Epic would suffer incalculable reputational harm if it tried to sneak in malware.
8 Using the well-established hotfix mechanism to serve a second payment option is not malware.
9 (Grant ¶¶ 16-22.) If Apple really believed this was a risk, it would not have requested that Epic
10 restore Fortnite to the App Store by providing a compliant build. (Id. at Ex. B; Opp’n 12.)
11 Apple would not be harmed by the requested injunction. Nothing about the requested
12 injunction would limit Apple’s ability to terminate accounts (or even developers) that harm users
13 by introducing malware, hurt security, or compromise privacy. Instead, the requested injunction
14 would limit only Apple’s ability to continue to use its absolute control over its digital platform to
15 instill existential fear in app developers and deter any challenge to its unlawful contractual terms.
16 That is hardly a “harm” that supports Apple’s opposition.
17 Apple suggests there is no harm to Epic because of Apple’s purported “right to terminate
18 the developer agreements at any time, for any reason . . . for any Epic affiliate”. (Opp’n 24.)
19 But the contracts do not permit Apple to terminate separate entities’ contracts for their affiliate’s
20 breach of a separate contract. Apple’s having done this thousands of times in the past is no
21 excuse. That a contract is “at will” does not suggest Epic would not suffer harm from its
22 termination—or that termination as part of a retaliatory anti-competitive scheme is proper.
23 Importantly, the threatened termination is intended to further Apple’s anti-competitive
24 scheme and deter resistance. As such, it is itself illegal. The law imposes a duty to deal on a
25 monopolist like Apple “when (1) it unilaterally terminates a voluntary and profitable course of
26 dealing; (2) the only conceivable rationale or purpose is to sacrifice short-term benefits in order
27 to obtain higher profits in the long run from the exclusion of competition; and (3) the refusal to
28 deal involves products that the defendant already sells in the existing market to other similarly

1 situated customers”. FTC v. Qualcomm Inc., 969 F.3d 974, 994-95 (9th Cir. 2020) (internal
2 quotations and alterations omitted). Here, Apple is attempting unilaterally to terminate voluntary
3 and profitable contacts, with the express purpose of eliminating competition, denying Epic
4 accounts and developer tools that Apple “makes . . . available” to all developers. (Opp’n 5-6.)
5 V. EPIC’S REQUESTED RELIEF WOULD FURTHER THE PUBLIC INTEREST.
6 Countless Fortnite users and developers who rely on Unreal Engine are collateral
7 damage to Apple’s collective punishment. (See Section III; Opening 25-29; Byars Ex. R-S.)
8 Apple does not dispute that harm to these users and developers is against the public interest.
9 Instead, Apple argues that “an injunction would contravene the public’s ‘strong interest
10 in holding private parties to their agreement[]’”. (Opp’n 29.) But that principle applies only to
11 lawful agreements, as Apple’s cited case recognizes. See S. Glazer’s Distribs. of Ohio, LLC v.
12 Great Lakes Brewing Co., 860 F.3d 844, 853-54 (6th Cir. 2017) (“The public . . . has an interest
13 in enforcing the [law],” and that “[b]ecause there is no conflict [between the contract and the
14 law], the public’s interest in enforcing private contracts weighs against the injunction”
15 (emphases added)). 7 This case is not about enforcing lawful private contracts. The contractual
16 provisions on which Apple relies and against which Epic has taken a stand are unlawful. Apple
17 does not dispute that enforcement of the antitrust laws furthers the public interest. (See Opening
18 at 23-25.) “Where the contractual right is alleged to violate the antitrust laws, the public interest
19 in antitrust enforcement and preservation of competition outweighs the interest in freedom of
20 contract.” trueEX, LLC v. MarkitSERV Ltd., 266 F. Supp. 3d 705, 726 n.143 (S.D.N.Y. 2017).
21 Apple’s suggestion that an injunction would place other App Store developers at a
22 competitive disadvantage vis-à-vis Epic is likewise meritless. (Opp’n 29.) Apple’s sudden
23 concern about equity and the concern that some app developers would “be forced to subsidize
24 the tools that allow Epic to succeed” rings hollow given Apple’s repeated assertion that over
25 80% of app developers pay nothing for those tools; presumably, in Apple’s view, they are
26 “subsidized” by those who do. Nor is it true that an injunction somehow would lead developers
27 to feel free to “compromise” users’ data. The requested injunction would not prevent Apple
28 7
Apple’s other cited cases do not involve allegations of unlawful contracts. (Opp’n 29.)

1 from enforcing rules that actually pertain to security or privacy. All it would do is prevent Apple
2 from retaliating against Epic for one thing only—the introduction of competition to IAP.
3 Apple’s attempt to downplay the harm it inflicts on users of Fortnite and Unreal Engine
4 is also unpersuasive. (Opp’n 9-10, 30.) Fortnite is a forum for shared experiences, including
5 concerts, movies, roundtables, and gaming. For the intensely social experience that Fortnite
6 offers, the loss of even 10% of users impacts the entire Fortnite community. Estranging all iOS
7 users has resulted in manifold more disrupted connections that affect non-iOS friends and family
8 who keenly feel the loss, and undermines Epic’s ability to reach the crucial mass necessary to
9 achieve the metaverse. (Sweeney ¶¶ 3, 24.) Contrary to Apple’s statement that “Unreal
10 Engine . . . is used by a minuscule fraction of iPhone apps” (Opp’n 30), Apple’s own witness
11 testified that “Unreal Engine is a popular development engine used by many developers on iOS
12 and other platforms.” (Schmid ¶ 20.) Unreal Engine has a community of 11 million developers
13 worldwide (Penwarden ¶ 2), and is used to develop some of the most popular games on the App
14 Store. (Penwarden ¶ 4; Sweeney ¶ 30.) Apple’s claim that its retaliation against Unreal Engine
15 would not harm developers because of the availability of Unity, an Unreal Engine competitor, is
16 false. Unreal Engine developers have put time and resources into projects reliant on Unreal
17 Engine, and moving away would cause them significant harm. (Sweeney Reply ¶ 29.) And the
18 removal from the market of one out of two primary engines currently available to developers
19 would likewise harm developers for years to come. (Id. ¶¶ 29-30; Penwarden ¶ 10.)
20 Finally, in this context as well, Apple argues that the public harm is of Epic’s making.
21 That is not the case, for all the reasons cited above. Epic properly refused to abide by unlawful
22 agreements. It is Apple that removed Fortnite from the App Store. It is Apple that threatened to
23 terminate access to tools used by other Epic businesses, including Unreal Engine. It is Apple
24 that threatened to terminate agreements that were not breached governing accounts and apps that
25 have nothing to do with Fortnite. Therefore, it is Apple that should be enjoined to prevent the
26 harm to third parties relying on Fortnite and other Epic businesses, including Unreal Engine.
27
28

Dated: September 18, 2020

1
Respectfully submitted,
2
3 By: /s/ Katherine B. Forrest
4
FAEGRE DRINKER BIDDLE & REATH
5 LLP
6
Paul J. Riehle
7 [email protected]
8 Four Embarcadero Center

San Francisco, California 94111
9 Telephone: (415) 591-7500
10 Facsimile: (415) 591-7510
11
CRAVATH, SWAINE & MOORE LLP
12
Christine A. Varney (pro hac vice)
13 [email protected]
14 Katherine B. Forrest (pro hac vice)
[email protected]
15 Gary A. Bornstein (pro hac vice)
[email protected]
16 Yonatan Even (pro hac vice)
[email protected]
17
Lauren A. Moskowitz (pro hac vice)
M. Brent Byars (pro hac vice)
20 825 Eighth Avenue

New York, New York 10019
21
Telephone: (212) 474-1000
22 Facsimile: (212) 474-3700
23 Attorneys for Plaintiff

EPIC GAMES, INC.
24
25
26
27
28

20-09-18 Epic Reply ISO Motion For PI Against Apple

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Case 4:20-cv-05640-YGR Document 90 Filed 09/18/20 Page 1 of 21

1 Paul J. Riehle (SBN 115199)

5 Christine A. Varney (pro hac vice)

14 Attorneys for Plaintiff Epic Games, Inc.

15 UNITED STATES DISTRICT COURT

EPIC’S REPLY MEMORANDUM CASE NO. 4:20-CV-05640-YGR

EPIC’S REPLY MEMORANDUM ii CASE NO. 4:20-CV-05640-YGR

5 FTC v. Qualcomm Inc.,

10 Newcal Indus., Inc. v. Ikon Office Sols.,

15 Teradata Corp. v. SAP SE,

EPIC’S REPLY MEMORANDUM iii CASE NO. 4:20-CV-05640-YGR

TABLE OF CITED DOCUMENTS

10 Evans Declaration of Dr. David S. Evans (ECF

14 Penwarden Declaration of Nicholas Penwarden in Support

16 Sweeney Declaration of Timothy Sweeney in Support of

EPIC’S REPLY MEMORANDUM iv CASE NO. 4:20-CV-05640-YGR

Evans Reply Second Declaration of Dr. David S. Evans

EPIC’S REPLY MEMORANDUM v CASE NO. 4:20-CV-05640-YGR

7 consumers should not be harmed by Apple’s overwhelming retaliation against Epic.

23 your pocket but a smartphone does.

EPIC’S REPLY MEMORANDUM CASE NO. 4:20-CV-05640-YGR

6 processors. It is clear that developers are clamoring for competition.

9 customers of those customers—in essence, that it is dispensing collective punishment. Instead of

15 from Apple’s retaliation. Apple has no valid response.

16 Second, Apple repeatedly invokes “security” and “privacy” as justifications for

26 method by which Epic introduced competing payment processing functionality; Apple is

EPIC’S REPLY MEMORANDUM 2 CASE NO. 4:20-CV-05640-YGR

7 not presented a shred of evidence that there is any security issue.

11 participants in the new program. (Sweeney Reply ¶ 7, Ex. A.)

25 meantime, an injunction should issue.

EPIC’S REPLY MEMORANDUM 3 CASE NO. 4:20-CV-05640-YGR

6 II. EPIC IS HIGHLY LIKELY TO SUCCEED ON THE MERITS.

7 A. Apple’s Conduct Violates Section 2 of the Sherman Act.

8 1. Apple has a monopoly in the iOS App Distribution Market.

EPIC’S REPLY MEMORANDUM 4 CASE NO. 4:20-CV-05640-YGR

7 generally, are not accessible through distribution on other platforms.

19 tying products as “integrated”). Indeed, it is Apple’s decision to contractually coerce developers

20 to “integrate” its downstream offering that constitutes Apple’s anti-competitive conduct.

21 2. Apple unlawfully maintains its app distribution monopoly.

26 these are legal for two reasons, neither of which is availing.

EPIC’S REPLY MEMORANDUM 5 CASE NO. 4:20-CV-05640-YGR

4 technology”. (Id.) That statement mischaracterizes Epic’s argument. Microsoft is compensated

23 distribution and that Apple should fairly compete in that market.

EPIC’S REPLY MEMORANDUM 6 CASE NO. 4:20-CV-05640-YGR

6 curtail the scope of Apple’s anti-competitive conduct. 2

7 B. Apple’s Conduct Violates Sections 1 and 2 of the Sherman Act.

12 1. Apple ties app distribution to in-app payment processing.

EPIC’S REPLY MEMORANDUM 7 CASE NO. 4:20-CV-05640-YGR

6 rebut the evidence of separate demand. 3

11 if the primary market is two-sided.

21 without paying us [Apple], which we acknowledge is prohibitive for many things”).) 4

EPIC’S REPLY MEMORANDUM 8 CASE NO. 4:20-CV-05640-YGR

2. Under the rule of reason, Apple’s conduct has anti-competitive effects.

EPIC’S REPLY MEMORANDUM 9 CASE NO. 4:20-CV-05640-YGR

1 applications on PCs. (See Penwarden ¶ 5.)

5 should have to change the unlawful portions of its business model.

10 content occur through IAP.

21 III. EPIC WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION.

EPIC’S REPLY MEMORANDUM 10 CASE NO. 4:20-CV-05640-YGR