21-11-26 Epic Games Opposition To Apple Motion To Stay Injunction (9th Cir.)

Case: 21-16506, 11/26/2021, ID: 12298870, DktEntry: 20-1, Page 1 of 40
Nos. 21-16506 & 21-16695
United States Court of Appeals for the Ninth Circuit
EPIC GAMES, INC.,

Plaintiff, Counter-defendant – Appellant, Cross-Appellee,
v.
APPLE INC.,
Defendant, Counterclaimant – Appellee, Cross-Appellant.
_____________________________
Appeal from the U.S. District Court

for the Northern District of California
The Honorable Yvonne Gonzalez Rogers (No. 4:20-CV-05640-YGR-TSH)
_____________________________
OPPOSITION TO APPLE INC.’S MOTION FOR

ADMINISTRATIVE STAY AND TO STAY INJUNCTION
PENDING APPEAL
_____________________________
Christine A. Varney Paul J. Riehle

Peter T. Barbur FAEGRE DRINKER BIDDLE & REATH
Katherine B. Forrest LLP
Antony L. Ryan Four Embarcadero Center
Gary A. Bornstein San Francisco, CA 94111
Yonatan Even (415) 591-7500
Lauren A. Moskowitz
Omid H. Nasab
Justin C. Clarke
M. Brent Byars
CRAVATH, SWAINE & MOORE LLP
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000
Counsel for Appellant, Cross-Appellee Epic Games, Inc.

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Epic
Games, Inc. (“Epic”) states that it has no parent corporation and that
Tencent Holdings Limited owns more than 10% of Epic stock.
ii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ...........................................ii

TABLE OF AUTHORITIES ..................................................................... iv
INTRODUCTION ...................................................................................... 1
STATEMENT OF THE CASE .................................................................. 4
ARGUMENT ............................................................................................. 8
I. APPLE WILL NOT SUFFER IRREPARABLE INJURY
ABSENT A STAY. ................................................................... 8
II. APPLE IS UNLIKELY TO SUCCEED ON THE

MERITS. ................................................................................ 15
A. Epic Proved a UCL Violation. ...................................... 15
B. Epic Continues To Have Standing............................... 22
C. Granting the UCL Injunction Was Within the

District Court’s Equitable Authority. .......................... 25
III. EPIC WOULD BE HARMED BY A STAY. .......................... 28
IV. THE PUBLIC INTEREST FAVORS DENIAL OF A

STAY...................................................................................... 29
V. THE COURT SHOULD DENY APPLE’S

ALTERNATIVE REQUEST FOR AN
ADMINISTRATIVE STAY.................................................... 30
CONCLUSION ........................................................................................ 30
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Al Otro Lado v. Wolf,

952 F.3d 999 (9th Cir. 2020) ............................................................... 12
Am. Passage Media Corp. v. Cass Commc’ns, Inc.,

750 F.2d 1470 (9th Cir. 1985) ............................................................. 14
Amylin Pharms., Inc. v. Eli Lilly & Co.,

456 F. App’x 676 (9th Cir. 2011)......................................................... 14
Bresgal v. Brock,
843 F.2d 1163 (9th Cir. 1987) ....................................................... 27, 28
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,

20 Cal. 4th 163 (1999) ......................................................................... 16
Chavez v. Whirlpool Corp.,

93 Cal. App. 4th 363 (2001) ................................................................ 20
City of San Jose v. Off. of the Comm’r of Baseball,

776 F.3d 686 (9th Cir. 2015) ............................................................... 20
Costco Wholesale Corp. v. Hoen,

No. C04-360P, 2006 WL 2645183 (W.D. Wash.
Sept. 14, 2006) ...................................................................................... 9
Doe v. CVS Pharmacy, Inc.,

982 F.3d 1204 (9th Cir. 2020) ............................................................. 15
Easyriders Freedom F.I.G.H.T. v. Hannigan,

92 F.3d 1486 (9th Cir. 1996) ............................................................... 28
Facebook, Inc. v. BrandTotal Ltd.,

No. 20-cv-07182-JCS, 2021 WL 2354751 (N.D. Cal.
June 9, 2021) ....................................................................................... 17
iv
Facebook, Inc. v. BrandTotal Ltd.,

No. 20-cv-07182-JCS, 2021 WL 662168 (N.D. Cal.
Feb. 19, 2021) ...................................................................................... 17
Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd.,

493 U.S. 331 (1990) ....................................................................... 23, 25
Freitag v. Ayers,
468 F.3d 528 (9th Cir. 2006) ............................................................... 23
Herr v. Nestlé U.S.A., Inc.,

109 Cal. App. 4th 779 (2003) .............................................................. 27
High Sierra Hikers Ass’n v. Blackwell,

390 F.3d 630 (9th Cir. 2004) ............................................................... 25
Kilgore v. KeyBank, Nat’l Ass’n,

718 F.3d 1052 (9th Cir. 2013) ............................................................. 25
Kirola v. City & Cty. of S.F.,

860 F.3d 1164 (9th Cir. 2017) ............................................................. 26
Latta v. Otter,
771 F.3d 496 (9th Cir. 2014) ............................................................... 10
LegalForce RAPC Worldwide P.C. v. UpCounsel, Inc.,

No. 18-cv-02573-YGR, 2019 WL 160335 (N.D. Cal.
Jan. 10, 2019) ...................................................................................... 16
Lozano v. AT&T Wireless Servs., Inc.,

504 F.3d 718 (9th Cir. 2007) ............................................................... 15
Montano v. Bonnie Brae Convalescent Hosp., Inc.,

79 F. Supp. 3d 1120 (C.D. Cal. 2015) ................................................. 27
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................... 8
Ohio v. Am. Express Co.,

138 S. Ct. 2274 (2018) ......................................................................... 21
v
Sundance Image Tech., Inc. v. Inkjetmall.com, Ltd.,

No. 02-cv-2258, 2005 WL 8173280 (S.D. Cal.
Oct. 13, 2005) ...................................................................................... 16
United States v. Mitchell,

971 F.3d 993 (9th Cir. 2020) ................................................................. 8
Statutes & Rules
Cal. Bus. & Prof. Code § 17200 ................................................................. 4
vi
Epic Games, Inc. (“Epic”) respectfully requests that this
Court deny Apple’s motion for an administrative stay and to stay the
injunction pending appeal (“Mot.”).
INTRODUCTION
This case challenges Apple’s conduct relating to its App
Store, the only means through which app developers can distribute
their apps to iPhones and iPads. Unlike on personal computers, where
consumers can get software from a variety of sources, Apple makes it
impossible for consumers to get apps from anywhere other than Apple’s
own store. Apple further requires all developers selling digital content
inside an app to use Apple’s own in-app payment solution (“IAP”), for
which Apple charges a commission that is typically 30%. Through
so-called “anti-steering provisions” in Apple’s App Store Review
Guidelines ( “Guidelines”), Apple prohibits developers from even telling
iOS users that they can purchase the same digital content directly from
the developer elsewhere. Using these restrictions, Apple has
maintained a supracompetitive commission and reaped extraordinary
1
profit margins of 70%-80% on its App Store for years. (A-A at 118,
41-42.)1
After a 16-day trial, the district court entered an injunction
against the anti-steering provisions, in order to provide consumers with
information about, and readier access to, competitive alternatives to
Apple’s IAP. The district court found that these provisions
“contractually enforce[] silence” concerning purchasing alternatives
other than IAP and thereby “hide critical information from consumers
and illegally stifle consumer choice” (A-A at 2, 166). After the court’s
decision, Apple shrugged off the impact of the injunction, dismissing it
as “one or two sentences scratched out of an agreement” and declaring
the outcome “a resounding victory”. (E-H; E-I.) But a month later,
Apple suddenly claimed the injunction would “threaten[]” the iOS
ecosystem (Mot. 2) and asked the court to stay the injunction until all
appeals have been resolved—a period that could last years. The district
court denied Apple’s motion, which Apple now pursues in this Court.
Apple’s Motion should be denied.
1 Citations to “A-[letter]” refer to Apple’s Exhibits. Citations to

“E-[letter]” refer to Epic’s Exhibits.
2
First, Apple has not shown that it will suffer irreparable
harm absent a stay. Throughout the trial, Apple argued that its power
over consumers and developers was constrained by consumers’ ability to
make purchases outside an app, such as on a website. But Apple now
claims it would be irreparably harmed by an injunction that makes that
option visible to consumers. Apple cannot credibly claim that “a
cascading series of injuries will ensue” (Mot. 22) should Apple have to
face the very competition on which it relied to defend itself at trial.
Apple’s arguments regarding irreparable harm to users and iOS
security should also be rejected. Purchasing options outside of apps are
already available on iOS devices; the injunction simply removes
obstacles that Apple imposed to prevent users from learning about and
choosing those options.
Second, Apple has not demonstrated likelihood of success on
the merits. The district court made detailed factual findings regarding
the anticompetitive harms resulting from Apple’s anti-steering
provisions, and Apple’s challenges to the sufficiency of the evidence
supporting those findings fall flat. Apple’s legal challenges fare no
better. Its “relevant market” argument is based exclusively on federal

3
law and ignores the California Supreme Court’s authoritative
interpretation of California’s Unfair Competition Law (“UCL”). Nor is
Apple correct that its decision to kick Epic off iOS devices, which Epic
continues to challenge as unlawful, deprives Epic of standing and
compels the Court to grant a stay, regardless of the merits. Apple’s
gamesmanship aside, Epic still faces injury through its financial
interest in its subsidiaries’ iOS apps and in revenue Epic earns from
iOS apps of its Unreal Engine licensees.
Finally, the public interest weighs strongly against a stay.
The injunction would “uncloak[] the veil hiding pricing information on
mobile devices and bring[] transparency to the marketplace”, benefiting
millions of developers and U.S. consumers. (A-A at 166.)
STATEMENT OF THE CASE
Epic develops entertainment applications, including video
games, for mobile devices, personal computers (“PCs”) and gaming
consoles. Epic also develops and licenses Unreal Engine, a
revolutionary software suite that allows developers to create
three-dimensional immersive digital content. In this case, Epic
challenges certain Apple Guidelines, including the anti-steering
4
provisions, under the Sherman Act, California’s Cartwright Act, and the
UCL. (A-E ¶¶ 130-32, 227, 263.)
The Guidelines, which Apple requires all developers to
follow, compel developers to use Apple’s IAP for all in-app sales of
digital content—be it a book, an online yoga class, or a new map for a
game. This restriction does not exist for in-app sales of physical goods
or real world services, such as a rideshare or pizza.
Apple typically collects a 30% commission on every in-app
purchase made through IAP. For digital goods purchased outside an
app—for example, on the website of a game developer or a newspaper
publisher—Apple does not collect a commission. However, Apple
restricts developers’ ability to inform consumers about the availability
of such out-of-app purchases. Under Guideline § 3.1.1, Apple prohibits
developers from including in their apps any “buttons, external links or
other calls to action that direct customers to purchasing mechanisms
other than in-app purchase” for digital content. (A-D § 3.1.1.) At the
time of trial, the Guidelines also prohibited developers from “either
within the app or through communications sent to points of contact
obtained from account registration within the app (like email or text),
5
encourag[ing] users to use a purchasing method other than [IAP]”. (A-D
§ 3.1.3.) These two Guidelines are the “anti-steering provisions”.
During trial, in an attempt to rebut any findings of market
power or anticompetitive harm, Apple argued that developers’ ability to
sell content on the web constrained Apple’s ability to charge
supracompetitive prices for sales within iOS apps using IAP. One of
Apple’s economists testified that despite Apple’s restrictions, users can
“can still download and have free apps on iOS, use all the services of the
Apple ecosystem, and transact elsewhere”. (E-A at 2139:18-2140:15; see
also E-E ¶ 512 (“If Apple sought to raise its commission . . . developers
could monetize . . . through a web browser.”); id. ¶ 244 (“Developers
have many options for monetizing apps that avoid Apple’s commission
entirely, including selling . . . through other platforms (including on a
web browser).”).)
Against this backdrop, the district court heard extensive
evidence showing that Apple’s anti-steering provisions stunted the
competitive impact of web purchases. For example, the district court
credited testimony from “both Down Dog [a yoga app developer] and
Match Group [a dating app developer] . . . that they have been unable to
6
entice users to other platforms with lower prices” and that “Apple’s
anti-steering provision[s] ha[ve] prevented [Down Dog] from directing
users to the cheaper price” on the web. (A-A at 93.) The district court
concluded that the anti-steering provisions “hide critical information
from consumers and illegally stifle consumer choice”, “prevent[]
informed choice among users of the iOS platform” and “contractually
enforce[] silence”, in violation of the UCL. (A-A at 2, 164, 166.)
Pursuant to these findings, the court entered an injunction
directing Apple to cease “prohibiting developers from (i) including in
their apps and their metadata buttons, external links or other calls to
action that direct customers to purchasing mechanisms, in addition to
[IAP] and (ii) communicating with customers through points of contact
obtained voluntarily from customers through account registration
within the app”. (A-G ¶ 1.) The injunction is to take effect on
December 9, 2021.
The court found for Apple on Epic’s other counts and on
Apple’s breach of contract and declaratory relief counterclaims, ordering
Epic to pay Apple damages, which Epic promptly did. (A-A at 173, 179;
E-J.)
7
ARGUMENT
To obtain a stay pending appeal, Apple bears the burden of
showing that: (1) it will be irreparably injured absent a stay; (2) it is
likely to succeed on the merits; (3) the issuance of the stay will not
substantially injure the other parties interested in the proceeding; and
(4) the public interest favors a stay. Nken v. Holder, 556 U.S. 418, 426
(2009).
I. APPLE WILL NOT SUFFER IRREPARABLE INJURY

ABSENT A STAY.
A party seeking to stay an injunction “must demonstrate
that irreparable harm is probable—as opposed to merely possible—if
the stay is not granted”. United States v. Mitchell, 971 F.3d 993, 996
(9th Cir. 2020). Apple does not meet this standard.
First, Apple argues that the injunction will “interfere with
Apple’s ability to efficiently collect its commission”. (Mot. 17.) But the
injunction allows Apple to continue requiring developers to use Apple’s
IAP, with its associated commissions, for all in-app sales. The only
transactions on which Apple will not receive a commission are
transactions that happen outside the app, such as on the web, on which
Apple has never charged a commission. (See e.g., E-A at 66:2-5 (“I can
8
even buy V-Bucks through the web browser on my iPhone and spend
them on purchases in the app . . . [and] no commission goes to Apple.”).)
The injunction simply makes it easier for consumers to learn about and
take advantage of the existing ability to make purchases outside an
app. Apple is concerned that greater information flow to consumers will
lead to more competition, but that is not irreparable harm.
Importantly, at trial Apple maintained that consumers have
always had paths outside iOS apps to purchase digital content for use
in those apps, without Apple collecting a commission, and that those
options constrained Apple’s pricing. (See, e.g., E-A at 3236:16-3238:3
(Apple witness demonstrating payments on a web browser as an
alternative channel for purchasing digital content for games); E-D ¶ 152
(Apple is “constrained by the fact that consumers can make purchases
from developers through an iOS web browser”); E-A at 2139:18-2140:15;
E-E ¶ 512; id. ¶ 244.) Apple cannot claim that its “business model”
(Mot. 18) will be irreparably harmed if these existing out-of-app
transacting alternatives become more salient. See Costco Wholesale
Corp. v. Hoen, No. C04-360P, 2006 WL 2645183, at *5 (W.D. Wash.
9
Sept. 14, 2006) (“The mere existence of competition is not irreparable
harm, in the absence of substantiation of severe economic impact.”).2
Second, Apple argues that the injunction will “adversely
affect iOS users” because (i) “[a] number of important features
implemented through IAP are unavailable through external links” and
(ii) external links may “exploit[] users or violat[e] Apple’s privacy
guidelines”. (Mot. 18-19.) Even if these supposed harms to users
constituted harms to Apple, as required for a stay (see Latta v. Otter,
771 F.3d 496, 498 (9th Cir. 2014)), Apple’s arguments wrongly suggest
that the injunction prevents consumers from using IAP. It does not.
Consumers who value IAP or Apple’s promises of privacy can continue
to make in-app purchases using IAP. The injunction simply gives
consumers a choice by removing an artificial barrier that Apple had
placed on developers’ ability to advise consumers of other options.
2 Apple’s claim that the injunction would put Apple at a competitive

disadvantage by “rais[ing] Apple’s cost of commission collection
compared to other platforms” (Mot. 18) is without merit. Apple will still
be able to collect commissions on all in-app purchases, as it does now.
Out-of-app purchases of the type facilitated by the injunction have
never been subject to a commission.
10
Apple’s other arguments about the supposed dangers of
external links are contradicted by the fact that thousands and
thousands of iOS apps already have external payment mechanisms.
Apple allows external links and payment solutions other than IAP for
the purchase of physical goods and services, like food or transportation.
(See e.g., E-A at 2769:7-18 (developers sold over $400 billion worth of
physical goods through iOS apps in 2019), 1987:5-9 (sales of physical
goods do not use IAP).) During trial, Apple did not show that these
payment solutions impede its ability to “protect the iOS ecosystem”.
(See, e.g., E-A at 3109:20-3110:3 (Apple executive was unaware of “any
analysis within Apple that has examined whether or not . . . alternative
payment processing methods utilized by sellers of physical goods have
introduced security vulnerabilities into the iPhone”).)
Moreover, Apple does not deny the district court’s
observation that external links can be tested and reviewed as part of
Apple’s App Review process. (A-B at 3.) Instead, Apple suggests that
using App Review to test external links would impose a “‘substantial’
time and resource burden” on Apple. (Mot. 19.) But the time or
monetary cost of complying with an injunction is not irreparable harm.

11
See Al Otro Lado v. Wolf, 952 F.3d 999, 1008 (9th Cir. 2020) (“The key
word in this consideration is irreparable. Mere injuries, however
substantial, in terms of money, time and energy necessarily
expended . . . are not enough.”). Apple’s claims that it would be “costly”
to “develop new App Review processes, write and enforce new
Guidelines, and implement alternative solutions for collecting its
commission” (Mot. 21) are unavailing for the same reason.
Regarding Apple’s concern that external links may be
changed by the developer after the app has been reviewed (Mot. 19),
Apple has a mechanism for removing rogue apps from the App Store
that change their behavior post-App Review. (See E-A at 3509:10-13;
E-B ¶ 115.) In addition, there is no genuine risk to the iOS ecosystem
from external links, given that Apple currently allows countless
external links for buying physical goods and services. Apple’s
scaremongering is pure pretext, contradicted by its existing behavior.
Ultimately, as the district court found, Apple’s motion does
not raise any substantial security argument that was not already
considered and rejected by the court in its post-trial decisions. (See A-A
at 166 (“Apple’s business justifications . . . will not be significantly

12
impacted by the increase of information to and choice for consumers.”);
A-B at 3 (“The reader rule, cross-play, and cross-wallet all reflect trial
examples that alternatives outside the app can be accommodated.
Mr. Kosmynka’s declaration does not change the result. In most ways,
he merely repeats arguments that the Court considered as part of its
Order.”).)
Third, Apple argues that it will suffer harm because the
injunction “will expose users with much greater frequency to the risks of
external payment links”, will “lower user confidence in the safety,
security, and reliability of digital content purchases”, and developers
“will suffer from this lowered confidence as well, as users will be less
inclined to make purchases”. (Mot. 20 (emphasis in original).) Apple
has not put forward, at trial or now, a single developer that shares this
concern. Instead, Apple relies solely on the assertions of its employee
Mr. Kosmynka. (Mot. 20.) But Mr. Kosmynka does not explain why the
supposed decline in user confidence has not afflicted the sales of
physical goods and services, as to which external links have always
been allowed.
13
Moreover, Mr. Kosmynka does not grapple with the fact that
the injunction does not require developers to offer external links and
does not require consumers to use them; the injunction simply removes
prohibitions imposed by Apple. Under the injunction, Apple may
continue to require developers to use IAP for in-app purchases, and
consumers who do not have “confidence” in external links need not use
them. Speculative and unsubstantiated statements like
Mr. Kosmynka’s cannot support irreparable harm. See e.g., Am.
Passage Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1473
(9th Cir. 1985) (rejecting affidavits claiming irreparable harm as
“conclusory and without sufficient support in facts”); Amylin Pharms.,
Inc. v. Eli Lilly & Co., 456 F. App’x 676, 679 (9th Cir. 2011) (no
irreparable harm absent “concrete evidence”).
Fourth, Apple’s argument that the “implementation of the
injunction would require costly technical and engineering changes”
lacks any factual basis in the record. (Mot. 21.) Mr. Kosmynka’s
declaration provides no detail regarding the required changes, and the
argument is belied by the existing “buttons, external links, or other
calls to action that direct customers to purchasing mechanisms other

14
than [IAP]” (A-D § 3.1.1) permitted in apps selling physical goods or
services.
II. APPLE IS UNLIKELY TO SUCCEED ON THE MERITS.
A. Epic Proved a UCL Violation.
Apple has not identified any errors by the district court that
would warrant reversal.
First, the district court properly applied the balancing test to
assess Apple’s UCL liability. Apple’s cursory statement that the
balancing test “is inapplicable here as a matter of law” (Mot. 9) lacks
merit. In Lozano v. AT&T Wireless Services, Inc., 504 F.3d 718, 735
(9th Cir. 2007), the sole case that Apple cites for this proposition, this
Court found that in consumer actions—as opposed to competitor
actions—courts may apply the tethering test or the balancing test to
determine unfairness, and that these options “are not mutually
exclusive”. Id. at 736; see also Doe v. CVS Pharmacy, Inc., 982 F.3d
1204, 1214-15 (9th Cir. 2020). As the district court found that “Epic
Games has standing to bring a UCL claim as a quasi-consumer, not
merely as a competitor” (A-A at 161), its use of the balancing test was
appropriate. In any event, the district court concluded that Apple
15
violates the UCL under both tests. (A-A at 162-66; A-B at 2 (“Contrary
to Apple’s assertions, the Court evaluated the UCL claims using two
tests, not one.”).)
Second, UCL jurisprudence does not require the district
court to “analyze the steering provisions using the same market it had
used for Epic’s other claims”, as Apple claims (Mot. 9), or to conduct a
full-blown market definition exercise of the kind courts undertake in
Sherman Act cases. Indeed, in Cel-Tech Communications, Inc. v. L.A.
Cellular Telephone Co., 20 Cal. 4th 163 (1999), the California Supreme
Court allowed an unfair competition claim to proceed without such a
market definition exercise. Id. at 180, 187. Other UCL cases have
recognized cognizable threats to competition without a full market
definition analysis. See, e.g., LegalForce RAPC Worldwide P.C. v.
UpCounsel, Inc., No. 18-cv-02573-YGR, 2019 WL 160335, at *18
(N.D. Cal. Jan. 10, 2019) (denying dispositive motion under the UCL
unfairness prong without a full-scale market definition); Sundance
Image Tech., Inc. v. Inkjetmall.com, Ltd., No. 02-cv-2258, 2005 WL
8173280, at *9 (S.D. Cal. Oct. 13, 2005) (same).
16
In the sole UCL case Apple relies on, the court recognized in
a preceding order that “a plaintiff need not always allege a Sherman
Act violation to state a UCL claim based on ‘unfair’ conduct”. Facebook,
Inc. v. BrandTotal Ltd., No. 20-cv-07182-JCS, 2021 WL 662168, at *10
(N.D. Cal. Feb. 19, 2021). But the plaintiff there failed to allege
“circumstances that would allow something other than an antitrust
violation to support an ‘unfair’ prong claim”, so the court proceeded to
rely on Sherman Act cases requiring market definition. Facebook, Inc.
v. BrandTotal Ltd., No. 20-cv-07182-JCS, 2021 WL 2354751, at *15
(N.D. Cal. June 9, 2021). Here, by contrast, the district court found that
Epic’s UCL claim “warrants separate consideration apart from antitrust
laws”. (A-A at 162.)
Further, the district court’s analysis was not done “in the
abstract”, as Apple suggests. (Mot. 9.) The court considered whether to
use the mobile gaming transactions market it had defined under the
Sherman Act but concluded it could not “discern any principled reason
for eliminating the anti-steering provisions to mobile gaming only”
because “[t]he lack of information and transparency extends to all apps,
not just gaming apps”. (A-A at 167.)

17
Apple’s challenges to the sufficiency of the evidence are also
unavailing. It contends that anticompetitive effects of the anti-steering
provisions on developers of non-gaming apps are “insufficient evidence
to support the UCL judgment in the market for mobile gaming
transactions”. (Mot. 10.) But as noted above, the district court
specifically found that Apple’s concealment “extends to all apps”. (A-A
at 167.) That conclusion stands unrebutted. Apple does not present
any evidence, or even argument, showing disparate effects on gaming
and non-gaming apps. 3
Apple also contends that “Epic’s economic experts did not
testify about the anti-steering provisions independent of any other
challenged provisions”. (Mot. 10.) But Epic’s expert did address the
harms caused by the provisions. (See, e.g., E-A at 1715:11-16 (anti-
steering provisions “make[] it much more difficult for Epic to
communicate to the iOS app user that they have another alternative to
3 Apple claims that Epic itself alleged that mobile game developers
would be harmed “if customers were sent outside the app to make a
purchase”. (Mot. 10 (citing A-E ¶ 116).) But Epic was referring to the
harm that would result if out-of-app purchases were the only option—
not a world in which in-app purchases remain available and consumers
have a choice.
18
go to”); see also id. at 1726:16-18, 2408:15-2409:5, 2436:3-6.) Moreover,
no rule of law requires separate economic expert opinion about each of a
defendant’s interlocking anticompetitive acts. The district court also
heard ample testimony on the effects of the anti-steering provisions
from those directly harmed by them—app developers. (See, e.g., A-A
at 93; E-A at 363:4-364:17 (Down Dog CEO testifying that average
subscription price for iOS users is roughly 15% higher than on Android
due to Apple’s prohibition on telling users about discounted purchase
options on the web); id. at 366:6-367:10 (inability to steer users to
cheaper subscription on the web resulted in a 28% reduction in the
number of [Down Dog] subscribers).) Apple similarly misses the mark
in arguing that “novel business practices—especially in technology
markets—should not be conclusively presumed to be unreasonable and
therefore illegal”. (Mot. 10 (emphasis omitted).) Apple’s restrictions
were not “presumed” to be unreasonable; they were found to be harmful
based on concrete evidence at trial.4
4 Nor are they “novel”. They were adopted over a decade ago (Mot. 7-8),
leading to extensive evidence of years of supracompetitive prices and
extraordinary profit margins.
19
Third, Apple argues that the district court’s UCL ruling is
“contrary to precedent” because “the determination that the conduct is
not an unreasonable restraint of trade necessarily implies that the
conduct is not ‘unfair’ toward consumers”. (Mot. 11 (quoting City of San
Jose v. Off. of the Comm’r of Baseball, 776 F.3d 686, 691-92 (9th Cir.
2015) (quoting Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363, 375
(2001))).) But as the district court explained, Chavez “expressly rejected
the notion that ‘an “unfair” business act or practice must violate an
antitrust law to be actionable under the [UCL]’”, but reached the more
limited holding that “conduct cannot be unfair where it is ‘deemed
reasonable and condoned under the antitrust laws’”. (A-A at 162 n.631
(quoting Chavez).) In ruling on Apple’s UCL violation, the district court
correctly concluded that “there is a difference between conduct ‘deemed
reasonable’ and conduct for which a violation has not been shown”.
(A-A at 162 n.631.)
Apple also suggests that the district court contravened
precedent by discounting the claimed procompetitive effects of the anti-
steering provisions. (See Mot. 11-12.) This, too, lacks merit. Apple
points to Amex, but the Supreme Court did not establish a rule there
20
that anti-steering provisions are always procompetitive. The Supreme
Court did not even hold that Amex’s own anti-steering provisions were
procompetitive; it merely recognized that anti-steering provisions could
be procompetitive in appropriate circumstances, and rejected the
plaintiffs’ claims there because they failed to prove anticompetitive
effects on both sides of a two-sided market. Ohio v. Am. Express Co.,
138 S. Ct. 2274, 2290 (2018).
Here, after hearing the evidence at trial, the district court
found that Apple’s anti-steering provisions harm both developers and
users, and therefore “harm competition and result in supracompetitive
pricing and profits”. (A-A at 166.) The district court considered and
distinguished Amex, noting that “[i]n retail brick-and-mortar stores,
consumers do not lack knowledge of options” (A-A at 165) because,
among other things, “you can see the sign that says, Visa, Mastercard,
Discover, AmEx” on the store door. (E-A at 1891:13-15.) But
“[t]echnology platforms differ” (A-A at 165), for reasons including that
“[t]hose visual indications of options don’t exist” (E-A at 1891:17-19),
making the payment solutions on iOS “a black box” (A-A at 165). In
response, Apple points to evidence that many iOS Fortnite players made
21
purchases on platforms other than iOS (Mot. 11). However, Apple
ignores its own expert’s testimony that approximately two-thirds of
Fortnite accounts that made purchases on iOS made them only on iOS.
(E-A at 2136:18-2137:18.) Apple also ignores that, unlike Fortnite,
many apps are not available on other platforms, making web-based
purchases on iOS the only competitive alternative for those apps.
Moreover, the district court found that, contrary to Apple’s contention,
most users do not know of out-of-app purchasing options because Apple
“enforced silence to control information and actively impede[d] users
from obtaining the knowledge to obtain digital goods on other
platforms”. (A-A at 165.)
B. Epic Continues To Have Standing.
Despite “repeatedly[] offer[ing] to allow Epic Games to
return Fortnite to the App Store” (A-A at 26), including at trial (E-A at
58:6-9), Apple changed course shortly after Epic appealed the district
court’s decision. Apple refused to reinstate Epic’s Developer Program
account, which it used to distribute Fortnite on the App Store, until the
resolution of all appeals. (A-I.) Apple now argues that its own decision
to bar Epic from the App Store deprives Epic of standing, such that the
22
Court has no choice but to grant Apple’s motion for a stay, even if Apple
has not met its burden. But the lawfulness of Apple’s decision to
terminate Epic’s account is in dispute on appeal, as it has been since
Epic filed suit, and the controversy over Apple’s anti-steering policies
remains very much alive. See, e.g., Freitag v. Ayers, 468 F.3d 528, 548
(9th Cir. 2006) (terminated employee retained standing to seek an
injunction affecting an agency’s employment practices “pending the
final resolution of the administrative proceeding” regarding the
lawfulness of her termination). Condoning Apple’s gamesmanship
would allow Apple to continue engaging in unfair conduct—affecting
thousands of developers and many millions of users—for years. (See
E-B at 13:19-21 (Apple’s requested stay until resolution of appeals
“would effectively take years”).)
In any event, Apple’s tactic fails, as Epic continues to suffer
“actual financial injury”. Franchise Tax Bd. of Cal. v. Alcan Aluminum
Ltd., 493 U.S. 331, 336 (1990). Apple’s anti-steering provisions enable
it to “extract supracompetitive commissions”. (A-A at 118, 163.) This
reduces the payments Epic receives from licensees and through
subsidiaries. First, Epic licenses its software development tool, Unreal

23
Engine, to other app developers and typically receives a 5% royalty after
the licensee’s first $1 million in revenue. (E-A at 681:3-7.)5 The
supracompetitive commissions sustained by Apple’s anti-steering
provisions reduce the royalties that Epic receives.
Apple disputes this, noting that royalties are calculated
based on gross revenues, and arguing that “Epic failed to prove any
restriction of output”. (Mot. 14 (citing A-A at 100).) As an initial
matter, the court’s finding on output assessed all of Apple’s restrictions
in the aggregate, including those that the court found to be
procompetitive. (A-A at 99.) The court did not find any procompetitive
justification for the anti-steering restrictions, but did find they result in
supracompetitive prices. (Id. at 165-66.) Apple cannot dispute the
basic economic principle that supracompetitive prices lead to fewer
transactions, meaning fewer royalties for Epic. Moreover, Apple’s
argument is pure bootstrapping. Epic has appealed the district court’s
decision. Apple cannot ask this Court to assume the correctness of the
5 Apple’s assertion in the district court that these royalties are

irrelevant because they are paid to Epic subsidiaries is incorrect.
Developers in the United States contract with and pay royalties to Epic
Games, Inc., the plaintiff in this case. (A-K at 1, 7-8.)
24
district court’s finding on output to deny Epic standing even while that
finding is being challenged on appeal.
Second, five Epic subsidiaries maintain Developer Program
accounts, some of which have apps on the App Store, including apps
that allow in-app purchases. (E-A at 724:8-725:21; E-K.) The
diminution in app revenue from Apple’s supracompetitive commissions
is “actual financial injury” to Epic, which supports Article III standing.
Franchise Tax Bd., 493 U.S. at 336.
C. Granting the UCL Injunction Was Within the

District Court’s Equitable Authority.
“A district court has ‘broad latitude in fashioning equitable
relief when necessary to remedy an established wrong.’” High Sierra
Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir. 2004). And “[t]he
UCL authorizes broad injunctive relief to protect the public from unfair
business practices”. Kilgore v. KeyBank, Nat’l Ass’n, 718 F.3d 1052,
1059 (9th Cir. 2013). Apple’s challenges to the court’s authority are
meritless.
First, Apple’s claim that the district court failed to make “an
express finding” that Epic had proved “irreparable injury from the anti-
25
steering provisions” (Mot. 15-16) is incorrect. The district court found
that the lack of competition caused by the anti-steering provisions
means that “[t]he costs to developer[s] are higher because competition is
not driving the commission rate”. (A-A at 163.) Epic is among the
developers that have incurred these higher costs in the past and, as
noted above, will continue bearing their consequences in the future.
Second, Apple contends that “[t]he court had no license to
award Epic injunctive relief it did not even ask for”. (Mot. 16.) But as
the district court recognized, “Epic Games did challenge and litigate the
anti-steering provisions”, along with Apple’s policies prohibiting
competing in-app payment solutions. (A-A at 163.) Epic accordingly
sought relief that would allow developers to offer users alternative
payment mechanisms both within and outside their apps. The district
court’s injunction did not grant Epic relief it “did not even ask for” but
rather partial relief that is narrower than the relief Epic sought.
Regardless, district courts are to “grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings”. Fed. R. Civ. P. 54(c); see Kirola v. City & Cty. of S.F., 860
26
F.3d 1164, 1176 (9th Cir. 2017) (district court “not bound by” plaintiff’s
proposal).
Third, Apple complains that “the district court failed to
adhere to the principle that ‘[w]here relief can be structured on an
individual basis, it must be narrowly tailored to remedy the specific
harm shown’”. (Mot. 16 (quoting Bresgal v. Brock, 843 F.2d 1163, 1170
(9th Cir. 1987)).) In Apple’s view, market-wide relief cannot be granted
outside the context of a class action. That is not the law. Indeed, courts
have recognized that public injunctive relief is appropriate under the
UCL. See Montano v. Bonnie Brae Convalescent Hosp., Inc.,
79 F. Supp. 3d 1120, 1134-35 (C.D. Cal. 2015) (UCL injunctive relief
extended to other residents of plaintiff’s nursing home facility); Herr v.
Nestlé U.S.A., Inc., 109 Cal. App. 4th 779, 790 (2003) (affirming UCL
company-wide injunction).
Specifically here, Apple’s own cases note that “an injunction
is not necessarily made over-broad by extending benefit or protection to
persons other than prevailing parties in the lawsuit—even if it is not a
class action—if such breadth is necessary to give prevailing parties the
relief to which they are entitled”. Bresgal, 843 F.2d at 1170-71

27
(emphasis altered); see also Easyriders Freedom F.I.G.H.T. v.
Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (same). The harm to
Epic is not merely its own inability to inform users of alternatives to
IAP, but rather the supracompetitive fees Apple can charge to all
developers for all in-app purchases because the anti-steering provisions
shield it from competition. As the district court found, “the anti-
steering provisions are one of the key provisions upon which Apple has
been able to successfully charge supracompetitive commissions
untethered to its intellectual property”. (A-B at 2.) A remedy allowing
only Epic to inform consumers of alternatives would not expose Apple to
the competitive pressures the district court deemed necessary and
therefore would not give Epic “the relief to which [it is] entitled”.
Bresgal, 843 F.2d at 1170-71.
III. EPIC WOULD BE HARMED BY A STAY.
Apple’s argument that “there is no risk of harm to Epic if a
stay is issued” (Mot. 22) fails for the reasons explained in Section II.B.
Moreover, Apple’s assertion that “the court below found” no harm to
Epic (Mot. 22) mischaracterizes the district court’s order, as the district
court found that “Apple’s commission rates depress th[e] royalties” paid
28
to Epic by the “numerous companies who use the Unreal Engine for
apps”. (A-B at 2.) It further found that Apple’s commission rate
“suppress[es] competition in the industry generally, and in which Epic
Games operates”. (Id.)
IV. THE PUBLIC INTEREST FAVORS DENIAL OF A STAY.
The court’s injunction increases consumer choice on a
platform where Apple had “actively denie[d]” it for more than a decade.
(A-A at 119.) As the court wrote: “this measured remedy will increase
competition, increase transparency, increase consumer choice and
information”. (A-A at 179.) The court expressly found the injunction
will further “the public interest in uncloaking the veil hiding pricing
information on mobile devices and bringing transparency to the
marketplace”. (A-A at 166.) Apple will not voluntarily provide any
relief to consumers and developers absent a court order. (See A-A at 36
(“[N]othing other than legal action seems to motivate Apple to
reconsider pricing and reduce rates.”).) The public interest thus heavily
favors denial of Apple’s Motion.
29
V. THE COURT SHOULD DENY APPLE’S ALTERNATIVE

REQUEST FOR AN ADMINISTRATIVE STAY.
Apple was given 90 days to comply with the district court’s
order. It has offered no explanation for its 28-day delay before seeking
a stay. To the contrary, Apple publicly and privately indicated that the
injunction was not a serious problem. (See E-H, E-I.) Apple also
declined to seek additional time for compliance. (See E-B at 23:7-8.)
Having chosen to proceed this way, Apple is not entitled to an
administrative stay, which would delay the freer flow of information
and the increased competition that will arise from the district court’s
injunction.
CONCLUSION
For these reasons, Apple’s Motion should be denied.
November 26, 2021 Respectfully submitted,
/s/ Gary A. Bornstein

Christine A. Varney
Peter T. Barbur
Katherine B. Forrest
Antony L. Ryan
Gary A. Bornstein
Yonatan Even
Lauren A. Moskowitz
30
Omid H. Nasab
Justin C. Clarke
M. Brent Byars
CRAVATH, SWAINE & MOORE LLP
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000
Paul J. Riehle
FAEGRE DRINKER BIDDLE & REATH
LLP
Four Embarcadero Center
San Francisco, CA 94111
(415) 591-7500
Counsel for Appellant, Cross-Appellee Epic Games, Inc.
31
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume
limitation of Circuit Court Rule 27-1(1)(d) and Circuit Rule 32-3
because it contains 5,597 words, excluding the parts of the brief
exempted by Fed. R. App. P. 27(a)(2)(B) and Fed. R. App. P. 32(f).
I certify that this brief complies with the typeface requirements of
Fed. R. App. P. 27(d).
Dated: November 26, 2021 /s/ Gary A. Bornstein

Gary A. Bornstein
INDEX OF EXHIBITS
Exhibit Document Description
E-A Excerpts from the Trial Transcript
Excerpt from the District Court Stay Hearing Transcript

E-B
(Nov. 9, 2021)
Excerpts from Written Direct Testimony of Aviel D. Rubin,
E-C
Ph.D., D.C. Dkt. No. 742-5 (May 3, 2021)
Excerpts from Written Direct Testimony of Lorin M. Hitt,
E-D
Ph.D., D.C. Dkt. No. 745-1 (May 3, 2021)
Excerpts from Apple’s Proposed Findings of Facts and
E-E
Conclusions of Law, D.C. Dkt. No. 779-1 (May 28, 2021)
Epic Games, Inc.’s Notice of Appeal,
E-F
D.C. Dkt. No. 816 (Sept. 12, 2021)
Apple Inc.’s Notice of Appeal,
E-G
D.C. Dkt. No. 820 (Oct. 8, 2021)
Article from 9to5Mac, “Apple describes Epic Games ruling as
E-H
a ‘resounding victory’ for the App Store” (Sept. 10, 2021)
Article from The Verge, “Tim Cook tells Apple employees he’s
E-I ‘looking forward to moving forward’ after Epic ruling”
(Sept. 17, 2021)
Letter from Gary A. Bornstein to Mark A. Perry
E-J
(Sept. 14, 2021)
Screenshots of Unreal Engine Apps on the App Store, (taken
E-K
Oct. 18, 2021)
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system on
November 26, 2021. All participants in the case are registered
CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
/s/ Gary A. Bornstein

Gary A. Bornstein

21-11-26 Epic Games Opposition To Apple Motion To Stay Injunction (9th Cir.)

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Case: 21-16506, 11/26/2021, ID: 12298870, DktEntry: 20-1, Page 1 of 40

Nos. 21-16506 & 21-16695

United States Court of Appeals for the Ninth Circuit

EPIC GAMES, INC.,

Appeal from the U.S. District Court

OPPOSITION TO APPLE INC.’S MOTION FOR

Christine A. Varney Paul J. Riehle

Counsel for Appellant, Cross-Appellee Epic Games, Inc.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Epic

Tencent Holdings Limited owns more than 10% of Epic stock.

CORPORATE DISCLOSURE STATEMENT ...........................................ii

II. APPLE IS UNLIKELY TO SUCCEED ON THE

A. Epic Proved a UCL Violation. ...................................... 15

B. Epic Continues To Have Standing............................... 22

C. Granting the UCL Injunction Was Within the

III. EPIC WOULD BE HARMED BY A STAY. .......................... 28

IV. THE PUBLIC INTEREST FAVORS DENIAL OF A

V. THE COURT SHOULD DENY APPLE’S

Al Otro Lado v. Wolf,

Am. Passage Media Corp. v. Cass Commc’ns, Inc.,

Amylin Pharms., Inc. v. Eli Lilly & Co.,

Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,

Chavez v. Whirlpool Corp.,

City of San Jose v. Off. of the Comm’r of Baseball,

Costco Wholesale Corp. v. Hoen,

Doe v. CVS Pharmacy, Inc.,

Easyriders Freedom F.I.G.H.T. v. Hannigan,

Facebook, Inc. v. BrandTotal Ltd.,

Facebook, Inc. v. BrandTotal Ltd.,

Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd.,

Herr v. Nestlé U.S.A., Inc.,

High Sierra Hikers Ass’n v. Blackwell,

Kilgore v. KeyBank, Nat’l Ass’n,

Kirola v. City & Cty. of S.F.,

LegalForce RAPC Worldwide P.C. v. UpCounsel, Inc.,

Lozano v. AT&T Wireless Servs., Inc.,

Montano v. Bonnie Brae Convalescent Hosp., Inc.,

Ohio v. Am. Express Co.,

Sundance Image Tech., Inc. v. Inkjetmall.com, Ltd.,

United States v. Mitchell,

Statutes & Rules

Cal. Bus. & Prof. Code § 17200 ................................................................. 4

Epic Games, Inc. (“Epic”) respectfully requests that this

injunction pending appeal (“Mot.”).

This case challenges Apple’s conduct relating to its App

their apps to iPhones and iPads. Unlike on personal computers, where

consumers can get software from a variety of sources, Apple makes it

which Apple charges a commission that is typically 30%. Through

so-called “anti-steering provisions” in Apple’s App Store Review

Guidelines ( “Guidelines”), Apple prohibits developers from even telling

the developer elsewhere. Using these restrictions, Apple has

maintained a supracompetitive commission and reaped extraordinary

After a 16-day trial, the district court entered an injunction

against the anti-steering provisions, in order to provide consumers with

information about, and readier access to, competitive alternatives to

Apple’s IAP. The district court found that these provisions

“contractually enforce[] silence” concerning purchasing alternatives

decision, Apple shrugged off the impact of the injunction, dismissing it