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In the Antitrust Lawsuit against Apple, the Judge Slammed Epic Games for its many Legal Theories, Tactics and Dishonesty

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A new report today revealed that a federal judge presiding over a high-stakes antitrust lawsuit between Apple and Epic Games — maker of the popular video game Fortnite — repeatedly slammed Epic on Monday on its legal theories and tactics in the company's case against the iOS App Store, a court battle that could reshape the digital economy.


Monday's arguments will not determine the final outcome of the lawsuit — only whether Gonzalez Rogers grants Epic's request for a preliminary injunction. But the court clash, which was livestreamed on Zoom, offered a preview of what a jury could hear next summer, as well as a peek into the judge's early views in the case.


Judge Gonzalez Rogers looked skeptically at many of Epic's claims, explicitly telling the company several times in the hearing she was not persuaded by its arguments or its strategy.


Epic knew that it was breaching its contract with Apple when it published the update, but did it anyway, she said, accusing the company of dishonesty.


"You did something, you lied about it by omission, by not being forthcoming. That's the security issue. That's the security issue!" Gonzalez Rogers told Epic. "There are a lot of people in the public who consider you guys heroes for what you guys did, but it's still not honest."


Nor did the judge buy Epic's argument that Apple has harmed the distribution of Fortnite because of Apple's exclusive control of the iOS App Store. Fortnite players on iOS have a variety of choices to access the game even if it is no longer available on iOS, she said.


"Walled gardens have existed for decades," she said. "Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple's doing is not much different... It's hard to ignore the economics of the industry, which is what you're asking me to do."


Epic's attorneys acknowledged that the company breached its agreement with Apple but claimed Epic was simply refusing to comply with an anti-competitive contract, and that forcing a legal battle was part of Epic's plan.


"When you are taking on the biggest company in the world, and you're taking it on where you know it's going to retaliate, you don't lie down in the street and die," said Epic's attorney, Katherine Forrest. "You plan very carefully on how you're going to respond."


The case is considered a potentially landmark suit, one that tests the frontiers of antitrust law, said Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California. She did not give a timeframe for a decision on the injunction. She also said that given her schedule, the case is not likely to go to trial until July 2021. And, she added, she would prefer the case be tried before a jury.


Apple lawyer Ted Boutrous stated that "Mr. Sweeney is trying to be the Pied Piper of other developers" He added that Epic wants others to "cheat, breach [their] agreement [and] sneak in software to bypass app review." For more on this, read the full CNN report. The  NYTimes also covered this story today.  


10.4F - Patently Legal


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