Judge proposes a jury trial for the Apple vs Epic case, likely to start in July 2021, while seemingly pushing back on some of Epic's key points in the hearing

During Monday's hearing for Epic and Apple's legal battle over the App Store and “Fortnite,” the judge suggested that the public's opinion …

AppleInsider 2020-09-29 Malcolm Owen

Context & Ripple Effects

At Monday's hearing the judge did two things at once: she floated a jury trial likely to start in July 2021, and she appeared skeptical of several of Epic's core arguments about the App Store. That combination matters because Epic filed its injunction suit hoping for fast relief, and the hearing signaled neither speed nor sympathy.

The procedural picture then inverted: within days, both Apple and Epic stated in a court filing that they preferred a bench trial decided by a judge, not a jury. The case ultimately reached trial in May 2021, closing with extended argument over how to define the relevant market, with a verdict expected only after months of deliberation.

First-order effects

Epic's request for quick injunctive relief effectively dies at this hearing: with the judge proposing a mid-2021 trial and pushing back on Epic's framing, 'Fortnite' stays off iOS through the litigation runway rather than returning promptly.
Apple gets a favorable signal early — the doubts raised from the bench suggest the judge may not accept Epic's characterization of the App Store as a monopolized market without proof.

Second-order effects

Both parties' rapid pivot to requesting a bench trial shows each side concluded a jury was the worse option — Epic to avoid a consumer-sympathy test it might still lose, Apple to keep the technical antitrust questions before the judge who will rule on them.
The trial calendar stretches the dispute into a multi-quarter affair, forcing both companies to litigate with the App Store arrangement operating under legal uncertainty rather than a near-term court-ordered change.

Third-order effects

With the judge signaling she wants full factual development and taking months post-trial to decide, the outcome hinges less on courtroom theater than on the market-definition question that dominated the final day — meaning the ruling will turn on whether app distribution is one market or many, the same framing regulators worldwide now apply to platform gatekeepers.
If the pattern holds, disputes over app-store commissions get resolved by individual judges applying antitrust doctrine rather than by legislatures or regulators, making judicial market definitions the de facto rulebook for digital storefronts.

The trend: Platform gatekeeping fights are being settled judge-by-judge through antitrust trials, where how a market is defined increasingly decides the fate of app-store economics.

Discussion

@patrickmcgee_ Patrick McGee on x
Apple-Epic hearing started a few minutes early. “We are going to be hear for hours, I suspect,” says Judge Gonzales, who threatens to mute people if they regurgitate arguments she's already aware of. Thread begins...
@b_fung Brian Fung on x
This is a brutal hearing for Epic. The judge is very skeptical.
@b_fung Brian Fung on x
Kind of a backhanded compliment by the judge about Epic's media strategy: “Your marketiing campaign has been applauded, given your conduct.”
@patrickmcgee_ Patrick McGee on x
Gonzales begins by grilling Katherine Forrest - Epic's lawyer - and says it's not acceptable Epic hasn't produced documents for discovery. “Well, Apple has already produced. So, I find it to be convenient for you, not convenient for anybody else.”
@b_fung Brian Fung on x
The judge is getting pretty heated now. She says Epic “lied” and accuses it of dishonesty for implementing the hotfix despite being told in the contract with Apple not to.
@b_fung Brian Fung on x
Apple's lawyer: “What Epic wants to do here is open its own store within the App Store. That's really what this litigation is about, that's really its objective. ... That is a fundamental disagreement with the way Apple has chosen to do business.”
@slasher Rod Breslau on x
recapping today's Apple vs Epic hearing: Fortnite isn't going back on the app store yet, this case is going to take a long, long time, and the judge has suggested a jury hear this one out next year
@patrickmcgee_ Patrick McGee on x
Apple lawyer says Epic doesn't need the court's help — it can just fall into compliance and avoid any harm, then proceed with its lawsuit. Epic's Forrest: “the evidence has been completely mischaracterized....we have millions of people who will be directly affected.”
@patrickmcgee_ Patrick McGee on x
Apple lawyer Boutrous *agrees* it would “address a lot of the issues” — but he'll have to ask Apple — for Fortnite to re-enter the App Store w/ 30% fee going into escrow. Epic disagrees though. “this court should not give its assistance to unlawful provisions by monopolists...”
@b_fung Brian Fung on x
Judge YGR to Epic: “There's that old saying, ‘A rose by any other name is still a rose.’ You did it yourself. It's self-help.”
@fnbrhq Mikey on x
Epic Games & Apple Trial dates: • Oct 5th-Final initial disclosures • Oct 12-Complete objections • Oct 19th-Case management conference • Both Epic & Apple have to complete a document production and data by Jan 6th 2021. #Fortnite
@patrickmcgee_ Patrick McGee on x
Potentially *big development*: “I think personally this case should be tried to a jury,” Judge says. “I know I'm just a stepping stone for all of you. Whoever loses is going to take it up [appeal] and say everything I did was wrong. That's what litigators do.” Thread here: https:…
@patrickmcgee_ Patrick McGee on x
On to schedules. Epic's Forrest: We'd urge the court for the shortest schedule possible... “Important we get to trial as quickly as possible.” Apple's Doren: Document production by early January is reasonable. Epic wants depositions from Jan4-Feb5, we'd extend that by ~3 weeks.
@hoeglaw Richard Hoeg on x
If the Judge goes for “surreptitious hotfix is a security issue” then say goodbye to Unreal. https://twitter.com/...
@letitmelo Melo on x
I can't believe the company that lavishly produced anti-apple propaganda aimed at children with the intent of instigating a prepubescent hate mob would be in any way morally compromised. https://twitter.com/...
@b_fung Brian Fung on x
Apple's lawyer adds that Epic's stat about 63 percent is misleading. “That just tells us if we look at everyone who has ever opened Fortnite on iOS, that they didn't use others... perhaps they looked and lost interest, we don't know.”
@patrickmcgee_ Patrick McGee on x
Judge YVR again doesn't buy the argument for irreparable harm: “There's no case law that says that, 'our company is losing some millions and so therefore that's a reparable harm. There's no case law to support that.”
@duckybtw DuckyTheGamer on x
Apple agreed to a temporary fix for the issue, but Epic seems to have denied it, keeping the App of the App Store indefinitely until the lawsuit concludes. I might be wrong, but that's my understanding.
@patrickmcgee_ Patrick McGee on x
Ouch. Judge YGR: “There are plenty of people in the public who consider you guys heroes for what you did — but it's still not honest.”
@migueldeicaza Miguel de Icaza on x
From the Epic vs Apple thread, this going into appeals for years was my guess. So the proposed 1 year process is going to extend for years. Comparison point: Oracle vs Google has been in the courts for 10 years now, heading to the Supreme Court in a couple of weeks. https://twitt…
@duckybtw DuckyTheGamer on x
From what I understand, nothing was accomplished in today's court hearing. There will be further court hearings and meetings in the upcoming days/weeks to help come to a conclusion on the injunctions. But, Epic has made it clear they think they are right and Apple is wrong.
@patrickmcgee_ Patrick McGee on x
Judge YVG says, “What if” the 30% went into some escrow account?" — Will Apple let Fortnite back on, and will Epic agree to go back w/o their own payment option, but all monies go into escrow? Yes or no?
@patrickmcgee_ Patrick McGee on x
Judge rules out June for a trial date, b/c of class-action case she has. “I think you're looking at a July trial date.”
@b_fung Brian Fung on x
Epic's lawyer responds that 63 percent of people who play Fortnite on iOS play it “only on iOS” and that Epic has lost access to those consumers.
@b_fung Brian Fung on x
Judge YGR: “Walled gardens have existed for decades.” Cites Nintendo, Sony, Microsoft. “It's hard to ignore the economcis of the industry, which is what you're asking me to do.”
@patrickmcgee_ Patrick McGee on x
Judge YGR, re Epic's “hot fix” in-app purchase circumvention: “You were not forthright. You weren't. You were told, you couldn't do it. And you did. You know, there's an old saying, a rose by any other name is still a rose. I mean, you can try all you want...” Thread here: https:…
@fnbrhq Mikey on x
Apple has confirmed That if Epic reverted the payment processing system, they would put the game back on the App Store. #Fortnite
@b_fung Brian Fung on x
The judge isn't persuaded that people who've lost access to Fortnite on iOS can't simply switch to another device.
@slasher Rod Breslau on x
this wasn't a good hearing for Epic. the judge isn't persuaded that Epic came into this with clean hands and the right intentions, and Apple's offer to have Fortnite put back on iOS without Epic payments was rejected. gonna be a long time until Apple users can play Fortnite
@patrickmcgee_ Patrick McGee on x
Epic is doing pretty poorly, and Apple pretty well, in the first 45m of today's hearing. Focus has been on establishing the iOS platform as an aftermarket with excessive fees. Judge not buying it. Live-tweeting here: https://twitter.com/...
@b_fung Brian Fung on x
Back on the stream. Judge Gonzalez Rogers seems very skeptical of Epic's case that this right now is about iOS app distribution. “You want access to Apple's customer base. That doesn't necessarily mean you're locked in,” she says.
@italkfortnite @italkfortnite on x
Console sales for this Christmas are gonna skyrocket since mobile players are going to have to wait a bit longer. https://twitter.com/...
@patrickmcgee_ Patrick McGee on x
Harsh words from YGR, re Epic's “hot fix” in-app purchase circumvention: “You were not forthright. You weren't. You were told, you couldn't do it. And you did. You know, there's an old saying, a rose by any other name is still a rose. I mean, you can try all you want...”
@b_fung Brian Fung on x
This is seemingly a very different take than what the judge outlined at the last hearing, when she indicated that she is very familiar with the research literature on consumer switching costs and effective barriers to competition.
@b_fung Brian Fung on x
The more relevant stat, Apple argues, is that less than 10 percent of Fortnite's daily average playerbase accessed the game on iOS, implying that consumers have lots of choice when it comes to getting to Fortnite (and thus Apple's action against Epic isn't anti-competitive).
@halsinger Hal Singer on x
Yeesh. The antitrust question isn't whether 30% seems high, but rather whether the platform employs a restraint that supports the 30% tax—that is, whether the platform's tax would be lower absent the restraint. https://twitter.com/...
@patrickmcgee_ Patrick McGee on x
Bad development for Epic. Judge YGR: “Mr Bornstein, I just don't see this as a separate and distinct product.” (That is, court — so far — is not agreeing that in-app purchases are a distinct product from downloading apps.) thread here: https://twitter.com/...
@patrickmcgee_ Patrick McGee on x
“If Epic would just come into compliance, it can free Fortnite. It can free Unreal Engine by just complying [with] what it owes, and we have a trial and summary judgment and proceed. And that will protect the public.” - Apple's Boutrous
@matthewstoller Matt Stoller on x
Oh wow Judge Yvonne Gonzalez Rogers says she wants the Epic vs Apple case tried in front of a jury, basically because she thinks appellate courts are reckless in overturning judicial decisions. Smart.
@kifleswing Kif on x
Judge Rogers kicks off Epic Games, Inc. v. Apple Inc. — “This is going to be a long hearing.” Strap in.
@b_fung Brian Fung on x
The debate right now is over how to define the market that Apple is allegedly monopolizing. Judge Yvonne Gonzalez Rogers is pushing Epic on its claim that the relevant market is iOS app distribution, asking why it isn't “video games” writ large.

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