Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Epic and Apple scheduled to be back in court as Apple fails to approve Fortnite for U.S. App Store, (May 20, 2025)

By Seth Abrams, J.D., M.A.

Just weeks after the court’s finding that Apple had willfully violated a permanent injunction, Epic sought a second order enforcing the injunction.

The federal district court in Oakland, California ordered Apple, Inc. to show cause why it should not grant plaintiff and counter-defendant Epic Games’ most recent May 16, 2025, motion to enforce enforcing the permanent injunction in parties’ dispute over the placement of Epic’s Fortnite game on Apple’s U.S. App Store. The permanent injunction restrains Apple from prohibiting developers from including outside-of-app third-party purchasing options, such as “external links, or other calls to action that direct customers to purchasing mechanisms, in addition to In-App Purchasing.” Epic, as detailed in the May 16 motion, argues that it had sought approval into the U.S. App Store for its Fortnite App, which was, according to Epic, in compliance with all applicable developer guidelines, including those involving purchasing and subject to the injunction. Apple informed Epic that they will not act on its submission, pending the resolution of the partial stay of its contempt order (Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR (N.D. Cal. May. 19, 2025)).

Background. In August 2020, Epic filed suit against Apple under both Section 1 and 2 of the Sherman Act and California’s Cartwright Act and Unfair Competition Law (“UCL”). Apple counterclaimed for breach of the Developer Program License Agreement (“DPLA”). In September 2021, after a trial, the district court found that Epic failed to establish a Sherman or Cartwright Act violation. The court did find a violation of the UCL and issued the injunction currently at issue. For Apple’s counterclaims, the court found that Epic had breached the DPLA and that Apple was entitled to relief including Apple’s contractual right to terminate its DPLA with any or all Epic entities. According to Epic, Apple informed the court and Epic repeatedly that it would welcome Fortnite back to the App Store “if Epic complied with all of Apple’s Guidelines.”

Recent developments. On April 30, 2025, the district court found Apple had “willfully violated” the injunction and held Apple in civil contempt. Apple then announced it would comply with the contempt order. On May 9, 2025, Epic submitted for review a build of the Fortnite app that was fully in compliance with all applicable App Review Guidelines. It was for the U.S. market. As contemplated by the permanent injunction, the App offered users the option to leave the app and purchase it directly on Epic’s website. It also included the option for In-App Purchase (at a two-dollar premium.) On May 15, 2025, Apple informed Epic via letter that it had determined not to take action on the Fortnite app “until after the Ninth Circuit rules on [Apple’s] pending request for a partial stay of the [Contempt Order.]” In its denial, Apple did not claim that any version of Fortnite that was submitted for review was non-compliant with any of Apple’s policies, rules or Guidelines.

Epic’s argument. Epic claims that Apple’s refusal to review its Fortnite submission violated the injunction. Its assertion of a contractual right to refuse to carry is “subject to the terms” of the court’s injunction and contempt order. Therefore, Apple’s “wait and see” approach is in direct violation of the court’s order to comply with the injunction immediately. This violation, according to Epic, constitutes additional contempt. Epic should be approved because “for the injunction to have teeth, Apple cannot refuse to review an app because the app avails itself of the benefits of the injunction.” To Epic, Apple may reject any app for lawful reasons but may not reject an app because it includes steering as expressly permitted by the injunction. They argued that Apple could prevent the steering “simply by rejecting any apps that do the very thing the [i]njunction is intended to allow.”

Epic’s proposed order. Epic seeks a second order enforcing the injunction to end Apple’s non-compliance. This order would require the review and acceptance of a compliant Fortnite submission onto the U.S. Storefront of the App Store. Epic pointed out that it should be able to take advantage of the pro-competitive rules that it helped bring about. It argued that “[o]rdering Apple to permit a compliant version of Fortnite to return to the App Store that is now more competitive because of Epic’s hard-fought victories is an appropriate use of” the court’s powers.

Show cause order. On May 19, 2025, the court issued an Order to Show Cause as to why the motion should not be granted. In a condensed briefing schedule, the court asked Apple to include the “legal authority upon which Apple contends that it can ignore this Court’s order having not received a stay from the Ninth Circuit Court of Appeal even though its request was filed twelve days ago on May 7, 2025.” The court further ordered the presence of the Apple official who is “personally responsible for ensuring compliance” at a hearing set for May 27, 2025.

The Case is No. 4:20-cv-05640-YGR.

Judge: Rogers, Y.

Attorneys: Benjamin Hans Diessel (Wiggin and Dana LLP) for Epic Games, Inc. Jason C. Lo (Gibson, Dunn & Crutcher LLP) for Apple Inc.

Companies: Epic Games, Inc.; Apple Inc.

Cases: Antitrust CaliforniaNews