Earlier this evening, Apple filed a reply brief with the Court of Appeals for the Ninth Circuit, arguing multiple points why the court should either reverse Judge Yvonne Gonzalez Rogers’ 2021 decision, or vacate the new injunction and assign a new judge to the case. Here are the details.
‘Indefensible’, ‘overbroad’, and ‘flawed’
In a 42-page document, Apple minces no words to refute both Epic Games’ arguments and the district court’s ruling, particularly regarding the “improper expansion and modification of the original injunction,” which Judge Rogers ordered in April’s civil contempt finding.
The new injunction, Apple argues, unlawfully expanded the scope of the original decision:
The injunction breaches well-established guardrails on the civil contempt power, and its sweeping new restrictions on Apple violate several independent limits, including the Constitution itself.
Throughout the document, Apple quotes more than 40 prior rulings to make its case, and resorts to four main arguments why Epic’s appeal is unfounded:
- Epic fails to seriously defend the district court’s zero-commission rule on linked-out purchases, which in effect imposes a perpetual penalty on Apple.
- Epic cannot justify the new injunction’s other restrictions and the district court’s underlying contempt findings.
- Epic fails to confront the fact that the California courts’ intervening judgment in Beverage v. Apple, Inc., (…) directly conflicts with the district court’s judgment here, premised on the same California law.
- Epic urges this Court to ignore the Supreme Court’s landmark decision in Trump v. CASA (…), which, at a minimum, requires substantially narrowing the scope of the district court’s injunction.
Apple argues that “the district court’s new zero-commission rule is indefensible,” as it “denies Apple compensation for use of its IP-protected innovations.” Apple calls this “the most extreme component of the district court’s new injunction,” and argues that it is “untethered to Epic’s claimed hard, punitive, and unconstitutional.”
The company also says that while the new injunction should be reversed because it relies on privileged documents (which we covered here), the original injunction is also unlawful, in light of a recent Supreme Court decision that found that federal judges do not have freestanding authority to issue so-called universal injunctions (which we also covered here).
In its concluding argument, Apple states the following:
This Court should reverse the district court’s contempt order and denial of Apple’s Rule 60(b)(5) motion. In the alternative, the court should vacate the new injunction and reassign this case to a different district judge for any further proceedings necessitated by this Court’s decision.
This is not the first time Apple has asked for the case to be reassigned to a different judge. In June, the company filed a similar document with multiple requests, including vacating the new injunction that bans all commissions on external purchases, reversing the civil contempt finding, and reassigning the case to a new judge if it goes back to the district court.
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