• by Wendy Davis  @wendyndavis, July 28, 2023

Fortnite developer Epic Games is asking the Supreme Court to immediately reinstate an injunction that would require Apple to allow developers to add in-app links to outside payment platforms.

In a motion quietly filed Tuesday with Justice Elena Kagan, Epic contends that letting Apple continue enforcing its anti-steering rules -- which prohibit developers from offering in-app links to alternative payment options -- would allow the company “to collect hundreds of millions of dollars in monopoly rents.”

Epic's request marks the latest development in a three-year-old battle between the two companies. The dispute began in the summer of 2020, when Epic began allowing gamers to make purchases directly from its iOS apps.

At the time, Apple required developers to use its payment platform for in-app purchases, and charged a commission of up to 30% on those sales. (In 2021, Apple agreed to allow developers to notify app users by email or telephone -- but not in-app -- about outside payment options.)

Apple then removed Fortnite from the iOS app store, after which Epic alleged in an antitrust complaint that Apple monopolized the iOS app distribution market, and unlawfully required developers to use its payment processing system.

U.S. District Court Judge Yvonne Gonzalez Rogers in Oakland, California, who presided over a trial between the companies, ruled in 2021 that Epic failed to prove its anti-trust claims.

But Rogers also said Apple's anti-steering policy violated California's unfair competition law, and issued an injunction requiring Apple to allow developers to add in-app links to payment options outside Apple's platform.

Both Apple and Epic appealed to the 9th Circuit, which initially stayed Rogers' injunction. But in April, that court upheld Rogers' entire decision -- including the injunction.

Last month, Apple asked the appeals court to again stay the injunction.

The company said at the time it planned to ask the Supreme Court to review the injunction on the grounds that it's too broad because it affects all developers nationwide, not just Epic.

Epic opposed that request, contending that there is “no realistic chance” the Supreme Court will hear Apple's appeal.

Earlier this month, the 9th Circuit Court of Appeals granted Apple's request to stay the injunction while the company attempts to pursue an appeal to the Supreme Court. The 9th Circuit said the stay will expire on October 15, or until the Supreme Court says whether it will hear an appeal -- whichever occurs later.

Epic now says the 9th Circuit should not have granted the stay, arguing that the delay will “injure not only Epic but innumerable consumers and other app developers for a significant period of time.”

The game developer adds that Apple's anti-steering rules “deprive consumers of accurate information that would save them money,” and also “generate for Apple hundreds of millions of dollars annually in supracompetitive profits.”

Apple has not yet responded to Epic's latest argument.