• by Wendy Davis  @wendyndavis, August 9, 2023

Supreme Court Justice Elena Kagan on Wednesday rejected Epic Games' request to immediately restore an injunction requiring Apple to allow developers to offer in-app links to outside payment platforms.

Kagan did not give a reason for her decision. The move leaves in place a 9th Circuit Court of Appeals order pausing the injunction while Apple pursues an appeal to the Supreme Court.

Kagan's decision marks the latest development in a long-running battle between the Fortnite developer and Apple over its former policies.

The legal dispute dates to the summer of 2020, when Epic said it would allow gamers to make purchases directly from it, in violation of then-existing Apple's policies.

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. Epic then 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 ruled in 2021 that Epic failed to prove its antitrust claims. But she also ruled that Apple's anti-steering policy -- which prohibited developers from offering in-app links to outside payment platforms -- violated California's unfair competition law.

She 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. In April, that court upheld Rogers' entire order -- including the injunction.

Apple said it planned to appeal to the Supreme Court and asked the 9th Circuit to continue to stay the injunction pending a decision by the Supreme Court. Last month, the 9th Circuit agreed to pause the injunction until October 15, or until the Supreme Court says whether it will hear an appeal -- whichever occurs later.

Epic then asked the Supreme Court to immediately restore the injunction, arguing that a delay will harm “innumerable consumers and other app developers for a significant period of time.”

The game developer added 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.”