Responding to Apple's countersuit, where it proclaimed Epic Games had "stolen" the monies owed it when Epic's own in-app payment mechanism became active, Epic filed a memorandum categorically refuting the claim.
The short filing (one of the shortest entered into the docket at this point) lays out what may be one element of Epic's defense when the trial starts in May of next year. Epic's position in the memo is that Apple is wildly overreaching, attempting to make a breach of contract case into a criminal case, by claiming theft where there was none.
"Simply put, Epic did not 'steal' anything that belonged to Apple," the filing reads in part. "Epic could not and did not 'steal' the proceeds from the sales of its own creative efforts. Nor did Epic interfere with any prospective economic advantage Apple sought to gain from Fortnite users separate and apart from their interest in Fortnite. To the contrary, the only reason that Apple can assert a right to receive any funds from Fortnite users in the first place is that its License Agreement covers sales of Fortnite content. No matter how many times Apple labels Epic’s conduct 'deceptive' or 'devious', the only duties at issue were contractual duties, and California law bars Apple’s attempt to turn a breach of contract into something tortious."
Food For Thought
Reading through the filing, and comparing it to Apple's countersuit, it's exceedingly difficult not to see Epic's points. If, as Epic describes, Apple is acting as an "agent" (from the perspective of legal mechanisms), then any damages Epic may owe from a contract breach are significantly limited. And all of that assumes that the contract itself is not found to be invalid. As mentioned in our overview of the case, the bulk of Apple's case rests on the Developer Agreement and Licensing Agreement contracts being valid, which is to say the terms of the contract do not conflict with existing laws. Epic seems to be fully aware of this, and they may be aiming to get it completely invalidated.