The claims of conversion and unjust enrichment, which Apple alleges as tantamount to theft, are the ones which Apple was seeking compensatory and punitive damages for. The alleged "theft" was in relation to additional profits made by Epic as a result of an in-game purchasing system, which gave Apple a reduced cut.
In a hearing yesterday, the judge informed one of Apple's lawyers that the claims were being tossed out, saying, "This is a high-stakes breach of contract case and an antitrust case and that’s all in my view. You can’t just say it’s independently wrongful. You actually have to have facts."
Two weeks ago, Epic Games had replied to the countersuit, stating, "Epic could not and did not 'steal' the proceeds from the sales of its own creative efforts."
In a statement to Bloomberg, Apple expressed their disagreement with Judge Rogers' dismissal of their claims, but made it clear they do agree with her on the breach of contract elements.
"Epic enabled a feature in its app which was not reviewed or approved by Apple, and they did so with the express intent of violating the App Store guidelines that apply equally to every developer who sells digital goods and services. Their reckless behavior made pawns of customers, and we look forward to making it right for them in court next May."
Food For Thought
Apple's countersuit has already taken one hit from this, which suggests that other counts outside the specific breach of contract count could suffer the same fate. It's interesting to note that Apple has brought in a number of additional lawyers, all of whom seemingly have significant experience in anti-trust law. Also interesting is that the lawyer who represented Apple at the hearing, one Anna Casey, was listed as pro hac vice ("for the event," used for lawyers who are not normally licensed in a jurisdiction to appear in court for a specific case). It may be Apple realizes it needs to drop the histrionics and is getting a more sober legal team in place when the trial starts in May.