Yesterday’s opening hearing in the Apple v. Epic Games case, conducted remotely, saw restatements of the litigants’ positions and Judge Yvonne Gonzalez Rogers commenting on them. Being an opening hearing, rather than an actual trial, very little substantive progress was made.
Epic’s request for an injunction to get Fortnite put back on the App Store was the centerpiece of the hearing. Judge Rogers seemed disinclined to simply force the matter. “In general, federal courts don’t issue injunctions on contractual dispute, and that’s what this is,” she said. However, she did propose a compromise: Apple could let Fortnite return if all the monies from iOS purchases collected by Epic were placed in an escrow account to be disbursed once the trial was concluded. Apple indicated they would need to confer with executives. Epic, on the other hand, flatly refused, saying the court should not encourage “unlawful provisions by monopolists.” Judge Rogers replied, “I didn’t buy that argument before I’m not particularly impressed with it now.”
With regards to the TRO in place prohibiting action taken against Epic’s Unreal Engine developer account, Judge Rogers indicated that would remain in place for the time being, stating that the “harm to the public would be incredibly high.” She also agreed with Epic that Apple’s characterization of Unreal Engine as a potential Trojan horse was unconvincing, dismissing the notion that “everything is going to explode because the Unreal Engine is allowed to operate.”
As for Apple’s request for a jury trial, Judge Rogers appeared to be inclined to grant it, saying, “This case should be tried to a jury… I think it’s important enough to understand what real people think. Do these security issues concern people or not? Are the concerns of the developers incredibly important? I think many people would feel it is. I do think that this is something for which jury insights would be important. Otherwise it’s just one more judge.”
A written decision should be forthcoming shortly. A trial date should be set sometime in July 2021.
