Changes to Apple App Store can remain on pause, Supreme Court says

WASHINGTON (CN) — Justice Elena Kagan refused on Wednesday to force Apple to make changes to its App Store while a legal fight between the tech giant and the maker of the popular game Fortnite, Epic Games, is appealed to the high court.

Epic Games filed an emergency application asking Kagan to block a pause on a lower court ruling that would force Apple to allow developers to include external links in apps in the App Store. The ruling was put on pause by the Ninth Circuit.

Without referring the application to the full court, the Obama appointee declined. Kagan did not provide an explanation for her decision.

Apple requires all apps distributed through its App Store and in-app purchases to go through it, allowing Apple to charge commission on downloads and transactions. Apple has included an anti-steering provision that prevents companies from circumventing Apple’s in-app purchase requirement by using external links to direct customers to make purchases elsewhere.

Epic Games sued Apple, claiming these practices were anticompetitive and violated antitrust laws.

The district court in northern California ruled against Epic on the antitrust claims but said Apple’s anti-steering provisions were unfair under California law. The court entered a permanent injunction barring Apple from blocking external links on developers’ apps.

After initially pausing the injunction, the Ninth Circuit affirmed the lower court’s judgment on the violations of California law earlier this year. Both sides were left unhappy with the appeals court ruling but the panel denied cross-petitions for rehearing. Apple, however, was able to convince the Ninth Circuit to pause the mandate while petitioning the Supreme Court for review. The stay prevents Apple from having to alter its App Store until after the high court weighs in.

Epic urges the justices to throw out the lower court stay because the appeals court that issued it follows a conflicting standard for stay applications. The Supreme Court says it only grants stays in cases that it might later review and reverse. However, the Ninth Circuit follows a looser standard and offers a stay whenever the legal argument before it is not frivolous.

“Because the Ninth Circuit in this case granted a stay only by applying its erroneously lax legal standard, and because the result will be to injure not only Epic but innumerable consumers and other app developers for a significant period of time, this court should vacate the Ninth Circuit’s stay,” Thomas Goldstein, an attorney based in Washington, D.C., representing Epic Games, wrote in its petition.

Apple argued the Ninth Circuit applied the correct legal standard and that Epic’s application is asking for something outside of the norm.

“Because the Ninth Circuit applied the correct legal standard, Epic has no basis for seeking vacatur of the stay order,” Mark Perry, an attorney with Weil, Gotshal & Manges representing Apple, wrote in the company’s brief. “To obtain the requested relief, Epic must establish both that the order is ‘demonstrably wrong’ and that Epic will be seriously and irreparably injured’ by a stay that merely preserves the status quo. Epic has made neither showing, nor could it.”

Apple also said the stay supports maintaining the status quo while legal proceedings in the case continue.

Attorneys for Epic Games and Apple did not immediately respond to requests for comment on Kagan’s decision.

Follow @KelseyReichmann Follow @kelseyreichmann.bsky.social