In this third installment of the Antitrust Spotlight on the Epic v. Apple trial, we cover key issues identified by the court during closing arguments and post-trial briefing, as well as the arguments highlighted by the parties, to understand how they approached the final stages of the courtroom battle.
To complete many, if not most, of the classic video games, the player must overcome a final obstacle or a series of obstacles using the strategies and tactics learned playing the game. With much more at stake and the world watching, Epic and Apple entered the closing arguments and post-trial briefing of their federal antitrust trial in the same position. Having listened to the other side and taken questions from the court, both sides had some idea of what arguments were interesting to the court and what needed further support.
Rather than scripted closing arguments, Judge Yvonne Gonzalez Rogers invited the parties to engage in open-ended discussion where she could ask questions (and follow-up questions) with both parties reacting to the questions and the other party’s answer, often referred to as “hot tubbing.” While the judge questioned both sides on a wide variety of issues, three particular themes emerged:
So will Epic make it to the final screen? Has it made it past the last obstacle? The answer will likely be more nuanced than the final triumph or failure in a video game. Judge Gonzalez Rogers seemed almost equally troubled by the lack of competition Apple faces in the App Store and by the daunting challenge of implementing the remedies requested by Epic—remedies that would have a significant effect on the business model of one of the world’s largest companies. She may try to find a way to put a dent in Apple’s armor without actually slaying the dragon. She asked pointed questions about the prohibition against companies even telling their customers that they can go to another device to pay for in-app purchases. She could find that provision illegal without dealing specifically with the 30% fee or opening up the iPhone to other App Stores or even opening up the App Store to other payment processors. But to invoke any remedy, she would have to find that Apple has monopoly power—a finding that would make it hard to address with only small measures. Regardless, both Epic and Apple have multiple lives in reserve. There will undoubtedly be appeals either way. And if Apple wins outright, the failure to rein in Apple under existing antitrust law will be fodder for those in Congress and state legislatures who are prepared to take the battle into their own hands.
So stay tuned—we will continue to follow this epic battle into the next round.
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