Approximately 20 hours before the deadline Judge Edward Chen gave Apple to respond to Epic Games' motion for a temporary restraining order (TRO) with respect to Epic Games' access to the App Store and Apple's developer tools, two high-profile L.A.-based antitrust lawyers just appeared (electronically) before the United States District Court for the Northern District of California as counsel for Apple:
Daniel G. Swanson, who co-chairs Gibson Dunn & Crutcher's Antitrust and Competition Practice Group, and
Richard J. Doren, a member of the same firm's Executive Committee.
[Update] Just after this post went live, a third Gibson Dunn partner, Jay P. Srinivasan, appeared as well. [/Update]
Gibson Dunn frequently represents Apple as well as parties whose interests are aligned with Apple's. The two most important cases of this kind that I've followed are the second Apple v. Samsung case in the Northern District of California and the Apple v. Qualcomm antitrust and contract litigation in the Southern District of California. In the latter case, Gibson Dunn worked for Apple's contract manufacturers (Foxconn/Hon Hai, Pegatron, Compal, and Wistron)--and squared off with the very firm on the other side that filed Epic Games' complaints against Apple and Google: Cravath, Swaine & Moore of New York City.
The first Epic Games v. Apple court clash is presently scheduled to take place on Monday in the form of a Zoom videoconference.
Epic's motion for a temporary restraining order (TRO), a type of court order that comes down even faster and is even more preliminary in nature than a preliminary injunction, faces a high hurdle. The court is almost certainly going to ask why Epic can't just live and comply with the same app developer agreement it had been honoring for years, gladly making a billion-dollar amount, while this litigation is ongoing. Monetary damages would be available even though Epic is so far seeking only injunctive relief. But U.S. courts generally don't enjoin a party if the movant can be made whole at a later stage by means of a payment. This vaguely reminds me of a long shot the Cravath firm already tried for Qualcomm in 2017. They totally unsurprisingly failed to obtain--preliminary injunctions against Apple and the aforementioned four contract manufacturers to enforce royalty payments.
Counsel for Epic may also have to explain why at least one aspect of the TRO they are seeking against Apple--Fortnite's availability on the App Store--isn't being pursued through a similar motion against Google in the same district, at least not yet.
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