Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California is still working on her decision on Epic Games' motion for a preliminary injunction against Apple. At last week's hearing, she wasn't totally convinced of Epic's claim that it was likely to win this case when all is said and done. And it's practically impossible for Epic to deny that Fortnite's removal from the App Store was of its own making (as Google calls it in a parallel case in San Francisco).
In this context I'd like to point you to an article by North Carolina (Epic's home state) newspaper The News&Observer on many Fortnite players preferring to play the game on other devices than iPhones, and Fortnite no longer being as interesting as it used to be, as other games now offer some of the same features. That article appeared before the preliminary injunction hearing, but I just spotted it today on Twitter.
Meanwhile Judge Gonzalez Rogers has set a firm start date for the trial: Monday, May 3, 2021, starting at 8:30 AM (this post continues below the document):
This will be a bench trial, i.e., before Judge Gonzalez Rogers and without a jury. Epic's complaint didn't request a jury trial and sought only non-monetary relief, so Apple couldn't have requested a jury trial, but what Apple did was to bring counterclaims involving damages and request a jury trial over that one. As a result, the federal judge would have had to hold two trials, so she urged the parties to agree on one trial format, for which her clear preference would have been a jury trial. Surprisingly, Apple withdrew its demand for a jury trial as part of a procedural agreement with Epic to hold a bench trial on both parties' claims.
This gave the court greater scheduling flexibility, as the SARS-CoV-2 crisis complicates jury trials. This might be a videoconference as the order says "[t]he Court will determine closer to the trial date whether the bench trial will be conducted in person or virtually or some combination thereof." The "combination" would probably mean that many witnesses would testify via Zoom, while counsel for the parties would be present in an Oakland courtroom.
Epic will get its day in court against Apple much closer to its own preferred trial date, which would have been March 29 or April 25, than to Apple's suggestion (August 2)--and even three weeks earlier than Epic's "compromise 8-month-to-trial schedule" would have envisioned. But at the time Apple's position was still that its counterclaims should be put before a jury. A lot has been in flux lately.
A jury trial will be necessary in the related Pepper (consumer claims) and Cameron (app developer claims) class action cases. Apparently the court will hold those jury trials in the summer of 2021, but this very much depend on the impact of covid and when it will be possible for juries to safely meet in a room to deliberate.
The court is really trying to be a rocket docket, with a discovery cutoff date except for the parties' appointed economic and technical experts set for February 15, 2021.
A case management conference had previously been scheduled for October 19, 2020. Also, Epic has recently brought a motion for judgment on the pleadings (similar to summary judgment) on some of Apple's counterclaims, for which Epic would like a hearing to be held next month.
Finally, I'd like to mention that a Congressional report, Investigation of Competition in Digital Markets, was released yesterday and among various other subjects also discusses "mobile app stores." Just a couple of quotes:
"There are no competitive constraints on the power Apple and Google have over the software distribution marketplace on their mobile ecosystems."
"Because of the control that Apple and Google exert over software distribution on their mobile ecosystems and the unlikelihood of entry by a new competitive mobile operating system, it is unlikely that a new, competitive app store will be able to successfully challenge the existing, dominant app store operators."
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