Wednesday, March 3, 2021

Epic Games v. Apple App Store antitrust case: written order confirms May 3 trial date, further details of trial format

No surprises here: Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California entered a written order confirming what she already discussed with counsel for Epic Games and Apple on Monday. According to Pretrial Order No. 1, the App Store antitrust bench trial will start on Monday, May 3, 2021 (this post continues below the document):

21-03-02 Epic Games v. Appl... by Florian Mueller

Just like on Monday, it's still unclear how many trial days will be required. Over the next 16 days, the parties will provide different versions of their witness lists to the court. The deadlines for those filings are March 12 (Epic's tentative list), March 16 (Apple's tentative list), March 18 (Epic's supplemental list), and March 19 (either party's consolidated list). There will be another pretrial conference on March 26, and I guess at that one the judge presiding over this landmark case--to me, the most important smartphone litigation ever, eclipsing even Apple v. Samsung and FTC v. Qualcomm--will indicate how many trial days are needed. On Monday, different numbers of weeks were tossed out as hypothetical possibilities. It's hardly going to be shorter than three weeks, I guess.

Trials in that district often have a rhythym that leaves one, two or even three days per week to the court for other matters. That is particularly the case when there are urgent criminal trials that must be held. In this case, however, Judge Gonzalez Rogers expects to be able to hear Epic Games v. Apple every day Monday through Friday.

They'll start early (at 8 AM and finish at 3:15 PM, giving her enough time in the afternoon for orders (related to this case and to others she's presiding over). Considering the time zone from which I'll be following the proceedings, this schedule makes it easy for me to listen to the entirety of the public proceedings.

They will presumably have to "seal the courtroom" on a few occasions, but unlike in a patent licensing dispute, there won't really be too many--if any--private agreements to talk about. This is largely about facts that are public, such as Apple's exceedingly restrictive App Store terms and policies. Third parties like Valve may, howevever, seek protection of some of their sales data.

The order says "[p]ublic access shall be by way of telephone access." The court actually broadcast the audio of Monday's case management conference via its YouTube channel, and my guess is that a YouTube audio stream will be provided again for the actual trial, sure to set a new record for the number of concurrent listeners at least in that district and probably far beyond. As the order notes, "video access is not an option for evidentiary proceedings including trials." In the Ninth Circuit, appellate hearings and sometimes also district court hearings (I remember at least one TRO/PI hearing in the Western District of Washington) are livestreamed with pictures. But in those cases, there are only legal professionals speaking in the courtroom (judge and counsel), not witnesses.

Besides the March 26 pretrial conference, April 7 is also an important milestone. On that day, the parties will file their Proposed Findings of Fact and Conclusions of Law. Those documents will provide an outline of what the parties seek to prove, and how--and, ultimately, what the legal relevance the proven facts should have. The single most important battle here is about market definition, which may create a situation in which Apple would have no chance of successfully defending itself (short of a successful appeal).

In the very short term, the Arizona state legislature is going to vote on an App Store bill introduced by Republican state lawmakers Dr. Regina Cobb and Leo Biasiucci (the majority whip in the Arizona House of Representatives). I wrote about that initiative a few days ago. Apple and Google are fighting against it, but I hope the Grand Canyon State will make technology policy history. I've read that "free market" groups are lobbying on Apple and Google's behalf, but as an app developer I'd like to tell them that those app store regimes are--in their current form--antithetical to the notion of a "free market." Those groups have either failed to understand the problem or they have incentives not to understand.

It's similarly absurd to suggest that the Arizona state legislature would somehow insert itself into the Epic Games v. Apple dispute. Further above I was talking about proposed findings of facts and conclusions of law. None of them would be affected by the Arizona decision in any way. A federal antitrust action in the Northern District of California is not controlled by Arizona state law. "Don't legislate while they litigate" would allow anyone to delay or derail an important piece of legislation by suing someone over the same issue in anticipation of a legislative proposal.

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