Tuesday, August 2, 2022

Epic v. Apple judgment: 271 typos and similar errors identified, not even Apple's name and Tim Cook's title are correct--SLOPPIEST antitrust decision in U.S. history?

The headline of this post would have begun with "Northern DisGRACE of California" or "Total Disaster of California" if I didn't have the greatest respect for the United States District Court for the Northern District of California as an institution--and for all the judges there who work incredibly hard and smart. It would be utterly unfair to make it sound like an absolute outlier, which may even be unprecedented among high-profile commercial disputes decided by the U.S. Federal Judiciary in more than two centuries, was representative of that top-notch court's work.

But Epic Games v. Apple is far too important a case that I could turn a blind eye to what has gone wrong so far. It's unbelievable that last year's ruling has literally hundreds of typos, punctuation mistakes, inconsistencies, and similar errors. Prior to Epic v. Apple, I had never seen anything like that in a high-profile case. Now I've finally found the time to document 271 mistakes of that kind (33-page PDF):


Some of the errors would be funny if the context wasn't so serious:

What's also remarkable is that Judge Yvonne Gonzalez Rogers is totally inconsistent in various ways:

  • In the majority of cases, she uses the Oxford comma (comma before final part of enumeration), but in a minority of cases she doesn't.

  • Sometimes she forms the genitive of names ending in the letter S with only an apostrophe ("Dr. Evans' SSNIP analysis" or "American Express' prohibiting steering"), sometimes with an extra S ("Dr. Evans's analysis" or "American Express's rewards program"). Those inconsistencies are often even find within the same paragraph, or only a few paragraphs apart.

  • In some cases, she correctly places a comma before "which" subclauses that don't serve to narrow the meaning of the noun they refer to, but in many cases she omits it.

  • In one sentence, "Mac" has no article; in the very next sentence, it's "the Mac."

  • After finishing the document shown above I even identified another inconsistency: sometimes "e.g." is italicized, sometimes it isn't. That would even increase the number of errors, but 271 is already a pretty high number and there is always the possibility of someone disagreeing with me on one detail or another, so I'm fine with understating the extent of the problem.

One mistake occurs with a consistency of 100%: when she refers to Epic as "plaintiff" (though it's always "Plaintiff" in U.S. court rulings when the plaintiff in the present case is meant), she doesn't capitalize that term (except at the beginning of sentences).

How could this happen? Why didn't anyone care to proofread the document before it was published last September? Judge Gonzalez Rogers knew that a significant part of the digital economy was watching the case with great interest--not only, but also including many app developers (like me). She had no firm deadline. She could have taken another couple of days. In fact, it took me only about 20 hours of work to document all those errors with screenshots. It would have taken only about a day to simply fix them.

If one actually wanted to take that document to the level of editorial quality one usually sees in the Northern District of California, hundreds of additional edits would be needed (far more commas, but also other edits such as more suitable prepositions). In that PDF I tried to focus on only the clearest deficiencies.

As the preliminary note of that document explains, it would be possible, at least in theory, that a judge publishes a decision with hundreds of typos and similar errors, but nevertheless gets the facts and the law right. Regrettably, the absurdity of saying that Apple's market share in smartphone operating systems is substantially greater than in smartphones--even though there is clearly a one-to-one relationship as each iPhone or iPad comes with iOS, and iOS cannot be purchased separately from an iPhone or iPad--is a lot worse than those 271 typos and similar editorial shortcomings combined. With respect to the foremarket part of Epic's single-brand market argument, the judge was wrong on the law (Kodak), wrong on the economics, and wrong on the technology.

Market definition is almost always the most critical part of an antitrust case, comparable to claim construction in patent infringement litigation. The formal market definition the judge adopted--"digital mobile gaming transactions"--is also flawed because all mobile gaming transactions are digital, period.

Hopefully, the United States Court of Appeals for the Ninth Circuit will get that litigation back on track. I wish to stress that my positions are not coextensive with those of a party or any of the amici curiae. I may be the only public commentator to take the following combination of positions:

  • A single-brand market definition is warranted.

  • On that basis, Apple should be found to violate the Sherman Act.

  • Epic is right on tying.

  • Epic and some of its amici may be right that the case law makes Section 1 applicable even to contracts of adhesion, but for policy reasons I understand the judge, Apple, and some of Apple's amici who disagree.

  • It might be possible to decide the case in Epic's favor even with the district court's market definition, but I'm unconvinced that Epic can realistically win on that basis. (Between now and the appellate hearing, I'll give this more thought.)

  • I agree with Apple's narrow interpretation of the injunction under California Unfair Competition Law, and also with Apple and its amici that the state UCL injunction--sort of a consolation prize for Epic--should be reversed. In other words, I agree with both appeals: with Epic on federal antitrust law, and with Apple on state UCL.

No one even knew that I was working on the document I published today. It was my own initiative because I believe the facts must be put on the table. There is so much at stake for the digital economy.

In a way, Judge YGR sensed during last year's trial that app developers are at Apple's mercy. Her deposition of Tim Cook was world-class, and it even seemed she had understood the Kodak problem: Apple can behave in all sorts of ways in the app distribution aftermarket without being adversely impacted in the smartphone operating system foremarket.

She also made a remark in mid-trial that was totally spot-on: competition can spur innovation and, in turn, enhance security.

But ultimately she sided with Apple on the key questions, like she previously did in the Pepper consumer class action over the App Store tax. That's presumably why some new plaintiffs would rather have their Apple antitrust cases decided by any other judge in that district.

I'm cautiously optimistic about Epic's appeal. The amicus briefs in support of Epic's appeal are extremely strong (formally, the Biden Administration made its submission in support of neither party, but all the points it raised favor Epic). When the circuit judges and their clerks prepare for the hearing, they'll see the glaring shortcomings of Judge YGR's decision. Those hundreds of typos and similar mistakes won't go unnoticed, and while it's not the appeals court's task to fix typos, the editorial shortcomings of that document won't enhance its credibility. And some of the errors are easily identifiable. That decision doesn't deserve much deference.