Wednesday, October 19, 2022

11/Fortnite/22: Epic Games v. Apple appellate hearing to take place on November 14 (originally scheduled for Friday)

Due to the unforeseen unavailability of a panel member, the United States Court of Appeals for the Ninth Circuit had to postpone the Epic Games v. Apple hearing that was originally scheduled for Friday (October 21). Fortunately, the delay is limited: the appeals court just gave notice of a new hearing date: Monday, November 14, 2022, at 2 PM Pacific Time. The location is still San Francisco, of course.

This has already been confirmed by counsel for the parties as well as the United States Department Of Justice. [Update] As expected, Joshua Patashnik for Amicus Curiae State of California has also confirmed. [/Update]

Here's a screenshot of the hearing notice and the three acknowledgments (click on the image to enlarge):

Much to my relief, the hearing is still going to take place this year. I was a bit worried because Apple appeared to be stalling when the Ninth Circuit was scheduling the original hearing date. On June 29, 2022, Epic formally objected to Apple's request to set a date later than the fourth-quarter court sessions for which the Ninth Circuit wanted to know counsel's availability. On October 31, a jury trial will (or was expected to) begin and Apple's appellate counsel, Mark Perry (formerly of Gibson Dunn, now Weil Gotshal), described that one as an "actual conflict." For this present week, he couldn't assert an "actual conflict" and merely "request[ed] that argument be set for a later date if possible" so as not to affect his "final pretrial preparations." Epic explained that this was just a "scheduling preference" and reiterated the urgency of the case given that an injunction has been stayed pending the appeal.

Apparently a mid-November hearing date now works for Mr. Perry as well (maybe the other case got settled).

In my previous post on this case I have summarized why I'm very optimistic for Epic.

I'm pretty sure the case will end up before the Supreme Court, but the question is which party will have to seek cert and on what basis.

11/Fortnite/22--that's my mnemonic for the new hearing date. But as I said in my previous post (on Microsoft's plans for a cross-platform app store) and on some earlier occasions, Epic v. Apple is not merely the Fortnite case. It's very much about the Epic Games Store. The world needs third-party app stores on iOS (and Android).