Tuesday, October 18, 2022

POSTPONED: Epic Games v. Apple appellate hearing (originally slated for Friday) must be rescheduled due to unforeseen unavailability of panel member

No "Friday for Fortnite" in San Francisco--at least not this week's Friday (October 21), the day for which the Epic Games v. Apple appellate hearing had originally been scheduled.

I just checked the Ninth Circuit docket and found the following notice (click on the image to enlarge or read the text below the image):

10/15/2022   197   Filed clerk order (Deputy Clerk: SVG): Due to the unforeseen availability of one of the panel members, the hearing in these appeals scheduled for October 21, 2022 in San Francisco is postponed. The Clerk will reach out to the parties to reschedule. [12564274] [21-16506, 21-16695] (SVG) [Entered: 10/15/2022 11:01 AM]

10/15/2022   198   Case came on for submission before SIDNEY R. THOMAS, MILAN D. SMITH, JR. and MICHAEL J. MCSHANE SUBMISSION DEFERRED. [12564275] [21-16506, 21-16695] (SVG) [Entered: 10/15/2022 11:05 AM]

There could also be other reasons, but "the unforeseen availability" of a judge in recent years has had to do with COVID in well over 50% of all cases.

The panel (former Chief Judge Sidney R. Thomas, Circuit Judge Milan Smith, Jr., and--sitting by designation--District Judge Michael D. McShane) was going to hear five cases. Two of the three criminal cases (one of them a habeas corpus petition, which is by definition somewhat urgent) have been taken under submission. The calendar of the United States Court of Appeals for the Ninth Circuit still states that each side will get 10 minutes in the third criminal case; maybe another judge will fill in or they have some other solution.

Presumably the three judges to whom the case was assigned--and their clerks--have already spent a fair amount of time analyzing the case, and hopefully they will remain in charge.

For a civil law case, Epic Games v. Apple is a rather urgent one, also because it involves an injunction (the enforcement of which was stayed for the duration of the appeal). That's why I have hope that the appellate hearing is still going to take place this year. But the parties' appellate attorneys are among the most sought-after ones in the United States (with Epic's lead counsel on appeal having achieved the two most spectacular appellate successes in technology industry cases in recent years), which won't make it any easier to find a near-term date that works for everyone. And I suspect that Apple would rather delay things.

On Friday--the day before the postponement was notified--MacRumors' Joe Rossignol tweeted about Apple holding a pre-hearing brief with reporters that same day, telling them "that Epic Games faces an uphill battle" and reminding everyone of the district court deciding against Epic on 9 out of 10 counts:

That's just litigation PR. Don't believe it.

To begin with, the number of claims is irrelevant. Epic could theoretically prevail on just one and still be the winner. This is not a ball game where you count goals; it's not like Epic now needs to score X number of goals to equalize. The underlying reasons for which the district judge ruled against the nine claims were closely intertwined. For example, some state law claims necessarily failed because the related claims under federal law had been ruled against.

While Apple calls it an uphill battle for Epic, Judge Yvonne Gonzalez Rogers herself said at the outset of the case that the parties should please agree to a jury trial because in her observation the appeals court affords a lot more deference to jury verdicts than to judicial decisions.

No matter what Apple told the press on Saturday, I am sure they are very, very afraid in Cupertino:

"Advantage Epic" across the board.

The postponement is unfortunate. The app developer community, of which I'm a part, urgently needs change, and this case is so very important. I'm also a bit worried that Congress may not adopt the Open App Markets Act as we're approaching the end of the legislative term, and there is a risk of some Senators and United States Representatives preferring not to hold the decisive vote shortly before the Epic v. Apple appellate hearing. But this is a pressing problem, and I hope they'll do the right thing and #OpentheAppStores. Both Congress and the United States Court of Appeals for the Ninth Circuit.