After spending days presenting tons of dueling economic analysis and documentary evidence, the two sides landed on Monday where they started: arguing over how Judge Yvonne Gonzalez Rogers should play Apple’s role. in a sprawling digital economy. The result of this analysis could reshape how digital app stores operate or maintain Apple’s privileged position in its app ecosystem.
In a few weeks, Gonzalez Rogers is set to decide whether Apple is an agile innovator that has only reaped the rewards for building a popular apps business or whether it is, as Epic claims, a monopolist who uses his control over the iOS App Store to illegally harm competition, restrict innovation and keep prices high.
On Monday, Epic pleaded with Gonzalez Rogers for an order banning Apple from implementing some of its policies and requiring Apple to allow third-party app stores to compete with its own proprietary app store. Epic also accused Apple of trying to convince the judge that it is a “benevolent overlord” of the iOS ecosystem who should be allowed to continue operating without competition “because it has worked well so far”.
“This is not a defense under antitrust laws,” Epic’s attorney said. (When Gonzalez Rogers pointed out that Apple couldn’t be “benevolent” while being anti-competitive, Epic’s lawyer disagreed and said that Apple “was just pretending to be a benevolent overlord. “and had to be truly tested against its competitors.)
In contrast, Apple urged Gonzalez Rogers to view the company’s App Store as part of a vibrant and competitive market for video game sales. A motorcade of prominent executives, culminating with Cook on Friday, argued that Apple’s platform rules protect users and provide security and privacy. And on Monday, his lawyers said that give Epic what he wants would be unwarranted and unprecedented.
Gonzalez Rogers has asked critical questions of both sides. She challenged Apple on its commission structure, stressing that “if there was real competition, that number would move and it isn’t.” Apple later argued that it had cut commissions on several occasions, such as creating a small business cut.
At times, the judge has hinted that she was open to finding that Apple had broken the law, hypothetically considering potential restrictions it could place on Apple under California law, or considering an analysis that could lead to the conclusion of anti-competitive behavior by Apple without commenting. that it has a monopoly.
She also pushed hard against Epic on Monday, suggesting that what the company was asking her to do was “change the business model” of Apple. She challenged Epic’s lawyer Gary Bornstein to cite an example of a case that ended with this type of outcome involving private litigants. Lawyers briefly debated Microsoft’s landmark antitrust case in the 1990s, the recent U.S. government case against Qualcomm, and a pending Supreme Court case before dismissing them as proper comparisons.
“You haven’t told me of a single antitrust case where the kind of relief you’re asking for has been granted by a court when a private plaintiff comes in,” she said. “It’s a pretty big step that the courts haven’t taken.” (Bornstein admitted that he didn’t have a perfect analogy on hand and that the judge is faced with “quite a unique situation.”)
By expressing reservations about the precedents, Gonzalez Rogers opened the door to Apple’s arguments that giving in to Epic’s demands would represent a serious break with history.
“If this is scary for Apple’s iOS customers … and for this court, it’s just a consequence of what Epic is asking for,” Apple attorney Richard Doren said. In contrast, Epic claimed that Apple was trying to “scare the court.”
But at other times, Gonzalez Rogers seemed to enjoy his role on the cutting edge of the law.
“They don’t call us the Wild West for nothing,” she joked.