The U.S. Department of Justice has asked the Supreme Court to reverse part of the contempt ruling against Apple in its long-running fight with Epic Games. The DOJ argues Apple should not have been held in contempt for charging a 27 percent commission on purchases made outside the App Store.
As reported by 9to5Mac, the Solicitor General’s office filed the brief this week as a friend-of-the-court filing, meaning the government isn’t a party to the case but wants to shape how the justices rule. Several legal and business groups filed briefs of their own alongside it, all backing Apple’s position.
The Justice Department Splits Its Backing Between Two Parts of the Ruling
The case traces back to a court order requiring Apple to let developers link out to external purchase options without restriction. When Apple complied, it still charged a 27 percent commission on those transactions, and a district court found the company in civil contempt over it. Apple has charged no commission on linked-out purchases since that ruling, arguing the original injunction never explicitly barred a fee and that courts enforced the “spirit” of the order rather than its actual text. The Supreme Court agreed in June to hear that argument, and Apple filed its opening brief on the merits last week.
The DOJ’s brief backs Apple on the commission question specifically. It argues civil contempt only applies when conduct is clearly covered by an injunction’s own terms, and says that standard wasn’t met here, so the Supreme Court should reverse the contempt finding tied to the 27 percent fee.
On a separate piece of the ruling, the DOJ sides against Apple. It says Apple’s “plain button” restriction violated the injunction, since the order required Apple to permit both buttons and links, while Apple’s implementation effectively allowed only links. For the remaining disputed issues, the DOJ wants the court to send them back to lower courts under a “fair ground of doubt” standard.
Apple’s position also picked up support from a group of legal and business associations this week, including:
- The Chamber of Commerce of the United States
- Chamber of Progress
- A group of former federal antitrust enforcers
- The International Center for Law and Economics
- A joint filing from the Computer & Communications Industry Association, NetChoice, and the Software & Information Industry Association
- The Washington Legal Foundation
Two of those filings go further than simply agreeing with Apple. The International Center for Law and Economics argues that choosing a profitable way to comply with a court order is still compliance, not defiance of it. A separate brief from the former antitrust enforcers warns that letting judges dictate what commission Apple can charge amounts to courts setting prices directly, a role antitrust law normally leaves to markets rather than judges.
Epic Games has until November 13 to file its response, while a separate district court proceeding continues to determine what commission, if any, Apple may eventually charge on linked-out purchases.
Our Take
The DOJ backing Apple’s commission argument while still siding against it on the button restriction is a useful reminder that this case isn’t a clean win for either side. Apple gets support on the bigger dollar figure, the commission, while losing ground on the part of the ruling that actually changed what the App Store checkout looks like.
Oral arguments will follow once Epic’s response is in.
