Remember that time Epic effectively dropped a bombshell in the middle of COVID and got Fortnite yeeted entirely off the Apple ecosystem? That lawsuit picked back up again today, with both parties battling it out to decide whether Epic’s Australian case should continue.
It all played out in the extremely cold and gray environment of Sydney’s Federal Court, where Apple and Epic went toe to toe in their first proper Australian hearing. There has been some local legal stoushes between the two earlier, but it’s mostly been restricted to case management hearings and spats over producing documents, like Epic demanding Apple reveal how many Australian users it has and how much money its made from Aussies in microtransactions.
Yesterday, however, set the stage for whether Epic and Apple’s Australian stoush would continue at all. Apple applied last year for a permanent stay on Epic’s Australian suit, arguing in the Federal Court that Epic had agreed as recently as June last year to terms that included an exclusive jurisdiction clause. That developer agreement limits any legal cases against Apple to the Northern District of California’s U.S. District Court, the California Superior Court for Santa Clara County and the Santa Clara County Municipal Court.
The cornerstone of Apple’s argument against the Australian case hinged on a few key points: That Epic was a “goliath” in their own right and fully capable of litigating in California; that both Apple and Epic agreed to have the case tried in California under the terms of their contractual agreements; the Australian case would have “very substantial overlap” with proceedings in the United States, and multiple cases in multiple countries could result in contradictory findings that would become oppressive on Apple’s part; and, most crucially, that the Australian Consumer Law does not explicitly cover exclusive jurisdictions.
It was also revealed during the hearing that Epic sent an email to Apple on June 30, 2020, asking for Apple’s permission to establish their own app store on iOS or their own in-app payments system within Fortnite. “Please confirm in two weeks if Apple agrees to allow Epic to provide a competing app store or a competing payment system,” Epic CEO Tim Sweeney said, according to an email which was partially read out in court.
That same email also included a reference to Android customers, which Justice Perram — who is also overseeing Epic’s lawsuit against Google in Australia — suggested was a “form letter gone astray”.
Interestingly, Apple’s legal representatives claimed Epic “unilaterally withdrew” Fortnite from MacOS users after it was pulled from iPhones and iPads, even though MacOS market is not governed by the same restrictions.
The interlocutory hearing also saw both parties spar over whether details of Apple’s business in Australia, including the size of Apple’s user and developer base locally, would be entered into evidence. Justice Perram, who is also overseeing Epic’s lawsuit against Google in Australia, opted to submit the evidence, albeit subject to an interim confidentiality order.
The case continues.
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