*3 [T]he evidence presented showed anticompetitive effects and excessive operating margins under any normative measure. The lack of competition has resulted in decrease[d] information which also results in decreased innovation relative to the profits being made. The costs to developer are higher because competition is not driving the commission rate. As described, the commission rate driving the excessive margins has not been justified....

Apple's own records reveal that two of the top three “most effective marketing activities to keep existing users coming back” in the United States, and therefore increasing revenues, are “push notifications” (no. 2) and “email outreach” (no. 3). Apple not only controls those avenues but acts anticompetitively by blocking developers from using them to Apple's own unrestrained gain. As explained before, Apple uses anti-steering provisions prohibiting apps from including “buttons, external links, or other calls to action that direct customers to purchasing mechanisms other than in-app purchase,” and from “encourag[ing] users to use a purchasing method other than in-app purchase” either “within the app or through communications sent to points of contact obtained from account registrations within the app (like email or text).” Thus, developers cannot communicate lower prices on other platforms either within iOS or to users obtained from the iOS platform. Apple's general policy also prevents developers from informing users of its 30% commission.

...

In the context of technology markets, the open flow of information becomes even more critical. As explained above, information costs may create “lock-in” for platforms as users lack information about the lifetime costs of an ecosystem. Users may also lack the ability to attribute costs to the platform versus the developer, which further prevents them from making informed choices. In these circumstances, the ability of developers to provide cross-platform information is crucial. While Epic Games did not meet its burden to show actual lock-in on this record, the Supreme Court has recognized that such information costs may create the potential for anticompetitive exploitation of consumers. Eastman Kodak, 504 U.S. at 473–75, 112 S. Ct. 2072.

Apple attacks the supracompetitive-pricing finding on factual grounds by asserting that Apple charges a substantially similar commission as its competitors. That assertion is true as far as headline rates go, but the district court reasonably based its supracompetitive-price finding on effective commission rates instead of headline rates. The district court found Apple's reliance on headline rates to be “suspect” because, unlike the App Store, other platforms “frequently negotiate[ ] down” the rates they charge developers. The court noted that Amazon has a headline rate of 30% but an effective commission rate of 18%. And it credited testimony that game-console transaction platforms often “negotiate special deals for large developers.” While the district court's finding that the Google Play Store (the App Store's “main competitor”) charges a 30% rate seemingly undermines the characterization of Apple's commission as supracompetitive, we cannot say that the district court clearly erred absent evidence about the Google Play Store's effective commission—the metric that the district court at trial found to be the key to determining the competitiveness of a price in this market.

1. New policy charging developers 27% on link-out purchases instead of IAP's 30%. See infra Section II.A.

2. Various restrictions on the manner and mode of communicating with customers which were distinctly less user-friendly than those otherwise allowed. See infra Sections II.B–D.

3. Exclusions on the concurrent participation in other programs that offered discounted commissions, like the Video Partner Program and the News Partner Program. See infra Section II.E.

*????????One: “Do nothing but allow the separate payment methods in”;

*????????Two: “Charge an alternative commission but audit”; and

*????????Three: “Charge on a different metric (downloads/redownloads) but cuts into different set of developers than we do today”. (CX-202.1; Feb. 2025 Tr. 1399:2–18 (Oliver).)[13]

[T]he team has discussed variations on the commission options with lower rates, but we struggled to land on ironclad pricing rationales that would (1) stand up to scrutinizing comparisons with defenses of the commission and existing discounting approaches in other jurisdictions and (2) that we could substantiate solidly on a bottoms up basis without implicitly devaluing our IP / proprietary technology.

...

All things being equal, ... a lower commission rate option doesn't represent a material improvement in the logical grounding relative to the 27%, continues to place the lion's share of the financial risk and calculus on Apple, and just makes us less money.

Q. And I take it that Apple decided to impose a 27 percent fee on linked purchases prior to January 16, 2024, correct?

A. The decision was made that day.

Q. It's your testimony that up until January 16, 2024, Apple had no idea what -- what fee it's going to impose on linked purchases?

A. That is correct.

(May 2024 Tr. 202:12–18 (Roman).) Another lie under oath: contemporaneous business documents reveal that on the contrary, the main components of Apple's plan, including the 27% commission, were determined in July 2023.

Neither Apple, nor its counsel, corrected the, now obvious, lies. They did not seek to withdraw the testimony or to have it stricken (although Apple did request that the Court strike other testimony). Thus, Apple will be held to have adopted the lies and misrepresentations to this Court.[34]

B. Second Component: Link Placement and Design

Apple's restrictions on link placement and design come in two flavors: (i) where Apple limits placement of links for a linked-out purchase in the purchasing flow, and (ii) whether Apple permits a “button”-style link.

Initial Discussions. As outlined earlier, in May 2023, Apple initially considered two program proposals. Proposal 1 would include no commission but would restrict the placement and appearance of links in purchasing flows. (See CX-272.7.) As far as link placement, this generally means that if an app displays something for purchase, an IAP buy button could be placed next to that item, but the link-out option would have to be placed on another page in the app. (Feb. 2025 Tr. 1451:18–22 (Oliver).) Proposal 2, by contrast, permitted display placement “[a]nywhere, including merchandising page,” with “[n]o restrictions” on pricing language but would include a 27% commission. (See CX-272.11.)

On its face, the Court finds the juxtaposition of the two proposals indicates that Apple considered imposition of a commission a trade off with the placement and appearance of a link. During testimony, Apple pushed back on the “trade off” characterization. Mr. Schiller explained that he didn't “recall us linking these two styles specifically to the discussion of fee or no fee. I recall us discussing them independently as what was the right thing to do and what's allowed to do.” (Feb. 2025 Tr. 1182:12–15 (Schiller).) Mr. Oliver similarly demurred that he “recall[ed] specifically discussions about the commission level and discussions about the features around implementation of linking out.... I don't remember them being discussed linked.” (Feb. 2025 Tr. 1888:13–16 (Oliver).)

*18 Yet, the side-by-side proposals evidence that the link placement and restriction served as an explicit offset to a lack of commission. Further, the June 1, 2023 presentation confirms that connection: in discussing one proposal, Apple indicates that, “[s]ince we are charging a commission, the link could be placed once per page, including alongside IAP.” (CX-859.52 (emphasis supplied).) Notes of the meeting further confirm as much: “If you want to charge a commission, you have to give them better placement,” but “[i]f you don't charge a commission, you need to lock it down to a plain url link and internet style ‘button’.” (CX-1104.2.) The notes also indicate the business team was tasked “to define the 2-3 scenarios where we can limit the ruling where Tim, Phil, and Legal are comfortable with.” (Id. at .1.)

While Mr. Oliver claims he did not “exactly understand” what the notes “mean[ ] by ‘limit the ruling’ ” (Feb. 2025 Tr. 1493:11–21 (Oliver)), the Court finds that the obvious inference to draw from these statements collectively is that, absent a commission, placement restrictions would “lock [the app] down” to protect Apple from an anticipated loss of revenue which would naturally spring from the competition the Injunction sought to stimulate. Mr. Schiller's lapse of memory on the topic does not control.

Revenue Impact. The June 20, 2023 presentation evidenced, and thereby confirmed, the same trade-off discussed above. Option 1 had no fee but included “more stringent restrictions on style and placement,” specifically, the link would be “[o]nce per page,” “[n]ot on same page as Apple IAP buy flow,” and a “[p]lain link or button.” (Feb. 2025 Tr. 1179:16–19 (Schiller); CX-223.6.) Option 2, by contrast, imposed a “[c]omission or flat fee” but permitted a “[d]eveloper-styled link or button” and allowed the link to be on the same page as the Apple IAP buy flow. (CX-223.6; Feb. 2025 Tr. 1183:10–13 (Schiller).)

As to Option 1, the presentation explains that the “share of billings linking-out ... will depend where is the text and language developers are allowed to use.” (CX-224.16.) As Mr. Schiller acknowledged, the more restrictive Apple became on its suggested placement, format, and language of a link that a developer uses for a linked-out transaction, the less likely those links would be seen and used. (Feb. 2025 Tr. 1213:10–15 (Schiller).) More to the point, the more restrictive Apple's rules about how developers can format links, the lower a developer's link-out share and adverse impact on Apple's revenue. (See Feb. 2025 Tr. 1212:9–1213:22 (Schiller).)[35]

Here again, Apple ultimately chose the most aggressive, anticompetitive option, namely to take the more restrictive elements of both options: Apple charged a commission as in Option 2, and it imposed the more restrictive link placement and design requirements of Option 1 (Primary and Overarching Finding No. 2).

Friction in transactions matter. Apple modelled the revenue impact of a no-fee link-out purchase scenario based on breakage (i.e., percentage of purchases where a user fails to complete a link-out transaction) and the developer's link-out share (i.e., percentage of purchases diverted from IAP to a developer's external payment system).[36] (See CX-224.16.) Specifically, Apple's sensitivity analysis projected revenue impact where breakage ranged from 0%–25% and where link-out share ranged from 10%–50%. (Id.) The speaker notes indicate that, “[b]eyond [redacted]%” breakage, “developers reach a tipping point where they lose more on linking out than they would sticking with Apple IAP and the higher commission” (Id.)

*19 The sensitivity analysis projected that “[t]he range of impact on the low end with 25% breakage and 10% billings shift ... is more negligible at $[redacted] . However on the other end with 0% breakage and 50% billings shift ..., it's closer to $[redacted] of U.S. revenue that Apple would lose. A more middle ground scenario of 10% breakage and 30% billings shift would result in $[redacted] of revenue loss, nearly [redacted] of our U.S. App Store revenue.” (CX-224.16.) As to what Apple expected an actual link-out share would be, the speaker notes explained that “we don't have great data points on what this will end up being,” but pointed to instances where developers accomplished a [redacted] % (NetEase) and [redacted] % (Disney) shift in billings by offering discounted pricing outside the app store. (Id.) Notably, when Epic itself offered their own payment option with discounted pricing for a few weeks, Apple saw about [redacted] % of billings shift. (Id.)

As early as the July 5, 2024 price committee meeting, the evidence is compelling that Apple had decided upon combining the most restrictive aspects of the June 20, 2023 proposal: impose both a commission and restrictions on link placement and design. (Feb. 2025 Tr. 1245:23–1246:24 (Schiller).) The link entitlement required developers to adhere to the following restrictions: “[l]anguage and design must follow templates”; “[o]ne URL per app”; “[l]ink can only be displayed once in an app, on an app page user navigates to (not an interstitial, modal, or pop up), and can't persist when user leaves page”; “[l]ink can not be displayed on any page that is part of an in-app flow to merchandise/initiate an IAP.” (CX-227.4; see also Tr. 1497:7–19 (acknowledging Apple decided to “lock[ ] it down to a plain URL link and Internet-style button” and “restrict[ ] placement to make it outside of the buy flow”) (Oliver).) Messrs. Cook, Schiller, and Maestri were the ultimate decisionmakers “about what they felt was [an] acceptable” level of risk to cabin the Injunction's effect in terms of link placement and design. (Feb. 2025 Tr. 1493:22–1494:3 (Oliver); see also Tr. 676:23–677:6 (Schiller).)[37]

Link Placement Restrictions. Consistent with the July 5, 2023 price committee meeting presentation, Apple's final Link Entitlement program requires that an external link “[n]ot be displayed on any page that is part of an in-app flow to merchandise or initiate a purchase using in-app purchase.” (CX-2.4; May 2024 Tr. 221:23–25 (“Q. The developer may not put the purchase link in their app anywhere near the purchase flow? A. That is correct.”) (Roman); id. at 727:11–15 (“Q... [T]he link must not be displayed on any page that is part of an in-app flow to merchandise or initiate a purchase using in-app purchase, correct? A. Yes.”) (Schiller).)

That restriction presents serious problems for developers' ability to compete with Apple's IAP and Apple knew it. Consider a concrete example: if an app has an item shop where a user could purchase a digital product—e.g., an in-game outfit or currency—nowhere in that shop could the external purchase link appear. (May 2024 Tr. 93:21–94:7 (Fischer).) Rather, the external purchase link would have to be on some other page within the app. (Id. 94:8–13 (Fischer).) Epic's witness, app developer Ben Simon, represented that the inability to “present both options to the user on the same screen, as we did on Android ... very much inhibits our ability to give users a choice in how to subscribe,” and “is also likely to lead to user confusion, as it suggests that the two options are unrelated offerings.” (Dkt. No. 897-1, Simon Decl. ¶ 28.)

*20 When asked to explain the business justification of this requirement, Mr. Fischer first sidestepped by explaining that “the developer could easily, before they ever get to that page”—e.g., the in-app item shop—“communicate to the user of benefits and pricing discounts.” (May 2024 Tr. 94:21–95:9 (Fischer).) When pressed further, Mr. Fischer alluded to “some concern around user confusion with having lots of different purchase options all in one place,” but otherwise admitted that the requirement would be more profitable for Apple and less profitable for developers. (Id. 95:10–97:1 (Fischer).)

Additionally, based on his experience, Mr. Simon explained that “over two thirds of users who subscribe in-app do so when the purchase page is presented as a ‘pop-up’ after they create their account or after their trial has ended.” (Simon Decl. ¶ 29.) As Mr. Schiller acknowledged, the most useful time for a user to know their purchase options is when the user is in the in-app store reviewing prices. (May 2024 Tr. 732:23–733:4 (Schiller); see also Injunction at 164.) However, that is precisely when Apple instructs developers that they cannot share alternative purchase information with users. (May 2024 Tr. 733:5–7 (Schiller).)

In its notice of compliance and at the May 2024 hearing, Apple claimed that restrictions on link placement protect against “security risks.” (See Dkt. No. 871, Notice of Compliance at 6, 9–11; May 2024 Tr. 734:22–743:21 (Schiller).) Again, Apple attempted to mislead. Mr. Schiller asserted that having an external link appear on the same page as IAP can increase the risk of a user's exposure to fraudulent conduct. (May 2024 Tr. 735:20–24 (Schiller).) No real-time business documents credit that view. Mr. Schiller acknowledged that Apple does not permit developers to include an external link in an app under the Link Entitlement unless Apple first reviews and signs off on the link. (Id. 736:7–10 (Schiller).) Apple can sign off on an external link regardless of whether it was placed in the IAP purchase flow or elsewhere in the app. (Id. 736:11–14 (Schiller).) The link itself would be the same, and the only difference would be a user's perception and potential confusion. (Id. 736:15–17 (Schiller).) The confusion, Mr. Schiller explained, is that a user “may not understand which purchase method is not in-app purchase and which isn't.” (Id. 737:3–7 (Schiller).) Yet, as Apple has structured the program, a user would nonetheless understand the external link directs them outside the app by virtue of Apple's scare screen informing them of such and the link's appearance as a hyperlink to an outside web page. (See id. 737:8–738:8 (Schiller).) Confusion is not a security risk. Given the lack of any document identifying this alleged concern, the Court finds these justifications pretextual; said differently, the proffered rationales are nothing more than after-the-fact litigation posturing or outright misrepresentations to the Court.

Link Design Restrictions. As to external link design, Apple's internal materials reflect awareness that the Injunction requires that “[d]evelopers must be able to ... format these prompts as buttons or other calls to action, not just blue HTML links.” (CX-272.5 (May 2023 presentation); see also id. at .4 (“Working assumptions of compliance plan” include “[f]lexibility of CTA [call-to-action] design, e.g. buttons.”).) Yet, the Link Entitlement prohibits what consumers would expect to see as a button. (May 2024 Tr. 82:18–23 (Fischer).) The only button Apple permits under its guidelines is what it refers to as the “Plain Button style,” which “may not be enclosed in a shape that uses a contrasting background fill,” but rather the “background surrounding text must match the background of [the] app's page.” (CX-3.5.) A “link out icon provided by Apple must be displayed directly to the right of [the] website URL” and “must visually match the size of the text.” (Id.)

*21 The June 20, 2023 presentation highlights Apple's self-created distinction between a “link” or “button.” Option 1, which did not include a commission or fee, presented the following options for a “plain link or button” style:

(CX-224.10.) Nothing about either example appears to be a “button,” by the ordinary usage and understanding of the word. There is, certainly, an external-link icon next to the call to action and hyperlink, but Apple strains to call either of these strings of text a “button.”

By contrast, Option 2, which would include a commission, presented the following “[d]eveloper styled link or button”:

(Id. at .19.) The lower example is readily identifiable as a button.

Apple's witnesses acknowledged that the plain-link-style “button” is the least visually prominent of the button styles that Apple's guidelines provide:

(CX-16.3; May 2024 Tr. 76:15–77:5 (Fischer), 897:18–898:1 (Schiller); Feb. 2025 Tr. 1308:15–23 (Schiller).)

Understanding that developers use visually prominent buttons to attract users to click on a link (as recommended by Apple in other contexts), Apple's own witness Mr. Fischer testified that he could think of no other reason to require developers to use a plain-link-style “button” other than to stifle competition.[38]

Mr. Schiller, who sat through both sets of evidentiary hearings, attempted to reverse course on this admission, claiming that Apple required the plain-link-style button so that the external link would look like hyperlinks or other internet links that consumers are used to seeing, along with a link-out icon, which Apple also refers to as a “button”. (Feb. 2025 Tr. 1166:15-1167:14 (Schiller).)[39] Yet, Apple prohibits developers from using what their consumers would expect to see as an actual “button.” (May 2024 Tr. 82:18–23 (Fischer); see also Feb. 2025 Tr. 1531:4–1533:24 (Oliver).) At the end of the day, Apple's internal documents reflect the underlying motivation to stifle competition by cabining developers' ability to attract users to alternate payment methods: “How much can we limit what devs do with the text and links?” (CX-1104.2 (notes of June 1, 2023 meeting).)

C. Third Component: Purchase-Flow Friction

As discussed above, the June 20, 2023 presentation informed Apple executives that “[w]e know it's very likely that when a link-out happens, there will be some breakage, meaning [the] customer drop[s] off during the buy-flow process due to a less seamless experience compared to Apple's iAP [sic].” (CX-224.15; see also Feb. 2025 Tr. 1631:20–22 (Vij).) Apple understood, and used to its advantage, that the more friction in a purchase flow, the more breakage a developer faces. (May 2024 Tr. 70:23–71:16 (Fischer); Feb. 2025 Tr. 1644:17–20 (Vij).) Apple found that, “[b]eyond [redacted]” breakage, developers reach a tipping point where they lose more on linking out than they would sticking with Apple IAP and the higher commission.” (CX-224.16.) In other words, to stifle competition, Apple was modeling the tipping point where external links would cease to be advantageous for developers due to friction in the purchase flow. (Feb. 2025 Tr. 1211:14–19 (Schiller).)

*22 Two aspects of Apple's Link Entitlement in particular increase purchase-flow friction for users attempting to conduct an external purchase outside of Apple's IAP: deploying a scare screen and requiring static URLs.

1. The Scare Screen

Apple deployed a warning message, referred to as a “scare screen,” to deter users from using third-party payment options. Apple does not require developers selling physical goods to display any warning at all before users proceed to make a payment with a third-party payment solution. (May 2024 Tr. 70:9–13 (Fischer).) By contrast, Apple now requires developers selling digital goods to display an “[i]n-app system disclosure sheet”[40] when a user links-out to a third-party payment solution:

CX-3.5; May 2024 Tr. 70:14–18 (Fischer).)

Two months after the Injunction issued, Apple began evaluating options for its warning screen. In an appendix to a draft November 15, 2021 Apple presentation, Apple details three different “[w]arning Options,” involving escalating levels of warning messages, presumably as exemplars to show customers as part of the link-out flow under consideration. (CX-520.39; Feb. 2025 Tr. 1333:18–23 (Onak).)

(CX-520.39.) The screen on the left is called a “link,” where the user would simply be taken directly to the external site. (Feb. 2025 Tr. 1333:25–1334:17 (Onak).) The middle screen is called a “dialogue,” which generates a small pop-up after a user clicks on an external link that communicates to the user they are leaving the app. (Id.; also id. 1335:10–16 (Onak).) The screen on the right is called a “sheet,” which is a full screen takeover after the user clicks on an external link. (Id. 1333:25–1334:17 (Onak).) Moving left to right, the warning level to the user increases. (Id. 1335:3–6 (Onak).)

Again, Apple chose the most anticompetitive option, namely the full screen takeover. (Id. 1335:7–9 (Onak).); (Primary and Overarching Finding No. 3)

In Slack communications dated November 16, 2021, the Apple employees crafting the warning screen for Project Michigan discussed how best to frame its language. (CX-206.) Mr. Onak suggested the warning screen should include the language: “By continuing on the web, you will leave the app and be taken to an external website” because “ ‘external website’ sounds scary, so execs will love it.” (Id. at .2.) From Mr. Onak's perspective, of the “execs” on the project, Mr. Schiller was at the top. (Feb. 2025 Tr. 1340:4–6 (Onak).) One employee further wrote, “to make your version even worse you could add the developer name rather than the app name.” (CX-206.4.) To that, another responded “ooh - keep going.” (Id.)

*23 Again, Apple decided on the most anticompetitive option, that is, the “even worse” option of including the developer's name rather than the app name (Primary and Overarching Finding No. 4). (Feb. 2025 Tr. 1343:23–1344:1 (Onak); CX-3.5.) All of this was hidden from the Court and not revealed in the May 2024 evidentiary hearings.

From 2021 to 2023, while this Court's Injunction was stayed, Apple employees also worked on warning screens for similar compliance requirements imposed in other jurisdictions, including the Netherlands and Japan.[41] In a January 2022 email, Mr. Schiller was asked for feedback on “In App Messaging - link out”, and he responded: “This is not good. This is a big warning that the user is about to be sent out of the app to a website. I do not think the headline should say ‘continue’, this is a warning that the user is about to go out to the web, and are they sure they want to do that, we cannot verify that anything that occurs on the web is private and secure. The default button should not be ‘continue’.” (CX-268.11.) In response, an employee confirmed that “[w]e updated the title and the copy to be super clear on what is about to happen and have more of that warning tone.” (Id. at .10.)

On March 15, 2022, Apple held a meeting to discuss the warning screen for the Netherlands and Japan response, which included Messrs. Schiller and Onak. (CX-496.1.) Immediately afterwards, employees developing the warning screen language had a debrief over Slack to discuss how to implement Mr. Schiller's comments. (Feb. 2025 Tr. 1355:13–22 (Onak); CX-281.) They also discussed how to make the language “scarier.” One employee said some of the draft language “feels safe ... like, don't worry, you're still within the app and it's just guiding you somewhere else right now.” (CX-281.2.) Rather, the language should sound like users are sent “into the great wide open.” (Id.) Mr. Onak commented that “if we want to ‘scare’ users a bit, i like the addition of ‘out’ because it raises questions and hesitancy haha. out? out where? omg what do i do?” (CX-281.3.)

Mr. Onak testified that “in term of UX writing, the word ‘scary’ doesn't ... mean the same thing as instilling fear.” (Feb. 2025 Tr. 1340:10–12 (Onak).) Rather, “scary” is a term of art that “means raising awareness and caution and grabbing the user's attention.” (Feb. 2025 Tr. 1340:13–15 (Onak).) Mr. Onak repeatedly asserted that the team's goal was simply “to raise caution so the user would have all the facts so that they can make an informed decision on their own.” (Feb. 2025 Tr. 1340:22–1341:2 (Onak).) Mr. Onak's testimony was not credible and falls flat given reason, common sense, and the totality of the admitted exhibits. The designers' discussions contextualize their use of the word “scary” to indicate its ordinary meaning and, most applicable here, indicate the goal of deterring users as much as possible from completing a linked-out transaction. Apple repeatedly acted to maintain its revenues and stifle competition. This was no exception. His attempts to reframe the obvious meaning of these communications do not persuade. All of this was hidden from the Court and not revealed in the May 2024 evidentiary hearing.

*24 After the June 20, 2023 meeting regarding this Court's Injunction, Apple decided that it would implement a full screen warning after users click on an external link, regardless of which commission option was ultimately selected. (Tr. 1180:12–19 (Schiller); CX-223.7.) At the meeting, Mr. Cook “asked the team to revise the customer warning screen ... to reference the fact that Apple's privacy and security standards do not apply to purchases made on the web.” (CX-225.1.) The team updated the warning screen, sent it to Mr. Schiller for approval, and returned the revised copy to Mr. Cook on June 23, 2023. (Id.) The updated warning screen changed a sentence from “You will no longer be transacting with Apple” to “Apple is not responsible for the privacy or security of purchases made on the web.” (Feb. 2025 Tr. 1266:12–18 (Schiller); CX-225.2.) As Ms. Goldberg's notes reflect, the idea discussed was that this “[i]nterstitial ... tells ppl its dangerous and they are leaving the app store.” (CX-399.1; Feb. 2025 Tr. 1810:5–24 (Goldberg).)

The presentation for the June 28, 2023 meeting reflects Mr. Cook's revision (see CX-291.5 (“Tim, based on your feedback, here is the System disclosure sheet with the updated copy on the right.”)), and is included in the final version of the warning screen that Apple adopted (Feb. 2025 Tr. 1267:19–23 (Schiller)).[42] This “system disclosure sheet” pops up for every single user that clicks on an external link, and for every single instance that a user clicks on any external link, not just the first time. (CX-3.5; May 2024 Tr. 725:8–14 (Schiller).) Further, these chilled consumer conduct, especially given the use of other informative “warning screens,” like those asking to track a user's activity across companies' apps and websites. That information is not a “trivial” ask, but by Mr. Fischer's admission, those “warnings” cover only a third or less than half of the screen, this one covers the entire screen. (CX-3.5; May 2024 Tr. 44:11–45:12 (Fischer).)

2. Static URLs

A static URL is a web address that “simply is a specific place that the user is going to be sent to.” (May 2024 Tr. 811:12–18 (Schiller).) By contrast, a dynamic URL “can change”—it “can send a user to different places.” (Id. 811:21–24 (Schiller).) “[E]ven if it doesn't ... a dynamic URL can attach parameters, data, to the URL,” which can include information “like user identity, geolocation,” or “[s]ession information about what the user's been doing, to pass along to that website.” (Id. 811:24–812:17 (Schiller).) For the Link Entitlement program, Apple requires developers to use static URLs for external links. (Id. 813:3–5 (Schiller).)

As explained by Epic's witness, Mr. Simon, static URLs can introduce friction in a purchase flow where dynamic URLs do not. Increased friction decreases competition. For instance, a dynamic link can identify the user and automatically log that user into their account after clicking the link. (May 2024 Tr. 953:8–23 (Simon).) For a static URL, however, a user would have to log in before making a purchase. (Id. at 954:20–25.)[43] As Mr. Simon attested, some users on the fence about a purchase may decide to stop pursuing the transaction at that point. (Id. at 954:25–955:2.)[44] He also indicated the static URL can create user confusion—some users may feel frustrated “because they feel misled about having purchased ... in the app without knowing about the other [cheaper] options.” (Id. at 959:6–8.) Or a user may accidentally log in to or create a different account, purchasing the product for the wrong account. (Id. at 955:3–8.)[45]

*25 As with the other restrictions discussed above, Apple claimed the static URL requirement protects users' security and privacy. Mr. Schiller explained that a static URL “keeps the URL from being used to pass along information about the user without their knowledge from the app out to the website. It has nothing to do with sending them to a page to find pricing. It's about passing along parameters like their demographics.” (May 2024 Tr. 813:6–14 (Schiller).) Yet, despite these concerns, developers can program dynamic links for any other purpose—Apple in general only prohibits the use of dynamic links for external links for link-out purchases. (See May 2024 Tr. 90:8–17 (Fischer), 881:3–6 (Schiller), 952:16–19 (Simon).) In fact, “any app that's connected to the internet doing anything nontrivial is going to have to use dynamic URLs.” (May 2024 Tr. 957:3–20 (Simon) (explaining developers' various uses of dynamic URLs in-app).) Thus, according to Mr. Simon, “[i]f dynamic URLs are a security risk,” then “all of iOS is a security risk because the platform gives you every ability to make Internet requests with dynamic URLs.” (Id. 957:21–958:2 (Simon).)[46]

Apple understood well that breakage increases with additional friction in the purchase flow (see Feb. 2025 Tr. 1643:4–8 (Vij); CX-224.16) and capitalized on that option. Documents reveal that Bumble informed Apple in a May 2023 presentation that one additional step in Google's three-screen User Choice Billing system resulted in an approximately [redacted]% drop-off rate for customers in a link-out transaction. (CX-246.12.)

Again, here, the Court finds that Apple chose the most anticompetitive option to reduce the efficacy of external link-outs that compete with IAP (Primary and Overarching Finding No. 5).

D. Fourth Component: Limitations on Calls to Action

Under the final component of the Link Entitlement program, Apple prohibits developers from using calls to action other than the text of external links. (See CX-3.5.) Even when using an external link, a developer “must match the template language” that Apple provides—e.g., the “purchase template” requires a develop to say “Purchase from the website at www.example.com”. (Id.) That statement—one of five templates which constitutes the external link for a link-out—is the entirety of the call to action that developers may use. (May 2024 Tr. 85:21–25 (Fischer).)

(CX-3.5.)

A developer cannot use words beyond those provided in the templates to communicate with users about external purchase availability. (May 2024 Tr. 85:25–86:3 (Fischer).) A developer cannot say something like “buy cool new stuff over here,” or “unlock new and special subscription content only when you [subscribe] on our website.” (Id. 86:4–10 (Fischer); see also Tr. 958:8–12 (Simon).) If a developer wanted to compete on price not by offering lower prices but by offering other products or benefits on the web, there is no way to communicate that to a user in-app. (May 2024 Tr. 86:14–18 (Fischer).) Apple is aware that, absent these restrictions, developers would like to include calls to action directing users to their websites, including through text without a link if the developer can do so without paying a commission to Apple. (Id. 107:21–108:1 (Fischer); Feb. 2025 Tr. 1883:3–7 (Schiller).)

Despite testimony to the contrary,[47] some working on Project Wisconsin did consider permitting unlinked and unrestricted calls to action with no commission as to calls of action. The appendix to the June 1, 2023 presentation given to Mr. Cook includes an Option 3, which would provide for a commission on linking out with “0% Commission on In-App Text Communications.” (CX-859.54.) Option 3 would “introduce[ ] ... the additional information allowed to be presented but without a link to customers as mentioned where we would not charge a commission.” (Id.) In this scenario, Apple assessed “the incremental impact that may happen as more customers might migrate to the web with this additional information being presented to them.” (Id.) Apple estimated that, if in-app text communications caused 5% migration to the web, Apple would lose hundreds of millions ($[redacted]) in revenue. (Id.) On the high end, at 25% migration, Apple would lose over a billion ($[redacted]) in revenue. (Id.) As Mr. Schiller acknowledged, Apple recognized—at least from Mr. Barton and the finance team, who were designated to present Option 3—that unlinked and unrestricted calls to action could foster competition against Apple's IAP by causing customer migration to developer websites. (Feb. 2025 Tr. 1891:18–1892:2 (Schiller); CX-859.54.)

*26 Again, Apple chose the most anticompetitive option (Primary and Overarching Finding No. 6).

E. Program Exclusions

In creating the Link Entitlement program, Apple specifically excluded certain developers, namely those in Apple's Video Partner Program (“VPP”) and its News Partner Program (“NPP”). (May 2024 Tr. 261:23–262:1 (Roman).) Those programs have a standard commission rate of 15%, rather than IAP's 30% commission. (Id. at 262:2–4.) Under the new rule, if a subscription video app like Disney+ or a newspaper publisher like the New York Times uses external purchase links in their app, they will no longer be eligible for the VPP or NPP 15% commission rate and would be subject to the standard 30% IAP commission for all in-app purchases. (Id.) Said differently, and simply, including an external purchase link in their app doubles their commission rate. (Id. at 262:11–13.)

In December 2022, Apple considered how to treat programs including VPP and NPP in the event Apple would need to change its business model to meet the requirements of the Digital Markets Act, a European Union regulation. (Feb. 2025 Tr. 1724:8–18 (Vij); CX-231.) The presentation notes that, among other benefits to Apple, VPP and NPP “can serve as a tool for retaining developers exclusively on Apple IAP.” (CX-231.8.) This is because the effect of losing program benefits—the lower commission rate—makes choosing alternative payments more costly given the commission rate increases to Apple's standard IAP commission. (See Feb. 2025 Tr. 1730:7–21 (Vij).)

Apple repurposed its EU analysis for the June 28, 2023 presentation regarding this Court's injunction. (Compare CX-231.8 with CX-291.13.) This time, no reference is made to how the exclusion can serve as a tool for IAP retention, noting instead that excluding VPP and NPP developers from the Link Entitlement “[r]equire[s] participants to maintain high bar of user experience and ecosystem integration aligned with partner program goals” and there would be a “[l]imited number of developers impacted.” (CX-291.13.) At the same time, Apple believed that very large developers like those participating in VPP and NPP were the most likely to use linked purchases if Apple charged a commission. (Feb. 2025 Tr. 1722:2–14 (Vij).) Apple acknowledged that excluding these developers from the program would deter adoption of link-out purchases in the United States, because link-outs would be much more costly due to the commission rate doubling from 15% to 30%. (Id. 1733:2–15 (Vij).) To underscore this reasoning, the presentation for the June 20, 2023 meeting with Mr. Cook provides data projecting that Apple would lose more revenue if developers participating in VPP or NPP were still eligible for program discounts. (Id. 1218:17–1221:7 (Schiller).)[48]

*27 Apple workshopped how to articulate the rationale for VPP and NPP program exclusion from the Link Entitlement. Notes from a June 26, 2023 Project Wisconsin meeting indicate that Mr. Vij was slated to present on “Program Eligibility” and that the team wanted a “more nuanced way to write our positioning here,” floating the idea that they “want to maintain a high bar of user experience for participants.” (CX-506.3.) Yet, on June 28, 2023, Mr. Vij messaged Mr. Oliver that he thought “our argument on vpp npp is weak” and acknowledged “[o]n VPP and NPP the argument on the high bar can be made with the discount as well.” (CX-511.2, .5.) Mr. Oliver responded that he did not “think it's the same” and that “VPP and NPP are unique programs that have specific requirements to ensure a distinct user experience on Apple's platforms.” (CX-511.6.) Thus, even though the program eligibility slide in the June 28, 2023 presentation was pulled from the EU presentation that indicated VPP and NPP exclusion could serve as an IAP retention tool, the slide used for Project Wisconsin presents Mr. Oliver's rationale instead and scrubs any mention of the retention benefits for excluding VPP and NPP. (CX-505.16.)[49]

Here too, Apple chose the most anticompetitive course.

* * *

Finally, under the Link Entitlement, Apple reserves the right in its sole discretion to revoke a link entitlement at any time. (May 2024 Tr. 31:14–16 (Fischer); CX-2.3 § 2.3.) This rule targets external links mandated by the Injunction—Apple permits developers to include links to external websites for non-transaction purposes without applying for an entitlement or obtaining permission from Apple. (May 2024 Tr. 31:23–32:2 (Fischer).) Apple does not require developers who sell physical goods or services to apply for any type of entitlement before their app links to a third-party payment solution. (Id. at 32:7–11.)

As of the May 2024 hearing, only 34 developers out of the approximately 136,000 total developers on the App Store applied for the program, and seventeen of those developers had not offered in-app purchases in the first place.[50] In May 2024, Apple argued that it would take more time for developers to take advantage of the Link Entitlement and that the adoption rates could not be known. (E.g., May 2024 Tr. 278:3–5 (Roman), 761:12–762:8 (Schiller).) Apple attempted here to mislead.

Given the revelations of the February 2025 hearing, Apple modeled the lack of adoption. That Apple adduced no testimony or evidence indicating developer adoption of the program is no surprise. As shown above, Apple knew it was choosing a course which would fail to stimulate any meaningful competition to Apple's IAP and thereby maintain its revenue stream.

IV. DISCUSSION

Before the Court are several motions, three of which form the primary discussion. First, Apple moves to set aside this Court's judgment and injunction based on two intervening cases handed down after the judgment issued. Second, Epic moves to enforce the injunction and hold Apple in civil contempt for blatantly violating the injunction. Third, Apple moves for indemnification under the DPLA after the Ninth Circuit's reversal of this Court's prior findings. The Court considers each.

A. Apple's Motion to Set Aside Judgment

*28 As a preliminary matter, Apple moves under Rule 60(b) to set aside this Court's judgment based on two decisions issued after the judgment and injunction: Beverage v. Apple, Inc., 320 Cal. Rptr. 3d 427 (Cal. Ct. App. 2024), review denied (July 10, 2024), and Murthy v. Missouri, 603 U.S. 43 (2024).

Reconsideration under Federal Rule of Civil Procedure 60(b) “is an ‘extraordinary remedy that works against the interest of finality and should be applied only in exceptional circumstances.’ ” FTC v. Apex Cap. Grp., 2021 WL 7707269, at *2 (C.D. Cal. Sept. 3, 2021) (citation omitted). “Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court and will not be reversed absent an abuse of discretion.” Casey v. Albertson's Inc, 362 F.3d 1254, 1257 (9th Cir. 2004).

Rule 60(b)(5) permits a court, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment” when “applying it prospectively is no longer equitable.”[51] Relief is warranted “when the party seeking relief from an injunction or consent decree can show ‘a significant change either in factual conditions or in law.’ ” Agostini v. Felton, 521 U.S. 203, 215 (1997) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)). “[W]hen a district court reviews an injunction based solely on law that has since been altered to permit what was previously forbidden, it is an abuse of discretion to refuse to modify the injunction in the light of the changed law.” California by & through Becerra v. U.S. Env't Prot. Agency, 978 F.3d 708, 718–19 (9th Cir. 2020).

According to Apple, Beverage and Murthy present significant changes in the law underlying Apple's judgment that warrant relief therefrom. In Beverage, Apple contends the California Court of Appeal now explicitly permits what this Court held was forbidden. As for Murthy, Apple argues the decision changed the law of standing as to require this Court, at a minimum, to limit the injunction's reach to only Epic and its affiliates.

1. Beverage v. Apple, Inc.

In Beverage, two plaintiffs who made purchases through the App Store in Fortnite for use on iOS devices sued Apple on behalf of themselves and a putative class, alleging that “Apple's restrictions on app distribution increased the prices developers charge iOS device users, and that Apple's anti-steering restrictions ‘artificially increase’ Apple's power within the market for mobile gaming transactions.” Beverage, 320 Cal. Rptr. 3d at 433. Plaintiffs asserted three causes of action for violations of (1) the Cartwright Act, (2) the “unlawful” prong of the UCL, and (3) the “unfair” prong of the UCL. Id. at 433–34.

The trial court granted Apple's demurrer, finding that plaintiffs failed to state a claim under the Cartwright Act and the “unlawful” prong of the UCL as a matter of law because they alleged only unilateral conduct by Apple, which was immunized from antitrust liability under Colgate. Id. At 434. The claim for violations of the “unfair” prong of the UCL was then barred by Chavez. Id.

*29 The Court of Appeal affirmed and elaborated on the legal framework. Under the Cartwright Act, “unlike its federal counterpart, the Sherman Act, ‘single firm monopolization is not cognizable ....’ ” Id. at 436 (citation omitted) (quoting Asahi Kasei Pharma Corp. v. CoTherix, Inc., 138 Cal. Rptr. 3d 620, 626 (Cal. Ct. App. 2012)). Instead, a plaintiff must allege the formation and operation of a conspiracy and illegal acts done in furtherance of the conspiracy. Id. at 437. “Conversely, a claim describing only a unilateral refusal to deal without alleging a corresponding illegal conspiracy or combination does not state an actionable antitrust claim.” Id. The premise underlying this proposition—that “ ‘a private party generally may choose to do or not do business with whomever it pleases’ without violating antitrust laws”—is known as the Colgate doctrine. Id. (quoting Drum v. San Fernando Valley Bar Assn., 106 Cal. Rptr. 3d 46, 51 (Cal. Ct. App. 2010)); see also United States v. Colgate & Co., 250 U.S. 300 (1919). Additionally, under Cel-Tech, “[w]hen specific legislation provides a ‘safe harbor,’ plaintiffs may not use the general unfair competition law to assault that harbor.” Id. at 435 (quoting Cel-Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co., 973 P.2d 527, 541 (Cal. 1999)).

“In Chavez, a case decided after Cel-Tech, the court applied the Colgate doctrine to 47 preclude a UCL cause of action” because “the plaintiff failed to plead facts sufficient to establish a coerced agreement in violation of the Cartwright Act or the ‘unlawful’ prong of the UCL.” Id. at 438 (discussing Chavez v. Whirlpool Corp., 113 Cal.Rptr.2d 175 (Cal. Ct. App. 2001)).[52] By the same token, the Chavez plaintiffs failed to state a claim under the UCL's “unfair” prong, because “the determination that the conduct is not an unreasonable restraint of trade” under the Cartwright Act or the “unlawful” prong of the UCL “necessarily implies that the conduct is not ‘unfair’ toward consumers.” Id. (quoting Chavez, 113 Cal.Rptr.2d at 184). “To permit a separate inquiry into essentially the same question under the unfair competition law would only invite conflict and uncertainty and could lead to the enjoining of procompetitive conduct.” Chavez, 113 Cal.Rptr.2d at 184.

Before the Court of Appeal, the Beverage plaintiffs' “challenge [was] limited only to the dismissal of their cause of action under the ‘unfair’ prong of the UCL,” because plaintiffs had “abandoned any claim of error in the other aspects of the trial court's ruling on Apple's demurrer.” Id. at 439. Thus, the Court of Appeal presumed that plaintiffs' causes of action under the Cartwright Act and the “unlawful” prong of the UCL were legally insufficient under the Colgate doctrine. Id. As a consequence, plaintiffs presented the Court of Appeal with a narrow question, namely whether plaintiffs “adequately alleged an ‘unfair’ act or practice under the UCL considering the trial court's ruling that Apple's practices constituted permissible unilateral conduct.” Id.; see also id. at 434 (“The central premise of Plaintiffs' argument is that Chavez was wrongly decided to the extent it held that a failed antitrust claim cannot be replead as an unfair business practice under the UCL.”).

The Court of Appeal concluded “that the Colgate doctrine provides Apple with a ‘safe harbor’ against Plaintiffs' UCL claim under the ‘unfair’ prong.” Id. at 441. Consistent with Chavez, “a plaintiff cannot plead around the absolute bar imposed by the Colgate doctrine by resurrecting a failed antitrust claim as an unfair business practice under the UCL, especially when, as here, the only other cause of action alleged in the SAC was a violation of the Cartwright Act.” Id. at 440.

*30 Applied to this case, Beverage does not warrant setting aside this Court's judgment and Injunction. First, Beverage did not change California law. The plaintiffs argued that “Chavez was wrongly decided and is ‘wholly inconsistent’ with Cel-Tech.” Id. at 439. The Court of Appeal disagreed: “Chavez is entirely consistent with Cel-Tech,” and “[i]ts holding has been adopted and applied by other California Courts of Appeal.” Id. at 440–41. In other words, the Beverage decision explicitly declined to change California law. Ironically, Apple agrees: despite Apple's motion before this Court, in Apple's answer to the Beverage plaintiffs' petition for review in the Supreme Court of California, Apple wrote that the “decision below followed a decision of the Second Appellate District that reached the same result more than 20 years ago, Chavez v. Whirlpool Corp. ... California courts have followed Chavez for more than two decades, and no California appellate court has questioned or departed from its holding.” Answer to Petition for Review (“Apple's Answer to Petition”) at 7, Beverage v. Apple Inc., No. S285154 (Cal. June 18, 2024).[53]

Second, this Court's judgment does not conflict with Beverage. The Beverage court stressed that its “decision is a narrow one” which “is limited to situations typified by this case, where the same conduct found immune from antitrust liability by the Colgate doctrine is also alleged to violate the ‘unfair’ prong of the UCL.” Beverage, 320 Cal. Rptr. 3d at 442. That is not this case. Neither this Court nor the Ninth Circuit have held that Apple's conduct at-issue in this case is immune from antitrust liability under the Colgate doctrine, nor did either court disagree with the law articulated in Colgate or Chavez.[54]

Once again, Apple's answer to the Beverage plaintiffs' petition for review in the Supreme Court of California is instructive. In its briefing, Apple argued that the Beverage plaintiffs “are wrong” to “argue that Chavez and the decision below are inconsistent with decisions in a federal court lawsuit involving Epic Games,” i.e., this case. Apple's Answer to Petition at 11–12. “The Ninth Circuit did not disagree with Chavez, nor did it address the applicability of the Colgate doctrine to the conduct challenged in that case, and therefore did not resolve the issue presented in this case.” Id. at 12. The Beverage court itself acknowledged as much. See Beverage, 320 Cal. Rptr. 3d at 446 n.6 (“The Ninth Circuit and the district court mentioned Chavez only in passing, and neither court engaged a rigorous analysis of the Colgate doctrine and its effect on UCL claims. We therefore do not find these decisions persuasive on the precise issue presented by this appeal.”).

Apple had the opportunity to argue that Colgate immunized its antitrust liability before this Court in the first instance, before the Ninth Circuit, and on petition for certiorari at the Supreme Court. Direct appeal was the appropriate route for a challenge under Colgate, and Apple lost on appeal. Apple cannot revisit its prior losses under Rule 60(b) absent a significant change in factual conditions or the law, and Beverage's affirmance of settled California law does not change to the legal theories previously available to Apple at trial and on appeal.[55]

*31 Third, Beverage does not “permit what was previously forbidden.” See California v. EPA, 978 F.3d at 719. The Beverage trial court dismissed the plaintiffs' claims at the motion to dismiss stage, and the Court of Appeal assumed without deciding that Apple's conduct as pled was permissible under the Cartwright Act, because plaintiffs conceded that issue for purposes of appeal. Beverage, 320 Cal. Rptr. 3d at 439. The Court of Appeal did not decide whether Apple's anti-steering provisions violated antitrust law and was faced instead with the narrow question of whether plaintiffs' concession as to their Cartwright Act claims rendered their UCL unfairness claim non-cognizable as a matter of pleading.[56]

Beverage does not warrant setting aside this Court's judgment and injunction under Rule 60(b).

2. Murthy v. Missouri

In Murthy, the “plaintiffs, two States and five social-media users, sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the First Amendment.” Murthy, 603 U.S. at 49. The Fifth Circuit agreed and “affirmed a sweeping preliminary injunction.” Id. The Supreme Court reversed, holding that the plaintiffs failed to establish standing by “demonstrat[ing] a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.” Id. at 49–50, 76.

The Supreme Court reiterated the familiar rule that, to establish standing, at least one plaintiff “must show that she has suffered, or will suffer, an injury that is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’ ” Id. at 57 (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)). The Murthy plaintiffs claimed “standing based on the ‘direct censorship’ of their own speech as well as the ‘right to listen’ to others who faced social media censorship.” Id. However, both theories depended on the conduct of third-party social media platforms, rather than the conduct of the defendant Government agencies and officials alone. Id. This “one-step-removed, anticipatory nature of their alleged injuries” presented two particular challenges. Id.

First, “it is a bedrock principle that a federal court cannot redress ‘injury that results from the independent action of some third party not before the court,’ ” id. (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976)), and as a consequence courts are “reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment,” id. (quoting Clapper, 568 U.S. at 413). For those theories, plaintiffs must show that the third party “will likely react in predictable ways” to the defendants' conduct. Id. at 57–58 (citation omitted). Second, the Supreme Court explained that “because the plaintiffs request forward-looking relief, they must face ‘a real and immediate threat of repeated injury.’ ” Id. at 58 (quoting O'Shea v. Littleton, 414 U.S. 488, 496 (1974)).

“Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.” Id. “On this record, that is a tall order.” Id. “The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation.” Id. at 59. Neither the district court nor the Fifth Circuit made any specific causation findings. Id. Operating at such a high level of generality, the Supreme Court explained, was insufficient to establish standing in a “sprawling suit like” Murthy where “plaintiffs faced speech restrictions on different platforms, about different topics, at different times,” “[d]ifferent groups of defendants communicated with different platforms, about different topics, at different times,” and each platform had “independent incentives to moderate content.” Id. at 61. Nor did plaintiffs' allegations support “obtain[ing] forward-looking relief”: “without proof of an ongoing pressure campaign, it is entirely speculative that the platforms' future moderation decisions will be attributable, even in part, to the defendants.” Id. at 69.

*32 Applied to this case, Murthy does not warrant setting aside this Court's judgment and Injunction against Apple. First, Murthy did not change the law of standing, but rather applied familiar rules of standing to a novel circumstance. Apple argues that the “Court in Murthy explained that it is a ‘tall order’ to establish standing for an injunction when the plaintiff's theory of future injury depends on anticipated conduct of ‘independent decisionmakers.’ ” (Dkt. No. 1018 at 12.) That mischaracterizes Murthy: as to establishing plaintiffs' standing, the Court wrote that “[o]n this record, that is a tall order.” Murthy, 603 U.S. at 58 (emphasis supplied). Rather, the Court stressed that it was not applying a new and elevated standard. See id. at 74 n.11.

Second, Apple muddles the law and advances an argument that has little to do with Murthy. As Epic points out, Apple conflates two issues: whether Epic has standing to obtain an injunction, and the appropriate scope of that injunction. As to Epic's standing, while Murthy articulates the applicable legal framework at a high level, Murthy neither changes that framework nor addresses the foundation of Epic's standing to challenge Apple's anti-steering provisions, i.e., injury to Epic as a competing game distributor and injury to Epic's subsidiaries' earnings. See Epic Games, Inc., 67 F.4th at 1000.

As to the appropriate scope of an injunction once a party has established standing, Murthy provides no instruction because Murthy did not reach that distinct question. The Ninth Circuit's opinion in this case is indicative: that opinion discussed Epic's standing in one section under one set of legal standards, and the availability and scope of the injunction in another section under a different set of legal standards. See Epic Games, Inc., 67 F.4th at 999–1000, 1002–03. The same is true for Judge Smith's concurrence in the order granting the motion to stay the mandate pending filing a petition for certiorari. See Epic Games, Inc. v. Apple, Inc., 73 F.4th 785 (9th Cir. 2023) (Smith, J., concurring).

Apple's citation to Murthy is the latest installment in its repeated attempts to cabin the scope of the injunction. Fundamentally, Apple argues that “[u]nder Murthy, Epic lacks standing to enjoin Apple's application of its anti-steering rules toward third-party developers.” (Dkt. No. 1018 at 13.)[57] To be clear, neither this Court nor the Ninth Circuit have held, as Apple continues to try and mischaracterize, that Epic has obtained injunctive relief on behalf of third parties.[58] Rather, Epic has standing to seek injunctive relief with respect to its own injuries. That relief, as this Court, the Ninth Circuit, and Judge Smith's concurrence on the order to stay made clear, “enjoin[ed] Apple's anti-steering provision as to all iOS developers because doing so was necessary to fully remedy the harm that Epic suffers in its role as a competing games distributor.” Epic Games, Inc., 73 F.4th at 787 (Smith, J., concurring) (emphasis supplied). Apple's arguments to the contrary and mischaracterization of those findings have been repeatedly rejected.[59]

*33 In short, Murthy has little to do with this case, does not change the relevant law, and as such does not warrant setting aside this Court's judgment and injunction.[60]

* * *

Because neither Beverage nor Murthy have altered the law, the factual circumstances of this case, or now “permit what was previously forbidden,” California v. EPA, 978 F.3d at 719, Apple has failed to show that applying the judgment “prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). Thus, Apple's motion for relief from the judgment is DENIED.

B. Epic's Motion to Enforce Injunction

On March 13, 2024, Epic moved to enforce the Injunction after Apple released its compliance program with the Link Entitlement. (Dkt. No. 897.) Epic requests that this Court “enter an order (1) holding Apple in contempt for violating the Court's Injunction; (2) requiring Apple to promptly bring its policies into compliance with the Injunction; and (3) requiring Apple to remove all anti-steering provisions” in its developer guidelines.” (Id.)

The Court may hold Apple in civil contempt if Apple violated “a specific and definite court order by failure to take all reasonable steps within the part's power to comply.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). “[T]he party alleging civil contempt must demonstrate by clear and convincing evidence that (1) the contemnor violated a court order, (2) the non-compliance was more than technical or de minimis, and (3) the contemnor's conduct was not the product of a good faith or reasonable interpretation of the violated order.” Facebook, Inc. v. Power Ventures, Inc., 2017 WL 3394754, at *8 (N.D. Cal. Aug. 8, 2017). Sanctions for civil contempt are warranted where a court “weighs all the evidence properly before it” and determines that there is a “present ability to obey” and past “failure to do so [that] constitutes deliberate defiance or willful disobedience which a coercive sanction will break.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 n.6 (9th Cir. 1983). In awarding civil contempt sanctions, the Court must “consider the character and magnitude of the harm threatened by continued contumacy, and the probably effectiveness of any suggested sanction.” Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1983).[61]

*34 “Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974).[62] “In deciding whether an injunction has been violated it is proper to observe the objects for which the relief was granted and to find a breach of the decree in a violation of the spirit of the injunction, even though its strict letter may not have been disregarded.” Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc'y, 774 F.3d 935, 949 (9th Cir. 2014) (quoting John B. Stetson Co. v. Stephen L. Stetson Co., 128 F.2d 981, 983 (2d Cir. 1942)). “[A]ll ambiguities are resolved in favor of the person subject to the injunction.” Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995) (citation omitted).

The Court's analysis is divided in two parts. First, the Court considers Apple's defense that it need not look outside the text of the Injunction and considered this Court's and the Ninth Circuit's orders that explained the legal basis for the injunction. Second, for efficiency purposes, the Court has indicated in the factual section above each time it found that Apple had chosen to respond to the Injunction with the most anticompetitive options it considered. That, taken together, evidences clear and convincing evidence of Apple's violation of the Injunction. Nonetheless, the Court expounds further on how Apple's response violates this Court's orders.

1. The Letter and Spirit of the Injunction

As a preliminary matter, Apple disputes whether this Court can look outside the four corners of the injunction to hold it in civil contempt. In Sea Shepard, the Ninth Circuit provided that “it is proper to observe the objects for which the relief was granted and to find a breach of the decree in a violation of the spirit of the injunction, even though its strict letter may not have been disregarded.” 774 F.3d at 949. Despite this unequivocal language, Apple argues that the Court cannot look to the spirit or other objects of the Injunction and judgment issued against it relying on one district court case that appears to have tried to limit Sea Shepherd to its facts. See Epona, LLC v. Cnty. of Ventura, 2019 WL 4187393, at *14 (C.D. Cal. Apr. 12, 2019) (“Sea Shepherd did not conclude that a party may be held in contempt for refusing to engage in affirmative conduct that is not required by the terms of a prohibitory injunction, or for engaging in conduct that is not specifically and definitely prohibited therein.”).

The Court disagrees. There are several issues with Apple's argument. First, it is ludicrous to expect any court to repeat the contents of a 180-page order issued in conjunction with a simultaneously issued one-paragraph injunction. The latter flows from the former. To suggest otherwise strains credulity. Second, even limited to the four corners of the Injunction, Apple violated the literal text. Third, contrary to Apple's position, other courts within this and other circuits will look to the spirit of the injunction when a litigant applies a dubiously literal interpretation of the injunction, particularly where that interpretation is designed to evade the injunction's goals. See, e.g., Simon v. City & Cnty. of San Francisco, No. 22-CV-05541-JST, 2024 WL 4314207, at *3 (N.D. Cal. Sept. 26, 2024) (“Arguably, this conduct does not violate the strict terms of the injunction .... [However,] there can be no question that the conduct violates the spirit of the injunction.”); John B. Stetson Co. v. Stephen L. Stetson Co., 128 F.2d 981, 983 (2d Cir. 1942) (“In deciding whether an injunction has been violated it is proper to observe the objects for which the relief was granted and to find a breach of the decree in a violation of the spirit of the injunction, even though its strict letter may not have been disregarded.”); United States v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir. 1972) (While ambiguities are resolved in favor of the person charged with contempt, “this is not to say that where an injunction does give fair warning of the acts that it forbids, it can be avoided on merely technical grounds. The language of an injunction must be read in the light of the circumstances surrounding its entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.”); see also Cnty. of Fulton v. Sec'y of Commonwealth, 292 A.3d 974, 1007 (Pa.), cert. denied 144 S. Ct. 283 (2023) (“To similar effect is a long list of cases, including a Second Circuit case in which the court rejected a defense based upon a dubiously literal interpretation of an order ....”).

*35 Fourth, Apple's approach would require courts to effectively engage in a “whack-a-mole” game to require compliance. Consider Justice Douglas's reasoning in McComb v. Jacksonville Paper Company:

It does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we condemned [previously]. The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught.

336 U.S. 187, 192–93 (1949). This case presents the same reality today and risk for tomorrow. The Court prohibited certain of Apple's policies that prevented meaningful competition with IAP. Apple rewrote those policies by choosing a different anticompetitive path (that was more expensive for developers) with full knowledge of what it was doing. Apple had its opportunity to conduct a bottoms-up analysis of the value of its services. It declined to do so. Instead, it opted to construct a program that nullified the revenue impact of the Injunction by prohibiting any viable alternative.

Fifth, Apple's arguments that the Court did not enjoin Apple's commission ignore explicit findings in the Injunction. Most importantly, this Court, and the Ninth Circuit, found Apple's 30% commission on IAP transactions was supracompetitive and unjustified. The Court and the Ninth Circuit further found that Apple's then-existing program to stifle competition violated the UCL, especially as seen in the anti-steering provisions. Thus, all acts are based upon those identified above as the “Primary and Overarching Findings” resulting in this contempt order.

Crucially, no commissions had ever existed on external link-out purchases. That is undisputed. Apple's new attempt to change this “zero commission” rubric are evaluated under the terms of the Injunction. While true that the Court did not select a rate, the Court is authorized to evaluate Apple's response to the Injunction as based on its Primary and Overarching Findings. See Epic Games, Inc., 559 F. Supp. 3d at 1069 (explaining that eliminating Apple's anti-steering provisions “does not require the Court to micromanage business operations which courts are not well-suited to do as the Supreme Court has appropriately recognized”).

As set forth in detail above, the Court finds that the evidence clearly and convincingly demonstrates that Apple willfully chose to ignore the Injunction, willfully chose to create and impose another supracompetitive rate and new restrictions, and thus willfully violated the injunction.[63] In fact, despite numerous opportunities, not once did Apple choose a path that would have shown compliance.

*36 In short, Apple's conduct lacks any justification: it does not comport with the text of the Injunction, requires a strained and questionable interpretation of that language, completely ignores this Court's 180-page Injunction and the Ninth Circuit's 91-page opinion, and prompted lies on the witness stand. The law requires that Apple be on notice of the scope of permissible conduct to hold Apple in civil contempt. Apple was. In fact, at every step Apple considered whether its actions would comply, and at every step Apple chose to maintain its anticompetitive revenue stream over compliance. Given the repeated misrepresentations, the real-time business documents, and the proffer of a made-for-litigation expert “report,” the Court reasonably concludes that Apple knew it was violating the Injunction.

2. More Specific Findings of Civil Contempt

Several aspects of the Link Entitlement program, taken together and to a certain extent independently, violate the Injunction. The Court considers them in two groups: (i) the commission rate, and (ii) design restrictions and purchase-flow friction.

The Commission Rate. As described above, Apple assessed the external costs developers face when utilizing linked-out transactions, which generally ranged based on the size of the developer—the larger the developer, the better able to reduce the external costs of linked-out transactions. With that information, Apple selected a 3% discount on its 30% IAP commission that it knew was anticompetitive. In doing so, Apple willfully set a commission rate that in practice made all alternatives to IAP economically non-viable.[64] The Court cannot conceive of how any reasonable mind interpreting this Court's and the Ninth Circuit's orders would find that structure permissible, because it forecloses competitive alternatives. That appears to have been the point. Business documents reveal that the internal justification was to maintain the existing anticompetitive revenue stream.

This Court previously recognized that “[e]ven in the absence of IAP, Apple could still charge a commission on developers.” Epic Games, Inc., 559 F.Supp.3d at 1042.[65] Apple was tasked with valuing its intellectual property, not with reverse engineering a number right under 30% that would allow it to maintain its anticompetitive revenue stream. Id. at 994 (“Apple cannot hide behind its lack of clarity on the value of its intellectual property.”). Apple and Mr. Schiller knew this. (See Feb. 2025 Tr. 1893:11–1894:22 (Schiller).) Apple ignored this opportunity choosing instead to retroactively justify the desired end result.

*37 The AG report's recommendation of a commission rate on link-out transactions as the basis for its commission determination is entirely manufactured, and Apple's reliance thereon is a sham. (See, e.g., Dkt. No. 1324, Apple's Post-Hearing Br. at 12.) As the 2025 hearing revealed, the AG's report did not materially factor into Apple's decision-making process. It was created as a show piece for the Court. The plan backfired.

The real-time business documents which the Court ordered Apple to produce revealed the true business decision. Apple's focus was on the impacts to its revenue as well as some analysis of the costs developers would face when implementing a link-out transaction. The AG report only appears in a public-facing presentation for the July 5, 2023 meeting where Apple decided to impose a 27% commission. Thus, the Court does not credit the AG report as support for a bottoms-up analysis of the value of Apple's intellectual property.

Design Restrictions and Purchase-Flow Friction. In addition to a commission rate, Apple imposed a variety of restrictions on developers' ability to craft a link-out program: requiring any external purchase link be placed outside of the IAP purchase-flow to which a user is ordinarily directed; prohibiting developers from designing “buttons” aside from Apple's “plain ‘link’ button” style; prohibiting developers from using any calls to action aside from a limited set defined by Apple; instituting a full-window takeover (scare screen) after clicking on an external link only in the context of purchases of digital goods; and prohibiting the use of dynamic URLs.

This Court previously explained that the “measured remedy” of eliminating Apple's antisteering provisions “will increase competition, increase transparency, increase consumer choice and information while preserving Apple's iOS ecosystem which has procompetitive justifications.” See Epic Games, Inc., 559 F.Supp.3d at 1069. Despite that directive, Apple decided to replace the explicit anti-steering provisions the Injunction prohibited with a mosaic of the same: an ensemble of requirements that significantly reduces developers' ability to steer consumers to any competitive, favorable alternatives. Nor was this accidental: Apple's sensitivity analyses of breakage reveal that Apple was modeling precisely the amount of friction needed in a transaction to ensure that link-out transactions were not viable for a developer. While Apple initially considered imposing some of these restrictions as an alternative to a commission, it decided to impose all restrictions and set a commission rate. In other words, Apple sought to secure its illegal revenue stream from every angle.

Apple's justifications for these requirements (set forth above) strain credulity. Most notably, and to underscore Apple's meritless justifications, Apple does not require developers selling physical goods to apply for a link entitlement before deploying link-out transactions. Apple imposes these restrictions only for link-outs that compete with IAP.

Further, two of Apple's restrictions are explicitly at odds with the Injunction. The Injunction prevented Apple from stopping developers from “including in their apps and their metadata buttons, external links, or other calls to action that direct customers to purchasing mechanisms, in addition to” IAP. Apple resorts to dictionaries (see Dkt. No. 1324 at 15–16) to argue that it no longer categorically prohibits developers from using buttons or other calls to action.[66] While perhaps literally true, the gamesmanship abounds as the business documents reveal the true motive (and do not rely on dictionaries).

*38 For button styles, Apple limits developers to what Apple calls the “plain” button style—essentially just a hyperlink—because Apple does not want the developers to use the more effective “button.” A more effective button would increase competition. (See Feb. 2025 Tr. 1212:9–1213:22 (Schiller).) Similarly, Apple limits calls to action to five, narrowly cabined templates. (See CX-3.5.) Nowhere does the Court authorize those limitations. At a minimum, the Court need not decide whether these restrictions alone violate the Injunction, because Apple has violated the central mandate of this Court's orders: that Apple not foreclose competitive alternatives to IAP.[67]

To summarize, this Court's orders required that Apple not impose restrictions in its iOS marketplace which would prohibit consumer access to and awareness of competitive alternatives to IAP. The Injunction specifically enjoined Apple's anti-steering provisions which at the time prohibited developers from raising that consumer awareness and access. In response, Apple intentionally devised a compliance scheme to prevent developers from deploying competitive alternatives to IAP. Apple's discounted commission rate, on its own, forecloses a developer's use of link-out purchases. Adding to that, Apple's various design restrictions and purchase-flow friction arbitrarily decrease the attractiveness of competitive alternatives (if they were utilized) and increase breakage in a purchase flow.

Apple's conduct violates the Injunction. The non-compliance was far from “technical or de minimis.” Apple's lack of adequate justification, knowledge of the economic non-viability of its compliance program, motive to protect its illegal revenue stream and institute a new de facto anticompetitive structure, and then create a reverse-engineered justification to proffer to the Court cannot, in any universe, real or virtual, be viewed as product of good faith or a reasonable interpretation of the Court's orders.

The Court HOLDS Apple in civil contempt. Sanctions and relief with respect to Apple's noncompliance are set forth infra Section IV.

C. Privilege Disputes[68]

1. Apple's Motion to Strike

Apple moves to strike Philip Schiller's February 2025 testimony concerning a document that Apple improperly under-redacted for privilege. (Dkt. No. 1328.) The Court rejects Apple's invitation to reconsider its prior ruling from the bench. Apple waited to raise its privilege objection until after Mr. Schiller testified about the document at length. At the hearing the following day, Apple's attorneys conceded their oversight in failing to object to the exhibit and Epic's questioning. (Feb. 2025 Tr. at 1443:23–24) (“I do understand the cat-is-out-of-the-bag problem from yesterday....”) The Court agreed and ruled that “[y]esterday's testimony stands.” (Feb. 2025 Tr. at 1447:8.) That Apple is having second thoughts about its decision does not make for a proper motion for reconsideration. The testimony stands. Apple's Motion for Reconsideration is DENIED.

2. Apple's Rule 502(d) Motion

*39 Prior to the February 2025 testimony, Apple moved for an order pursuant to Federal Rule of Evidence 502(d) that would “confirm[ ] that Apple's production of certain documents to [Epic] over which Apple continues to maintain claims of attorney-client privilege or work product protection,” and any use of those documents at the hearing or in connection with Epic's motion to enforce, “does not waive any applicable protections in this proceeding or any other.” (Dkt. No. 1198 at 2.) At the hearing, the Court rejected Apple's motion for an order pursuant to Rule 502(d). (Feb. 2025 Tr. at 1125:23–1126:12.) In short, a Rule 502(d) order is inappropriate where the Court has held that the at-issue documents are not privileged. The Court elaborates as to two further considerations presented in the papers:

First, as to documents Apple has produced to Epic, Apple has been “compelled” by this Court to produce those documents over its objection, so in general Apple has not waived privilege with respect to documents by virtue of their production alone. See Transamerica Computer Co. v. Int'l Bus. Machines Corp., 573 F.2d 646, 651 (9th Cir. 1978). That said, the Court does not and need not decide in general whether Apple's production constitutes waiver absent a review of specific documents and the particular context of their production.

Second, as to the use of any documents in the evidentiary hearing for which Apple maintains a claim of privilege, the Court cannot issue a carte blanche ruling that any use of privileged documents will not constitute waiver. Waiver will depend on what documents are used by which party and how they are used. On the one hand, should Epic make an offensive use of a privileged communication, Apple's defensive use of the portions of that same communication for which this Court has rejected Apple's claim of privilege will likely not constitute waiver, just as in Apple's cited case, Shenzhenshi, 2017 WL 8948739, at *5 (N.D. Cal. Nov. 15, 2017). On the other hand, Apple's offensive introduction of a privileged communication will likely constitute waiver, under the well-established doctrine that attorney-client privilege may not be used both as a sword and shield.

All this is to say, the Court declined to permit Apple to pre-litigate whether it will waive privilege over unspecified documents that it might use for different purposes at this evidentiary hearing. Apple's motion for an order pursuant to Rule 502(d) is DENIED.

3. Abuse of Privilege

The Court discussed Apple's abuse of its privilege assertions supra Section I.D, which caused months of delay in this proceeding. Notably, as discussed earlier, on re-review Apple withdrew a significant body of its privilege claims, effectively withdrawing approximately 42.1% of those claims. These dilatory tactics were unwarranted, wasted party and judicial resources, and delayed the Court's ability to effectuate relief.

The Court's discussion in its December 31, 2024 order on Apple's first motion for relief provided the foundation for how Apple integrated the presence of legal personnel into documentation of business decisionmaking that, by this Court's and Judge Hixson's determinations, did not involve the provision of legal advice. (See Dkt. No. 1095.)

Adding a lawyer's name to a document does not create a privilege. Instructions from Apple's internal counsel Jennifer Brown are illustrative. In a set of email exchanges discussing drafts of a Project Wisconsin presentation, Ms. Brown wrote, “[a]lso, one procedural tweak - can we change the ‘Prepared at the Request of Counsel’ label in the slides to ‘Prepared at the Request of External Counsel’. This work is necessary for our outside counsel to advocate our compliance.” (CX-538.4.) Every email on this email thread self-designates as privileged, as does every slide in the presentation, even though the vast majority of information therein this Court and Judge Hixson have held do not contain privileged information, but rather documents the business assessment Apple was conducting that is central to enforcement of the Injunction. While Ms. Brown explained that Apple was “working very closely with” external counsel “throughout the entire process” (Feb. 2025 Tr. 1615:4–5), that does not automatically confer privilege protections on all documents relevant to that process.

*40 The record is rife with such examples of over-designation of privilege. As another example, consider an email discussed above from Apple's counsel Sean Cameron sent to Tim Cook, among others, on Friday, June 23, 2023. The email reads, in full:

Privileged and Confidential

Tim,

At our meeting on Tuesday, you asked the team to revise the customer warning screen (which is surfaced when a customer taps on a link to the developer 's web site) to reference the fact that Apple's privacy and security standards do not apply to purchases made on the web.

The team worked on updated copy — please see the original and updated versions below. We reviewed with Phil, Matt, and Jeff and believe that the revised language in bold clearly highlights the issue for customers.

Please let us know if you have any comments, or if we are clear to move ahead with this change.

Thank you.

1. Imposing any commission or any fee on purchases that consumers make outside an app, and as a consequence thereof, no reason exists to audit, monitor, track or require developers to report purchases or any other activity that consumers make outside an app;

2. Restricting or conditioning developers' style, language, formatting, quantity, flow or placement of links for purchases outside an app;

3. Prohibiting or limiting the use of buttons or other calls to action, or otherwise conditioning the content, style, language, formatting, flow or placement of these devices for purchases outside an app;

4. Excluding certain categories of apps and developers from obtaining link access;

*46 5. Interfering with consumers' choice to proceed in or out of an app by using anything other than a neutral message apprising users that they are going to a third-party site; and[75]

6. Restricting a developer's use of dynamic links that bring consumers to a specific product page in a logged-in state rather than to a statically defined page, including restricting apps from passing on product details, user details or other information that refers to the user intending to make a purchase.

Footnotes

[1]

See Dkt. Nos. 812 and 813 (Rule 52 Order and Injunction), and 814 (judgment); see also Epic Games, Inc. v. Apple Inc., 559 F.Supp.3d 898 (N.D. Cal. 2021) (Rule 52 Order), aff'd in part, rev'd in part and remanded, 67 F.4th 946 (9th Cir. 2023). As the Injunction concerns this Court's findings with respect to the UCL, the Court does not recite its findings with respect to Epic's other state and federal claims. For the Reader's Convenience, a table of contents is included as Attachment A.

[2]

On March 13, 2024, Epic filed a motion to enforce this Court's injunction because Apple “is in blatant violation of this Court's injunction.” (Dkt. No. 897.) Epic requests that this Court “enter an order (1) holding Apple in contempt for violating the Court's Injunction; (2) requiring Apple to promptly bring its policies into compliance with the Injunction; and (3) requiring Apple to remove all anti-steering provisions” in its developer guidelines.” (Id.)

[3]

Apple's “entitlement” perspective and mantra persisted beyond the Injunction. For example, Apple's Communications Director, Marni Goldberg, texted her colleague during the first evidentiary hearings, that “It's Our F***ING STORE.” (CX-0244.38.) Not surprisingly (nor convincingly), she did not “recall” sending those messages. (Feb. 2025 Tr. 1817:5-9 (Goldberg).)

[4]

The Court denied Apple's motion to stay the Injunction pending Apple's appeal to the Ninth Circuit. (Dkt. No. 830.) On December 8, 2021, the Ninth Circuit granted Apple's motion to stay the Injunction pending appeal. (Dkt. No. 841.)

[5]

Apple declined to reinstate Epic's developer account after this Court held in its Order that Epic had breached the DPLA. See Epic Games, Inc., 67 F.4th at 999.

[6]

The Court also granted the filing of amici curiae briefs in support of Epic's motion to enforce from Meta Platforms, Inc., Microsoft Corporation, X Corp., and Match Group, LLC (Dkt. No. 904); Spotify USA Inc. (Dkt. No. 906); and Digital Content Next (Dkt. No. 908.) (Dkt. No. 913.)

[7]

Later, on December 31, 2024, this Court upheld Judge Hixson's findings in full. (Dkt. No. 1095.)

[8]

Including documents Apple identified as falling within Judge Hixson's ruling on the 11 exemplar documents—for which Apple maintains its claims of privilege—that number jumps to 55.9% of documents downgraded from Apple's original claims. (Id. at 6 & n.7.)

[9]

At least as of January 31, 2024, the special masters upheld Apple's privilege claims on this reduced body of proposed redactions at a rate of approximately 89.1%, overruling in part as to 0.8%, and rejecting the balance as to 10.1%. (Id.)

[10]

The transcripts of the hearing from May 2024 and February 2025 are consecutively paginated and cited as “May 2024 Tr.” or “Feb. 2025 Tr.” throughout. (See Dkt. Nos. 976 (May 8, 2024), 977 (May 10, 2024), 978 (May 16, 2024), 979 (May 17, 2024), 980 (May 22, 2024), 981 (May 31, 2024), 1306 (February 24, 2025), 1307 (February 25, 2025), 1308 (February 25, 2025 (sealed portion)), and 1309 (February 26, 2025).)

[11]

The Court left open the option of a further evidentiary hearing in the event the ongoing document review revealed the need for further hearings.

[12]

See May 2024 Tr. 543:23–544:8 (Oliver) (“Historically, ... we only commissioned the sale of digital goods and services that were sold directly within apps that were distributed through the App Store. For all other digital goods and services sold outside the App Store, there was no commission. And the basic principle there was that if we provided a user to a developer, that we were commissioned on those users that purchased ... within the app, and where the developer was able to guide a user outside of the store to a sale of the digital goods or service, they were welcome to use that within their own app.”).

[13]

As Mr. Oliver confirmed, this second option—under which “Apple would allow alternative payments but seek a commission for the[ir] use”—is essentially the option Apple chose in Korea, the Netherlands, and in the United States. (Feb. 2025 Tr. 1399:16–1400:7.)

[14]

See also Feb. 2025 Tr. 1398:4–6 (Mr. Oliver: “I remember this specifically related to one geography [Korea]. I don't ... know if this project was covering multiple geographies or just one.”).

[15]

On January 17, 2024, the Ninth Circuit's mandate issued, after the Supreme Court declined review. (Dkt. No. 879.)

[16]

As to the risk that Option 1 “[d]iverges significantly from existing and future approaches” (CX-272.7), Mr. Oliver acknowledged that this risk encompasses the concern that if Apple adopted a no-commission approach on link-outs in the United States, it would be harder to justify a commission elsewhere in the world (Tr. 1453:22–1454:5).

[17]

More precisely, Apple estimated a revenue impact of [redacted] million to [redacted] billion.

[18]

More precisely, Apple estimated a revenue impact of [redacted] million to [redacted] million.

[19]

The slide presenting revenue impacts of a 27% commission focused on adoption by the top 10 and 50 developers, greying out the rows for top 200 developers and all developers because Apple expected that this option “would be only more attractive to the largest developers.” (Feb. 2025 Tr. 1469:1–2; CX-272.13.)

[20]

While Mr. Oliver testified that he did not recall the document (Feb. 2025 Tr. 1410:12–24 (Oliver)), the email reflects that Bumble's slides were sent to him and at least 14 other members of Apple's legal, business, and finance teams (CX-246.1.)

[21]

Bumble proposed as solutions to (1) “[v]ary fee rates to match payment method basis (e.g. credit card [redacted], carrier billing [redacted])” or (2) “[r]evise 4% global ‘average’ closer to developer's actualized average (e.g.[redacted])”. (CX-246.11.)

[22]

Compare CX-246.11 (Bumble estimating developer's actualized average costs at [redacted]), with CX-265.27 (Apple estimating external costs for “extra large developers” at and external costs for “medium” sized developers at [redacted]); see also Feb. 2025 Tr. 1627:15–1628:10 (Vij).

At the time, Apple also knew of the virtually nonexistent adoption rates of the Netherlands and Korea programs. Those, similar to the at-issue program, additionally suggested to Apple the non-viable economics of the proposed program. See Feb. 2025 Tr. 1407:1–5 (“Q. [F]or example, as of October 2022, ten months into the Netherlands program and four months into the Korea program, only one developer had signed up for alternative payments across the two programs.

A. That seems roughly correct, yes.”) (Oliver).

[23]

Apple executive Alex Roman testified under oath that he did not look at comparables to estimate the costs of alternative payment solutions that developers would need to procure to facilitate linked-out purchases. That testimony is not believable. (May 2024 Tr. 266:22–267:11 (Roman).)

[24]

As throughout, each discount reflects a discount from a 30% commission, i.e., a 3% discount results in a 27% commission, a 5% discount results in a 25% commission, and a 7.5% discount results in a 22.5% commission. Feb. 2025 Tr. 1638:15–17 (Vij).

[25]

As to another option—Option 3, included in the presentation's appendix and which would provide a commission on linking out and a 0% commission on in-app text communications —the speaker notes explain that “[w]e ran the commission option through our developer decisioning model as well but this will likely not make economic sense for the vast majority of developers with the 3% discount. However, we know that the model is economic in nature and does not capture softer elements like customer relationship and developers ability to monetize in others [sic] ways they don't today with a transaction going through linking-out, hence we did a sensitivity.” CX-859.55.

Additionally, Apple witnesses occasionally noted that their models reflected a commission imposed “in perpetuity,” i.e., the look-back window for imposing a commission after a user clicks on a link is “perpetual,” instead of the seven-day look-back window Apple in fact adopted. (See, e.g., May 2024 Tr. 132: (“[T]o comply with the injunction, we have reduced the commission, you know, in the case of these larger developers, from 30 to 27, and added a seven-day [window]. So instead of having a 27 percent commission in perpetuity, it's just a 27 percent commission for these seven days.... [W]e expect that many, many transactions will take place after that seven-day window which would in essence bring that 27 percent rate much lower to around 18 percent.”) (Fischer). The testimony in February 2025 adduced no evidence to support Apple's contention that that it relied on a perpetual look-back window to consider its effective rate at 18%.

[26]

To remind: see quote, supra, at 9; see also, Injunction at 98 (“Apple's initial rate of 30%, although set by historic gamble, has apparently allowed it to reap supracompetitive operating margins.”); Injunction at 92 (“As an initial matter, as detailed above, the 30% commission was not set by competition or the costs of running the App Store, but as a corollary to other gaming commission rates”); Injunction at 119 (“As described above, Apple has not adequately justified its 30% rate. Merely contending that its commission pays for the developer's use of the App Store platform, license to Apple's intellectual property, and access to Apple's user base only justifies a commission, not the rate itself. Nor is the rate issue addressed when Apple claims that it would be entitled to its commission even for games distributed outside the App Store because it provides the device and OS that brings users and developers together.”)

[27]

The slide, at least, fails to provide a basis for the value of the App Store's “premium, comprehensive, at-scale offering,” other than that headline description.

[28]

Mr. Oliver, for his part, could not recall any specific feedback from developers in this vein, but acknowledged that it “seems to be the reading from the bullet” that developers in the Netherlands complained about an insufficient price margin due to Apple's commission rate. (Feb. 2025 Tr. 1504:13–17 (Oliver).)

[29]

Regardless of whether Mr. Schiller's comment that he had a question of whether Apple could impose a commission under the injunction, this was only one of the “many issues” he alluded to. (See CX-224.1.)

[30]

Apple also considered imposing a flat fee per link-out or a 20% commission for the first year. CX-223.23.

[31]

The identified “Risks” with the proposal were the same as previously described: developers “may claim” that the 3% discount does not permit price competition; the proposal diverges from planned alternative payment programs given its time duration; and there is a significant collection risk if linking-out adoption scales. CX-223.32.

[32]

Ms. Goldberg does not clearly describe the context. (CX-399.) At any rate, she conceded that “I view these notes as my attempt to record what was being said in whatever conversation I was having.” Feb. 2025 Tr. 1794:23–1795:4.

While Ms. Goldberg's opinions carry little to no weight, her real-time revelations provide context for the environment in which these decisions were being made. For instance, Ms. Goldberg showed her impressions of the potential bad press Apple may receive from charging a commission, as well as messages among her and others in the “Communications” department agreeing: “this is all very shaky to me” and that “the rationale and the defense for the commission rate [20%–27%] and the time period, the seven days, was shaky.” See CX-0540.11; Feb. 2025 Tr. 1776:16–1777:1, 1856:8–11, 1858:11–24 (Goldberg).

[33]

Epic argues that the AG's report is flawed because, among other reasons, the report relies on the Google Play store whose practices have been found in violation of antitrust law (see May 2024 Tr. 644:3–17 (Oliver)), and because Apple engaged in “creative accounting” that falsely implied Apple required external link commissions to make a fair return on the App Store, even though this Court has found that the App Store operates at a 75% margin (see May 2024 Tr. 225:15–226:14 (Oliver); Dkt. No. 1325-2, Epic's Post-Hearing Findings of Fact at 16).

[34]

The Court understands the technicality that a decision is not made until it is made, but this was not a seat-of-the-pants decision. Considerable work and debate had occurred. The evidence demonstrates that the decision had been made, and all things being equal, nothing would change. To suggest otherwise was to manifest an intent to mislead, misdirect, and lie.

[35]

Mr. Schiller acknowledged this is true “[i]n theory.” (Feb. 2025 Tr. 1213:17–22.) When pressed by the Court whether “if there is any other significant consideration, there will be some writing about it,” Mr. Schiller speculated as to what Apple did not analyze, e.g., “whether color or font size or specific page placement or frequency” had a particular impact. (Feb. 2025 Tr. 1213:24–1214:5 (Schiller).) As noted at the hearing, if the consideration was not pursued and presented in the various meetings, or otherwise documented in the voluminous discovery produced, then it bears to reason it was not a particularly important consideration.

[36]

In Apple's words, breakage refers to when a “customer drop[s] off during the buy-flow process due to a less seamless experience compared to Apple's iAP [sic].” (CX-224.15; see also Tr. 1631:20–22 (Vij).)

[37]

May 2024 Tr. 676:23–677:6 (Schiller) (“Q. And were you the final decision-maker on the details and contours of the response plan that Apple announced on January 16? [Mr. Schiller:] I was one of the decision-makers, not the only one. Q. Who were the other final decision-makers along with you? [Mr. Schiller:] Mr. Cook, Mr. Maestri, and there were other senior executives who were involved in the meeting and provided input, but I would say we were the primary approvers at the end.”).

[38]

May 2024 Tr. 83:15–22, 84:14–25 (Fischer) (“The Court: ... When you were all talking about this, ... was any rationale provided for requiring this, not suggesting it, but requiring it when you all know that what it will do is stifle competition? Any other reason given? Because if you cannot identify one, that's my assumption. [Mr. Fischer]: I don't remember exactly .... The Court: So the answer is no, you cannot think of any other reason for requiring that. [Mr. Fischer]: No.”).

[39]

The Court notes here that while, generally speaking, Mr. Schiller provided some credible testimony, he was in the courtroom to hear everyone testify. Thus, when he testified and attempted to rehabilitate the record, he is less credible and the Court discounts that testimony.

[40]

The “[i]n-app system disclosure sheet” explained that “[e]ach time your app calls the StoreKit External Purchase Link API, it will surface a disclosure sheet provided by the system (iOS 15.4 and/or iPadOS 15.4 or later) that explains to the user that they'll be leaving the app and going to an external website to make a purchase through a source other than Apple. When a user taps the Continue button, they will be directed to your website within a web browser.” (CX-3.5.)

[41]

The Netherlands Authority for Consumers and Markets (“NACM”) had issued a ruling requiring Apple to make changes to allow for alternative purchase mechanisms for dating apps. Feb. 2025 Tr. 1325:6–19 (Onak). Apple's work in response to the NACM's ruling was referred to as “ [redacted].” See CX-268.1; CX-281.5; Feb. 2025 Tr. 1357:24–1358:9 (Onak). Similarly, Apple was developing language for screens presented to users linking out for reader apps, in response to a Japanese Fair Trade Commission investigation. Feb. 2025 Tr. 1326:2–10 (Onak). Apple's work in response to the Japanese FTC's investigation was referred to as “[redacted] .” See CX-281.5; Feb. 2025 Tr. 1357:24–1358:9 (Onak).

[42]

The final version adds an additional sentence absent from the June 28, 2023 version in small font: “Apple can't verify any pricing or promotions offered by the developer.” (CX-3.5.)

[43]

That said, as Mr. Schiller explained, users can use Apple's key chain or password management tool so that the user automatically fills in their credentials and “[e]very subsequent visit [the site] will remember that and you will be logged in,” as long as a user utilizes those tools. (May 2024 Tr. 813:17–814:9 (Schiller).)

[44]

Chatter among Apple's UX design team reveals agreement. As one employee said, “i think personally that is why i wouldnt bother”—“more steps, have to find my card, type it all out. and then giving another company my details.” (CX-206.4.)

[45]

As Mr. Simon explained, after clicking a static URL, users may “log in or create an account with a different email address, which happens more often than you might think, in which case they would purchase for the wrong account, return to their mobile app, not have access, and usually that leads to them reaching out to our customer support.” May 2024 Tr. 955:3–8 (Simon).

[46]

See also May 2024 Tr. 958:3–5 (Simon) (“Web browsing also, every web page has dynamic URLs on it. So I think all of the Internet would sort of have to be a security risk for dynamic URLs to be a security risk.”).

[47]

Before this Court required that the June 1, 2023 presentation be produced, Mr. Schiller testified that “we didn't consider ... that developer would want to not include a link with their call to action .... It just hadn't crossed our mind that somebody would want that.” (Tr. 1309:21–1310:2 (Schiller); see also id. at 1882:24–1883:2.) He qualified that “of course that's something we'd be happy to consider.” (Tr. 1309:25–1310:1 (Schiller).) When shown the presentation, Mr. Schiller acknowledged that the presentation, albeit in an appendix, does discuss in-app text communication without a link and without commission, although he still did not recall the discussion. (Tr. 1890:13–20 (Schiller).)

[48]

Compare CX-224.30 (revenue impact with “[l]ink-out billings not eligible for program discounts”) with id. at CX-224.33 (revenue impact where “[l]ink-out billings are eligible for program discounts). On their face, the revenue difference is minimal. However, Mr. Schiller agreed that because the revenue impact projections for link-out billings where program discounts are ineligible factors in a 30% collection risk, on an “apples-to-apples comparison” of the two slides, the projected revenue loss is actually much larger. Feb. 2025 Tr. 1220:16–1221:7 (Schiller).

[49]

Epic also emphasizes Apple witness testimony acknowledging that even though the Injunction applies to all developers, they made the deliberate decision to exclude participation in VPP and NPP from participation in the Link Entitlement. See, e.g., May 2024 Tr. 488:23–489:22 (Oliver). While VPP and NPP developers lose program benefits if they choose to utilize external links, they are ultimately subject to the same restrictions as any other developer selling digital products. To be sure, this loss of program benefits highlights Apple's clear design to forbid competitive alternatives to IAP, but this does not mean that Apple has carved out a class of developers from their compliance program. Viewed from any angle, Apple's first priority was to protect its bottom line.

[50]

As of the May 2024 hearings, Mr. Oliver testified that he had no discussions with any large developers about using the Link Entitlement. (May 2024 Tr. 499:22–25 (Oliver).)

[51]

Apple also references Rule 60(b)(6), which permits a court to relieve a party from a final judgment for “any other reason that justifies relief.” Rule 60(b)(6) is “used sparingly as an equitable remedy to prevent manifest injustice” and is used “only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (citations omitted).

[52]

See also Beverage, 320 Cal.Rptr.3d at 438 (“[A] manufacturer's announcement of a resale price policy and its refusal to deal with the dealers who do not comply coupled with the dealers' voluntary acquiescence in the policy does not constitute an implied agreement or an unlawful combination as a matter of law.” (quoting Chavez, 113 Cal.Rptr.2d at 182.))

[53]

Apple continued, explaining that “[i]n the Court of Appeal, plaintiffs conceded that the Chavez decision would bar their ‘unfair’ claim under the UCL. Plaintiffs urged the Court of Appeal to disagree with Chavez and adopt a different rule. In declining to do so, that court relied on settled principles and emphasized the ‘narrow’ nature of its holding, stressing that its ‘decision is limited to’ situations ‘where the same conduct found immune from antitrust liability by the Colgate doctrine is also alleged to violate the “unfair” prong of the UCL.’ ” Apple's Answer to Petition at 7.

[54]

The Ninth Circuit in fact acknowledged that in Chavez, “the Colgate doctrine—that it is lawful for a company to unilaterally announce the terms on which it will deal—precluded a UCL action.” Epic Games, Inc., 67 F.4th at 1001. However, the Ninth Circuit explained that “[n]either Apple nor any of its amici cite a single case in which a court has held that, when a federal antitrust claim suffers from a proof deficiency, rather than a categorical legal bar, the conduct underlying the antitrust claim cannot be deemed unfair pursuant to the UCL.” Id.

[55]

The parties also use Apple's Rule 60(b) motion to dive into the merits of Colgate's applicability. For example, Epic appears to suggest that Colgate may not apply because the Ninth Circuit's decision—issued after the Beverage trial court's decision—concluded that Apple's agreements with developers constituted bilateral contracts rather than unilateral conduct for the purposes of Epic's Sherman Act Section 1 claims. (See Dkt. No. 1049, Epic's Opp. at 16 n.4.) Regardless, for the reasons stated above, this Court declines the invitation to revisit those merits where Beverage made no change to settled California law.

[56]

By contrast, both this Court and the Ninth Circuit developed and evaluated a trial record that involved both state and federal antitrust claims not implicated in Beverage.

[57]

See also Dkt. No. 1018, Apple's Mot. to Set Aside at 13 (“Epic had the burden of proving that (1) third-party developers would imminently react to a change in Apple's policies by steering iOS users to the Epic Games Store as a place for purchasing in-app digital goods or services; (2) such steering by third-party developers would imminently cause their customers to make purchases on the Epic Games Store through external links; and (3) enjoining Apple's restrictions on such steering would imminently cause an indirect increase in Epic's profits.”).

[58]

See, e.g., Dkt. No. 1018, Apple's Mtn. to Set Aside at 14 (“To be sure, Judge Smith's concurrence in the order staying the mandate stated that record is ‘filled with support’ for Epic's standing to enjoin Apple's conduct towards third-party developers.”).

[59]

Apple advanced the same argument in substance when seeking a stay of the injunction pending filing of a writ of certiorari. See Epic Games, Inc., 73 F.4th at 788 (Smith, J., concurring) (“Apple contends that the district court's injunction impermissibly allowed Epic's suit to proceed as a ‘de facto’ class action in which Epic obtained nationwide injunctive ‘relief on behalf of others.’ ... Like its standing argument, this argument overlooks aspects of the panel opinion's analysis that are inconvenient to its position and is incorrect. As the opinion explained, it was Epic's role as a competing games distributor—not its role as a parent company—that justified application of the injunction beyond just Epic's subsidiaries.”).

[60]

Apple's other contentions with respect to Murthy lack merit. For instance, Apple's argument focuses on Murthy's language that courts are “reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Murthy, 603 U.S. at 57 (quoting Clapper, 568 U.S. at 413). However, Epic's injury does not depend on third-party decisionmakers, but Apple's anti-steering provisions. Apple also argues that the Murthy court engaged in a detailed, plaintiff-by-plaintiff analysis of injury, and the Ninth Circuit's “two short sentences” of analysis are insufficiently specific under Murthy. Dkt. No. 1018 at 12–13. For one, Murthy did not alter the standard of review applicable in this case. Regardless, as Judge Smith wrote in his concurrence on the order to stay, the record is “filled with support for the common-sense proposition that Epic is harmed as a competing games distributor.” Epic Games, Inc., 73 F.4th at 786. That the panel's analysis is concise does not reduce the support in the record.

[61]

“Substantial compliance with the court order is a defense to civil contempt,” and “a person should not be held in contempt if his action appears to be based on a good faith and reasonable interpretation of the court's order.” Id. (cleaned up); but see In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993) (“The contempt ‘need not be willful,’ and there is no good faith exception to the requirement of obedience to a court order.” (quoting In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987))).

[62]

See also Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995) (The “injunction must be clear enough on its face to give ... notice that the behavior is forbidden.”); cf. Reno Air Racing Ass'n., Inc. v. McCord, 452 F.3d 1126, 1134 (9th Cir. 2006) (“The recipient of a TRO, which usually takes effect immediately, should not be left guessing as to what conduct is enjoined.”).

[63]

Apple also points to Rule 65(d), which provides that “[e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d). For the reasons stated above and in the Court's 180-page Injunction, Apple received a more than fulsome notice of what specific conduct was prohibited at law.

[64]

The amici agree. (See, e.g., Dkt. No. 904-1 at 14 (“[D]evelopers incur additional costs for transactions outside of their apps that would exceed the 3% ‘discount’ to Apple's normal IAP commission in almost every case. For example, payment processing fees alone often exceed 3% of the amount of the transaction.”).)

[65]

Apple emphasizes that California courts have declined to use the UCL as a ratemaking tool. (Dkt. No. 1324 at 30); see, e.g., Lazzareschi Inv. Co. v. San Francisco Fed. Sav. & Loan Assn., 99 Cal.Rptr.417, 422 (Cal. Ct. App. 1971) (“[T]he control of charges, if it be desirable, is better accomplished by statute or by regulation authorized by statute than by ad hoc decisions of the courts.”). Apple also argues that the question of whether Apple's commission appropriately reflects the value of its intellectual property is not an issue for injunction compliance, and that it is legitimate for a business to promote the value of its corporation for stockholders. (Dkt. No. 1324 at 18, 32.) Apple misses the point. The issue is that Apple flouted the Court's order by designing a top-down anticompetitive system, in which its commission played a fundamental role.

For the same reasons, the Court disagrees that requiring Apple to set a commission of zero constitutes and unconstitutional taking. See Dkt. No. 1324 at 30 (citing Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021)). For instance, as described infra Section IV, in the trademark context, “a party who has once infringed is allowed less leniency for purposes of injunction enforcement than an innocent party.” Forever 21, Inc. v. Ultimate Offprice, Inc., 2013 WL 4718366, at *3 (C.D. Cal. Sept. 3, 2013). Apple does not have an absolute right to the intellectual property that it wields as a shield to competition without adequate justification of its value. Apple was provided with an opportunity to value that intellectual property and chose not to do so.

[66]

Apple also points to authority that interprets the distinction between “regulating” and “prohibiting,” particularly in the context of statutory interpretation. Dkt. No. 1324 at 17; see, e.g., Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685, 697 (2022) (explaining that “to regulate something is usually understood to mean to fix the time, amount, degree, or rate of an activity according to rules” whereas “to prohibit something means to forbid, prevent, or effectively stop it, or make it impossible” (cleaned up)). In this way, Apple argues that its rules regulate and do not prohibit the use of calls to action or buttons. Other options may have constituted regulation. Here, the business documents prove the opposite: the overall effect is quite literally, intentional de facto prohibition.

[67]

Additionally, Apple has excluded simultaneous participation in the VPP or NPP programs and the Link Entitlement program. While this mutual exclusion does not itself constitute a violation of the Injunction, it does highlight Apple's all-or-nothing approach—every developer would be subject to the same link-out program which, as discussed exhaustively, is not economically viable.

[68]

The Court will decide in a separate order Apple and Epic's rolling motions for relief for relief from non-dispositive orders issued by Judge Hixson involving his and the special masters' determinations of privilege in Apple's document productions. (Dkt. Nos. 1193, 1221, 1285, 1298, and 1305).

[69]

The DPLA, as well as the Ninth Circuit's opinion, make clear that Apple is entitled to all “losses ..., expenses and costs, including without limitation, attorneys' fees and court costs,” “arising from or related to” Epic's “breach of any certification, covenant, [or] obligation” in the DPLA. PX-2619.40.

[70]

“Epic Games alleges that Apple's counterclaims are barred because ‘the contracts on which Apple's counterclaims are based’ are ‘illegal and unenforceable’ on the basis that they violate the Sherman Act, the Cartwright Act, and the UCL.” Epic Games, 559 F.Supp.3d at 1060.

[71]

The Court disagrees with Epic that its antitrust claims cannot be said to arise out of or relate to a breach of the DPLA “because they are completely independent of Epic's violation of the terms of the DPLA,” and that “[i]t is undisputed that Epic's antitrust claims could have been brought against Apple even if Epic had not violated the terms of the DPLA.” Dkt. No. 886 at 13. While perhaps true in theory, neither contention reflects what has in fact occurred in this litigation. Epic crafted a litigation strategy that involved a deliberate and conceded breach of the DPLA, and in turn Epic made its own antitrust claims the cornerstone defense against Apple's breach of contract counterclaim. Nor was Epic's breach without its benefits—some of the data revealed by that breach has been incorporated into this order in support of Epic's motion for enforcement. Epic's strategy involved certain risks and payoffs, and potential liability for Apple's attorneys' fees formed a possible trade-off.

[72]

See also Byram, 374 F.2d at 651 (“We hold that in the absence of specific legislative authorization attorneys' fees may not be awarded to defendants in private anti-trust litigation. Our conclusion is based on policy considerations reflected in the Clayton Act.”).

[73]

That said, Epic overreaches by seeking to apply Carver's rule to all federal antitrust claims, in particular here Epic's Sherman Act claims. While Dominick provides support for Epic's argument, this Court will defer to the Ninth Circuit's unpublished holding in Reudy and find that the fee-shifting rules articulated in Carver or otherwise do not displace Apple's contractual indemnity for attorneys' fees expended in defense of Epic's illegality defense under the Sherman Act.

[74]

The Court notes that the parties' prior representations, as always, are relevant. For instance, at trial Epic argued that “even if its claims under the Sherman Act fail, it is nevertheless entitled to relief on its Cartwright Act claims because the Cartwright Act is broader in range and deeper in reach than the Sherman Act.” Epic Games, Inc., 559 F.Supp.3d at 1048. Apple disagreed, arguing that Epic had “not identified any specific and material differences between the Cartwright Act and the Sherman Act,” and so could not “prevail on a Cartwright Act where its claims fail under the Sherman Act.” Id.

Given the lack of an appropriate accounting, the Court takes no position on whether Apple can include attorneys' fees which may have overlapped with the related Cameron and Pepper actions. (Dkt. No. 886 at 16.)

[75]

The Court pre-authorizes the “dialogue” version of Apple's screen in advance so as not to hinder developer progress:

CX-520.39 (middle example); see Feb. 2025 Tr. 1333:25–1334:17, 1335:10–16 (Onak).

[76]

Corporations have due process rights with respect to criminal sanctions. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770 (9th Cir. 1983)

[77]

This terminates Dkt. Nos. 876, 897, 1018, 1198, and 1328. All material redacted in this Order is sealed. If not redacted, the request to do so is denied. All exhibits admitted during the evidentiary hearing shall be filed on the docket within five business days.