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Epic Games has filed its brief with the Supreme Court, and the tone is scathing. The very first sentence reads: „Apple knew exactly what it was doing.“ In 48 pages, Epic paints a picture of a company that systematically circumvented a court order and then tried to cover it up.
On November 13, Epic Games' written submission was received in case number 25-1311. It is Epic's response to Apple's main submission from September. The court had set this date as the deadline in July.
The case concerns the infringement ruling from spring 2025. At that time, the Oakland District Court ruled that Apple had violated the App Store regulatory order by charging a 27 percent commission on purchases made through external links and by implementing new design requirements. The appeals court essentially upheld this ruling in December 2025. In June 2026, the Supreme Court accepted Apple's appeal, but only on the first of two issues.
The hearing will take place on January 11, 2027. With Epic's written submission, the positions of both parties are now available.
Key Takeaways
- Epic Games is demanding that the Supreme Court uphold the contempt of court ruling against Apple.
- Epic considers Apple's legal standard to be „extreme“: An injunction does not have to prohibit every form of circumvention individually.
- Epic relies on the factual findings of the lower courts, including Apple's choice of the 27 percent rate, a report deemed a sham expert opinion, and a false statement under oath.
- Alternatively, Epic requests that the case be referred back to the lower courts if the court redefines the standard.
- Apple's response is due by December 14, according to the parties' schedule, with the hearing following on January 11.
What the court actually decides
Apple poses the question as follows: Can a court convict a party for contempt of court because they violated the „spirit“ of an injunction, even though the injunction doesn't mention the specific conduct? From Apple's perspective, an injunction must explicitly name the prohibited conduct.
Epic phrases the question differently. The decisive factor, they argue, is whether a reasonable person would understand the order, in light of its context and purpose, to prohibit the conduct, particularly if a party seeks to circumvent the order by other means. Epic cites a 1949 Supreme Court decision in McComb v. Jacksonville Paper and the 2019 standard established by Taggart v. Lorenzen: contempt exists when there is no reasonable doubt that the conduct violates the order.
The core of Epic's counter-argument is summarized in a sentence from the introduction:
Apple attempts to avoid contempt by proposing an extreme legal standard.
According to Epic, Apple's interpretation amounts to the argument that the ban on the then-current anti-steering rules gave the company free rein to introduce new rules with the same effect. Court injunctions would thus become a „never-ending game of cat and mouse.“.
27 percent, seven days and five design rules
A significant portion of the report details what Apple did after the 2021 ruling. For the first time, Apple charged a commission on purchases made outside the app, i.e., on the web. A standard commission of 27 percent was charged on every purchase made within seven days of clicking a link, even if the purchase was made independently of the link.
If you include the developers' own payment processing costs, which according to the written submission amount to more than 3 percent, the purchase via the link became more expensive than the in-app purchase at 30 percent. Epic quotes a statement from the proceedings in which an Apple manager admitted exactly that:
Every linked-out transaction is going to be more expensive to any developer … than an IAP transaction at 30 percent.
According to the appeals court, Apple could not name a single developer who had directed their customers to their own payment methods and paid the 27 percent commission. In addition, five design rules were applied: a button without a recognizable shape that was indistinguishable from a link, no dynamic links, only wording approved by Apple, no links in the purchase process, and a full-screen warning before leaving the app.
Epic supports its cover-up claim with three points from the district court's ruling. Apple had claimed legal correspondence protection for approximately 57,000 documents, but later lost or withdrew most of these claims. The court deemed a specially commissioned report used to justify the 27 percent commission a sham. Furthermore, the court found that Apple's Vice President of Finance „blatantly lied under oath“ at the time of the commission decision. The court referred the case to the U.S. Attorney's Office.
Where the US government stands
In September, the US government filed a brief supporting neither party and only partially backing Apple. Epic interprets this brief as largely confirming its own standard: the government, too, reads an order in light of its context and purpose and considers disregard possible if conduct renders the order ineffective.
| Point of contention | Apple | Epic | US government |
|---|---|---|---|
| Scale | Only expressly prohibited behavior | Understanding of a reasonable person, including circumvention | The order should be read in context; disregard can only be established without reasonable doubt. |
| 27 percent commission | No violation | violation | No disregard |
| Design rules | No violation | violation | Disregard at least by some |
| Application | Cancellation | Confirmation, or alternatively, referral back. | Partly overturned, partly confirmed, partly remanded |
On the crucial point of commissions, the government is thus on Apple's side: The wording of the order only prohibited Apple from forbidding developers from providing references and links to external purchase options, but not from charging a commission on such purchases. Epic counters that the government is not addressing the findings regarding Apple's knowledge and bad faith.
Response in December, trial in January
According to the schedule requested in July, Apple will submit its response by December 14th. This leaves 28 days until the hearing. The hearing on January 11th begins at 10:00 AM in Washington, D.C., which is 4:00 PM Central European Time. Apple v. Epic is the second case of the day.
Epic primarily requests that the finding of contempt be upheld. Should the court instead clarify the legal standard, it should remand the case to the lower courts so that they can apply the new standard to the facts.
Meanwhile, in Oakland, the legal proceedings regarding future commissions are ongoing. There, Apple proposed in August that it would generally charge a 15 percent commission on purchases made through external links in the US. Until a decision is reached, Apple is prohibited from charging a commission on such purchases in the US.
Why Apple's design rules are its weakest point
Even if the court follows Apple's strict standards, Apple still faces a problem. The appeals court found that two of the rules—the inconspicuous button and the prescribed wording—violated the very wording of the order, which explicitly prohibits Apple from banning buttons and external links. The US government also considers the disregard for at least some of these rules justified. I therefore expect the ruling to stand, at least on this point, and the dispute over the 27 percent will have a more open outcome.
For the App Store in Germany and Austria, Washington doesn't decide anything anyway. In the EU, separate terms have applied since October 1, under which purchases via external links incur 15 percent, or 10 percent at the reduced rate. Switzerland is not covered by these EU rules. The ruling will still be interesting, because it determines how far a company may take a requirement literally instead of following its purpose.
Is a company allowed to do anything that isn't explicitly prohibited by an order, or did Apple cross a line with its 27 percent profit margin that was clear even without an explicit prohibition? Let us know in the comments where you would draw the line.
