Epic v. Apple: The Ninth Circuit Weighs In

Key Takeaways

• The U.S. Court of Appeals for the Ninth Circuit affirmed most of the district court's restrictions on Apple's policies related to linked-out purchases, but it allowed Apple to charge a commission based on actual costs and to impose minor restrictions on the design and placement of links.
• The Ninth Circuit affirmed the district court’s finding that Apple had willfully violated the injunction and over-withheld documents for privilege.
• The case has been remanded to the district court to determine the appropriate commission, but it appears it will be significantly lower than the previous 27%.

To ensure its ability to collect a commission, Apple’s rules have historically prohibited app developers from including links that would facilitate customers leaving the app to make a purchase elsewhere. This practice was challenged by Fortnite developer Epic Games, culminating in the Epic v. Apple trial in the U.S. District Court for the Northern District of California. In September 2021, the court issued its judgment, holding Apple’s restrictions were an unfair business practice in violation of California law and issuing an injunction prohibiting Apple from enforcing these rules. In April 2025, the Northern District of California found Apple had willfully violated its earlier injunction. In a biting opinion, Judge Yvonne Gonzalez Rogers found Apple had systematically erected barriers that all but ensured neither developers nor consumers would utilize these links. To remedy this action, the court entered a sanctions order, immediately and permanently enjoining Apple from: 

• Imposing any commission or fee on purchases that consumers make outside an app
• Imposing conditions on the design or placement of links facilitating off-app purchases
• Prohibiting or limiting the use of buttons or other calls to action
• Excluding certain categories of apps and developers from utilizing links for off-app purchases
• Using anything other than a neutral message apprising users that they are going to a third-party site
• Restricting dynamic links

The court further found Apple in civil contempt for abuse of attorney-client privilege designations and referred Apple and one of its senior executives to the U.S. Attorney’s Office for potential criminal sanctions related to perjury. 

Apple immediately appealed the decision, arguing that the court’s sanctions order:

• Went well beyond the scope of its initial injunction
• Improperly overturned Apple’s privilege assertions and relied on privileged materials in its findings
• Abused its discretion in finding Apple in contempt
• Did not have the authority to impose a nationwide injunction under recent U.S. Supreme Court precedent

The Ninth Circuit Weighs In

On December 11, 2025, the Ninth Circuit largely upheld the sanctions order but narrowed a few of the district court’s limitations on Apple. Specifically, the court of appeals held:

• Most of the district court’s restrictions were valid and reasonable, but a few were overbroad:
  • Apple may charge a commission for linked-out purchases, but the amount is limited to costs that are “genuinely and reasonably necessary” to coordinate the external hand-off, “and no more.”
  • Apple may require developers to display prompts for in-app purchases as prominently as those promoting linked-out purchases.
• The district court properly rejected Apple’s privilege assertions.
• The district court did not abuse its discretion in finding Apple in contempt.
• The district court’s order did not conflict with the Supreme Court’s limitation on nationwide injunctions.

Apple’s Policies Remain Curtailed

The district court’s April 2025 sanctions order largely focused on the restrictive policies Apple put in place following the court’s initial September 2021 injunction. The district court found that, when implementing policies to comply with the injunction, Apple consistently chose “the most anticompetitive option.” The court found that Apple intentionally dissuaded consumers from leaving the Apple platform, increased purchase friction, and created financial incentives that would dissuade developers from utilizing linked-out purchases. To remedy Apple’s willful violation, the sanctions order removed Apple’s new restrictions, and the Ninth Circuit has allowed most of the sanctions order to stand.

Apple may take a commission. Following the initial injunction, Apple imposed a 27% commission on any purchase made by a consumer within seven days of using an in-app link. The district court found that this commission was designed to make linked-out purchases “economically non-viable” for developers, and the sanctions order prohibited Apple from charging any commission for purchases made outside Apple’s platform. The Ninth Circuit upheld the district court’s finding that Apple’s commission violated the injunction but concluded that prohibiting Apple from collecting any commission whatsoever was “more like a punitive criminal contempt sanction than a civil contempt sanction or modification of the injunction.” The Ninth Circuit held that Apple may charge a commission “based on the costs that are genuinely and reasonably necessary for its coordination of external links for linked-out purchases, but no more,” and remanded the issue to the district court. Essentially, this allows Apple to recover only its actual costs in handing off the transaction and eliminates the significant profits that Apple has been earning from purchases originating from iPhone apps. The ruling identifies several factors the district court could consider in calculating this amount: 

• Apple is entitled to some compensation for its IP, but most of the IP used for linked-out purchases is already used to facilitate in-app purchases.
• Apple should receive no compensation for the security and privacy features offered to external links.

Importantly, Apple may not charge any commission until the district court has approved the rate. As such, the status quo in which Apple is not permitted to charge any commission for off-app purchases remains in effect until such determination.

Apple may impose minor link restrictions. The district court forbade Apple from placing any restrictions on the links used by developers. While the Ninth Circuit agreed Apple’s previous restrictions violated the injunction, it held that not allowing Apple to place any restrictions on third party developers’ link design could allow them to bury Apple’s own purchase option and “trample Apple’s right to offer [in-app purchases] entirely.” The court modified the injunction to allow Apple to bar a developer from “placing its buttons, links, or other calls to action in more prominent fonts, larger sizes, larger quantities, and more prominent places than Apple.” Apple may also prohibit language that violates its general content standards, such as offensive or obscene language.

Apple may exclude certain developers (for now). The district court held that Apple could not exclude third-party developers that participated in programs charging them a lower commission from utilizing linked-out purchases. In other words, Apple could not put developers to a Hobson’s choice of losing the benefits of these programs if they chose to utilize external links. The Ninth Circuit overturned this restriction, finding the evidentiary record insufficient on this issue. Apple’s victory on this point, however, may be short-lived, as the Ninth Circuit held that the order “may be cured” if the district court finds the restriction violated the injunction or removing the restriction is necessary to give life to the injunction.

The District Court Reasonably Rejected Apple’s Privilege Claims 

In the April 2025 opinion, the district court rejected Apple’s privilege assertions, finding that Apple had significantly over-withheld normal-course business documents. Apple’s aggressive privilege assertions and privilege errors that only “flow[ed] in one direction” were central to the court’s contempt finding. Some of these documents also illuminated Apple’s internal decision making and were instrumental in the court’s findings of malfeasance.

On appeal, Apple argued that the district court erred in finding its privilege assertions improper and that the district court should not have relied on those communications in reaching its findings of contempt. The Ninth Circuit agreed with the district court’s rulings, concluding that “Apple has not presented a close privilege call.” In discussing one document, for example, the court concluded that the document “consisted of classic business advice regarding business risks.”

The District Court’s Findings of Bad Faith and Contempt Were Affirmed

Apple challenged the contempt finding, arguing that whether it acted in bad faith was immaterial but, regardless, it had not acted in bad faith. The Ninth Circuit was unpersuaded. The Ninth Circuit considered Apple’s bad faith relevant because “even assuming that Apple’s interpretation of the Injunction is reasonable (it is not), evidence of Apple’s bad faith negates a good-faith defense.” The Ninth Circuit cited three key findings supporting contempt:

1. Apple attempted to mislead the district court with “pretextual” justifications in its notice of compliance and at the evidentiary hearing.
2. “[A]t every step Apple considered whether its actions would comply, and at every step Apple chose to maintain its anticompetitive revenue stream over compliance.”
3. Apple’s reliance on a consultant report to justify its commission “was entirely manufactured” and “a sham.”

The Ninth Circuit also concluded that the district court properly found contempt on a second, independent basis—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.” The ruling did not address the district court’s referral of Apple and its senior executive for criminal sanctions.

The Nationwide Injunction: A Boon for Third Party Developers

Apple also sought to overturn the district court’s injunction by arguing it conflicted with recent Supreme Court precedent, specifically Trump v. CASA, which limited courts’ ability to impose nationwide injunctions. The Ninth Circuit rejected this argument, holding that CASA has no bearing on equitable relief under the antitrust laws and “the scope of a permanent injunction following a finding of antitrust liability is hardly comparable to that of a preliminary injunction on a constitutional question.” 

This is a significant holding for third-party developers. Many commentators questioned whether CASA would allow Apple to continue to charge its traditionally high commissions to everyone except Epic or undermine other developers’ ability to challenge Apple’s restrictions they believed conflicted with the injunction. Had third-party developers faced that limitation, they would have had to engage in costly and time-consuming novel litigation against Apple to obtain relief. Now developers may benefit from the district court’s order.

Conclusion

Even though the district court’s order was slightly pared back, this opinion kept the sanctions order largely in place. Many commentators believed the district court’s order was influenced by its reaction to Apple’s litigation conduct and the Ninth Circuit was likely to narrow it significantly—but that did not happen. Almost all of Apple’s post-injunction policies remain enjoined, Apple’s 27% commission will not be reinstated, Apple will not be permitted to profit from off-app purchases, and the order continues to extend to Apple’s conduct with regard to all developers, not just Epic. Apple has informed the court that it intends to file a Petition for Rehearing En Banc in the Ninth Circuit. 

If you have any questions or believe your company is facing restrictions by Apple that may conflict with this order, please contact Perkins Coie’s experienced antitrust team, which would be happy to answer any question you may have.