A Summary Reversal in Apple v. Epic Games?
As the Supreme Court’s term rushes to an end, most of the attention from lawyers and scholars is on the remaining merits cases. But I want to highlight a cert petition in an important post-CASA case: Apple, Inc. v. Epic Games, Inc.
Two questions are teed up in the cert petition. The first is about whether the Ninth Circuit wrongly upheld contempt sanctions for Apple for violating the “spirit” of an injunction. The second is about whether the Ninth Circuit ignored Trump v. CASA, Inc. by affirming an injunction benefiting all app developers, not just the plaintiff, Epic Games.
On both questions, I’m inclined to think the Ninth Circuit got it wrong. But they are somewhat different in their suitability for review by the Supreme Court.
The first question is about contempt. The background is that Epic Games sued Apple to challenge its app store policies, including its fee structure. Apple won on most of the counts, but Epic Games won on its claim that it was anti-competitive for Apple to prohibit developers from linking from their apps to their own payment methods. The district court enjoined Apple from prohibiting links from a developer’s app to a developer’s own site; the injunction did not make any mention of commissions. Apple responded by allowing links but requiring developers to pay 27% of any revenue generated within seven days from a customer clicking on an outbound link.
In the district court, the contempt question boiled down to whether Apple’s 27% commission was a violation of the district court’s injunction against prohibiting links. The district court said yes—Apple was violating the injunction’s “spirit” though not its “letter”—and held Apple in contempt.
Last year, when the case was before the Ninth Circuit, Professors Andy Hessick and Michael Morley and I filed an amicus brief in support of neither party. The gist of our argument was that the district court was wrong to impose contempt sanctions on this violation of the “spirit” of the injunction, but that the court should have dealt with Apple’s response by modifying the injunction. The Ninth Circuit disagreed, and it affirmed the contempt sanctions.
Now I think the Ninth Circuit affirmance on this point was erroneous: instead of holding Apple in contempt, the district court should have modified the injunction so it referred to commissions and clarified what Apple could and could not do, and then that modified injunction could have supported contempt sanctions but only if, going forward, there was a violation of the modified injunction. And in addition to correcting an error below, a cert grant would ameliorate discrepancies in the circuit courts, because different circuits require different degrees of clarity in an injunction before its violation can be the basis for contempt sanctions.
Yet there are also some obstacles to a cert grant on the first question.
One is that there aren’t—and in my view shouldn’t be—a lot of overly crisp rules for interpreting injunctions. Injunctions don’t have the specialized body of interpretive rules that are characteristic of statutes, for example.1
It’s true that the district court’s overt reliance on the “spirit” of the injunction was an unforced error. But it’s not as though the right response is, like Bizarro Jerry, to do the opposite. Injunctions must provide notice of what is being prohibited, but to insist only on the “letter” of the injunction would be an overcorrection. For contempt is available when parties try to opportunistically subvert a court’s power to resolve a case and see it through, even when there is no “letter” at all.2
And the Ninth Circuit was correct to note the import of McComb v. Jacksonville Paper Co., which is that injunctions should not be read so narrowly and literally that an enjoined party can engage in a game of cat-and-mouse with the court, making the injunction useless. Maybe at bottom this is just a difference in views of the facts: is 27% equivalent to a total ban, as the Ninth Circuit seemed to think? Not obvious to me, though that’s a factual question about the industry and its economics that I’m not qualified to address.
In short, I think the Ninth Circuit erroneously affirmed the contempt sanctions (in line with the views expressed in the amicus brief with Professors Hessick and Morley). Yet a cert grant on the first question would steer pretty close to error-correction, and the error correction would tend to be limited to the instant case, since the area is not congenial to the pronouncement of crisp rules. So there are plausible arguments in both directions as to a cert grant on the first question.
On the second question presented, however, I think the Ninth Circuit error calls for a different response. The district court’s injunction ordered Apple not to prohibit developers from linking out from their apps to their own sites—an injunction by its terms benefitting all developers, not just the plaintiff, Epic Games. The scope of the district court’s injunction was certainly understandable, because it was issued before CASA rejected universal injunctions. But the Ninth Circuit decision came after CASA.
So how can the Ninth Circuit affirmance be squared with CASA? It can’t. The injunction at issue was a universal injunction—it went further than was needed for the protection of the plaintiff or plaintiff class. In fact, it gets worse. Some other app developers sued Apple on a similar theory but did so in a class action, and that class action settled.3 So that class of developers got the class settlement (in the suit they were in) and also got the full benefit of Epic’s injunction (in the suit they were not in). Perhaps one could argue that the injunction should reach non-party game developers who link out from their apps to Epic’s own game store—because that non-party scope would directly benefit Epic. But the injunction sweeps much more broadly and controls Apple’s relationship not just with all game developers everywhere, but with all app developers everywhere, regardless of whether there is any association with Epic or intertwined benefit.
And it is no help to say that CASA was a public law case. It was, but it relied heavily on Grupo Mexicano, which was a private law case. And CASA is a holding about the equity jurisdiction of the federal courts, traceable to the Judiciary Act of 1789, which is a unified jurisdiction applicable in public law and private law cases.
To distinguish CASA, in a single paragraph (46a-47a in the appendix to the cert petition), the Ninth Circuit offered several unpersuasive reasons:
First, the Ninth Circuit cited one of its own cases that distinguished CASA on the grounds that “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.” But CASA is not just about preliminary injunctions and not just about constitutional law. The Ninth Circuit’s offered distinction brings to mind Karl Llewellyn’s famous quip that a court could read an “unwelcome” precedent as holding only for “redheaded Walpoles in pale magenta Buick cars.”4
Second, the Ninth Circuit noted that CASA was not interpreting the Clayton Act. Correct, but beside the point. CASA was about the equitable jurisdiction of all federal courts in all kinds of cases. And while it is true that a statute may, within limits, alter the default equitable jurisdiction of the federal courts, Congress must speak clearly whenever it changes the traditional rules of equity.5 None of that analysis of congressional clear statement was done by the Ninth Circuit.
Third, the Ninth Circuit said the district court’s broad injunction was simply “complete relief . . . molded to the necessities of this particular case, which centers on anticompetitive conduct by Apple and aims to restore the information to consumers that is necessary to foster competition” (alterations and internal quotation marks omitted). But this argument from the Ninth Circuit has two problems. First, it ignores what CASA says about complete relief, including that it is a ceiling not a floor and that it is about complete relief to the plaintiff. Second, the Ninth Circuit’s description of the violation is about Apple and the world, and not about the actually litigated harm to the actual opposing litigant. Again, that description would be understandable if the Ninth Circuit decision had been written before CASA, but it was written after CASA.
And with those arguments, the Ninth Circuit panel concluded that “[t]he underlying Injunction is not an impermissible nationwide injunction” (47a).
I don’t see any way to square the Ninth Circuit’s decision with CASA. So to me, the second question presented looks like a straightforward case for summary reversal. Regardless of what happens on the first question presented, the Ninth Circuit should be required to reconsider the scope of the injunction in light of CASA.
My coauthors on the brief would take a different tack, and they have advanced their argument for textualism when interpreting injunctions in F. Andrew Hessick & Michael T. Morley, Interpreting Injunctions, 107 Va. L. Rev. 1059 (2021).
For example, there is precedent “for holding a litigant in contempt ‘for performing otherwise legal actions that frustrate the potential efficacy of future orders the court may enter.’” William Baude, Samuel L. Bray, & Marin K. Levy, Remedies for a Constitutional Crisis, 139 Harv. L. Rev. 1747, 1749 n.9 (2026) (quoting Michael T. Morley, Erroneous Injunctions, 71 Emory L. J. 1137, 1185 (2022), which collects some of the precedents, and citing Hugh B. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 101–03 (1948)).
The way to square these points might be to say that it is contempt to subvert the court’s power to resolve the case—as Will Baude and I put it, “abusing the legal process by going ahead and taking the irreversible action that will moot or radically alter the case [such as] selling the disputed pet, tearing down the disputed house, [or] exporting the disputed Vermeer,” William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 170 (2023)—even if there is no injunction, but that if the contempt is based on violation of a court order, the order must clearly prohibit the conduct at issue.
Here I’ll quote from the cert petition at p. 7:
In 2019, a putative class of iOS developers filed a separate lawsuit against Apple alleging that Apple’s distribution requirements and other requirements relating to IAP are anticompetitive. See Cameron v. Apple Inc., No. 19-cv-3074 (N.D. Cal.) (Cameron). That class action settled, with no change to the developer provisions mentioned above concerning steering users to alternative payment methods. See Cameron Order (June 10, 2022), Dkt. No. 491. After a hearing, a district court found the Cameron settlement fair and entitled to effect.
For discussion, see Brian Leiter, Realism about Precedent, in From a Realist Point of View 118-19 (2026).
See Samuel L. Bray, How Equity Changes, 2025 Sup. Ct. Rev. 83, 92 n.69 (2026): “On this interpretive assumption, see, e.g., Nken v. Holder, 556 U.S. 418, 433 (2009); United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 496 (2001); Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982); Bhd. of Locomotive Eng’rs v. Missouri-Kansas-Texas R. Co., 363 U.S. 528, 532 (1960); Kinney v. Pioneer Press, 881 F.2d 485, 490–91 (7th Cir. 1989) (Easterbrook, J.).”