sarah jeongVerified account

Forrest speaking for Epic, points to SCOTUS cases saying that unclean hands are not a defense in an antitrust case. Judge Yvonne Gonzalez Rogers asks if these cases were briefed. They were not.

Forrest says there was no opportunity with the speed of the TRO proceeding to brief on these cases. YGR is unhappy. "You brought this affirmatively." "They are well-known anti-trust cases," says Forrest.

YGR is unimpressed and says she "does not expect surprises" when it comes to firms like Cravath and Gibson. Doren says he's not prepared to address these specific cases. Forrest reiterates that the SCOTUS cases are binding but moves forward.

Forrest: "We are already getting the kind of customer complaints that goes to the irreparable harm to our reputation"

YGR: All you have to do is take out the [hotfix] and return to the status quo, and then we can have our trial date in April. So far I haven't heard anything that they can't flip the switch to the way it was to August 3 and return everybody to the way they were.

Forrest: "We are getting consumer complaints every day that people are quitting." Adds that they have no control over payments made over Apple's own payment system, and that customers are asking them for refunds they cannot make.

YGR: What's happening with Google? Forrest: We have sued Google as well.... things are slightly different in the Android environment, but we have also sued Google for anticompetitive acts.

Richard Doren for Apple: "We agree with your honor," ah, what a wonderful place for counsel to be

Doren: Your honor is completely right that this was a willful breach by Epic, it was strategic in nature, it was positioned so Epic could profit from its breach while this litigation proceeds, and this court should not bless a breach so that Epic can profit by its wrongdoing.

Doren: ... They should go back to the status quo, they should litigate this case on the merits, and we believe Apple's model will be proven just and competitive this coming spring.

Forrest says hotfixes are neither novel nor nefarious, despite how Apple characterizes it. YGR: Epic Games didn't tell Apple that you had code in there that would allow you to collect directly from your consumers, right?

Forrest: We'd never hide it. There are lines and lines of — YGR: I get to interrupt. That's my privilege

Forrest: What happened here was that we ceased to comply with an anticompetitive provision. It was with code that was resident in the build for several weeks proceeding.

"Did we understand what we were doing? Yes, we did." Forrest says they geared up for a fight because they knew it was "the only way to break the chokehold that Apple has on its payment system and the prohibition it has on competition."

YGR notes the harms claimed to consumers and then asks, "Where is the harm to Epic?" Forrest: We are not seeking monetary damages... we do not believe monetary damages make us whole.

Forrest says that the customer complaints / reputational harms are cognizable, irreparable harm (prereq for a TRO)

Forrest: We don't have to have a complete decimation of our business so that — YGR: *interrupts* It's not a decimation. Then gives floor to Apple lol

YGR says that if Apple is right in this case, "Epic just owes you money ... You don't have to take the step of removing access."

Doren says that Epic sought "to break that model, to profit by it, and to have customers caught in the crossfire." Says that this was all an anti-Apple campaign referencing the 1984 ad etc. YGR interrupts with, "Yes. I know."

YGR: "With respect to Unreal Engine, that seems like an overreach." Says that the contract with Epic International is not in breach, even if the contract with Epic Games is. Says that it looks retaliatory to her.

Doren: Epic Games International S.a.r.l. is Epic Games, it's Unreal Engine... YGR: I thought I read that they were two separate companies. Are they — Doren: There is an Epic SARL entity, and it has an account with Apple, as does Epic Games.

(SARL entity = an international corporate entity; so this is a separate corporation but Apple thinks this is a shell corp and wants these two corporations treated as the same).

YGR: I don't know if this is a shell corporation. I don't know if there is going to be piercing of the corporate veil. But I know there are two separate contracts. ... and two separate fees

To paraphrase, Apple's case re: Unreal Engine is that Epic is sockpuppeting, Epic's case is that Unreal Engine is from a completely different dev account and this is retaliation for Epic did with Fortnite.

Doren says that Epic's conduct "would spread like a virus" if Apple is forced to maintain Unreal Engine.

Veronica Lewis of Gibson Dunn attempts to chime in, and gets very firmly admonished by YGR for "tag teaming."

Forrest: We're not saying SARL is not affiliated with Epic Games. What we're saying is they've reached out beyond the contracts and the accounts..... where the in-app purchasing conflict occurred. ... These are independent contracts. This is purely a pressure tactic.

Forrest on what happens without a TRO: "The Unreal Engine will be destroyed... app developers need the ability for their app to be deployed on multiple platforms."

Forrest: "If Epic cannot offer that with the Unreal Engine, the Unreal Engine will cease to exist. ... Developers are fleeing the Unreal Engine now."

Forrest was talking public interest factors about Unreal Engine and then managed to get YGR to let her slide in sideways and talk about the public interest with respect to Fortnite. "Their social groups are going to be unable to communicate with each other," she says.