Apple appears poised, once again, to seek Supreme Court review in its long-running dispute with Epic Games.
Last week, the Ninth Circuit granted Apple a temporary reprieve from the Northern District of California’s scathing April 2025 order enforcing compliance with its 2021 injunction.
While the Ninth Circuit largely affirmed the District Court’s order back in December (as we previously discussed), last week, it agreed to pause remand to the District Court while Apple petitions the Supreme Court for review.
However, the Ninth Circuit granted Apple’s stay request before Epic had a chance to respond and may well reconsider its decision with the benefit of additional briefing.
In deciding whether to reconsider its order granting Apple’s stay request, the Ninth Circuit will weigh the likelihood of Supreme Court review. On the one hand, this high-profile dispute raises key questions about the scope of injunctive relief in antitrust and unfair competition cases. On the other hand, SCOTUS has already passed on this case once, and the current procedural posture is not necessarily conducive to further appellate review.
The Leadup to the Stay
The latest chapter in the Epic v. Apple saga began in December, when the Ninth Circuit largely affirmed the Northern District of California’s ruling that Apple violated the injunction issued in Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR (N.D. Cal.), and was therefore in contempt. Like the District Court, the Ninth Circuit took particular issue with Apple’s 27% commission on external purchases, characterizing it as prohibitively high.
On March 30, the Ninth Circuit reinforced its position, unanimously denying Apple’s petition for rehearing en banc.
Apple is now preparing to ask the Supreme Court to weigh in on the District Court’s contempt order, according to its April 3 motion to stay the Ninth Circuit’s mandate.
Apple argues that the Ninth Circuit’s restrictions on its ability to charge commissions for external purchases “would significantly impact [its] business model” and undermine “its ability to secure a reasonable return” on its investment in the App Store ecosystem.
Apple’s motion signals that it will reprise arguments the Ninth Circuit has already rejected. First, Apple contends that the District Court improperly relies on the “spirit” of the injunction rather than its text. Second, citing Trump v. CASA, 606 U.S. 831 (2025), Apple argues that the District Court injunction is overly broad because it extends relief to developers nationwide, rather than only to those likely to use the Epic Games Store.
Will the Ninth Circuit Reconsider?
On April 6, the Ninth Circuit granted Apple’s stay request in a brief order, delaying remand to the District Court to refine its contempt ruling, including the commission limitation, pending potential Supreme Court review.
The same day, Epic promptly moved for reconsideration and attached its opposition to Apple’s stay request.
The key question now is whether Epic’s motion for reconsideration is likely to succeed. There is a plausible argument that the Ninth Circuit could revisit its stay.
Epic’s filing persuasively highlights the practical consequences of the stay. The stay will further delay what Epic calls Apple’s “day of reckoning,” the point at which developers can meaningfully steer users to alternative payment systems without facing punitive fees.
Epic also proposes a narrower alternative—conditioning the stay on Apple’s filing a timely certiorari petition—that may appeal to the panel as a middle-ground solution.
Will SCOTUS Weigh In?
Whether the Ninth Circuit grants Epic’s motion for reconsideration or not, the Supreme Court may still decide to pass on this case.
As Epic argues, the Ninth Circuit has already instructed the District Court to redraw its contempt order, rendering SCOTUS intervention premature. The parties must still battle out the central issue of defining what constitutes a “prohibitively” high commission in the District Court.
Additionally, the legal issues Apple seeks to raise with the Supreme Court may be overstated. As the Ninth Circuit recognized, the District Court grounded its contempt order not just in the “spirit” of the injunction, but in its text. And the Supreme Court already declined to hear Apple’s challenges to the scope of the 2021 injunction when it denied certiorari in 2023.
For now, the litigation remains a slow-moving but high-stakes chess match. Apple continues to play for time and higher-court review, while Epic presses for immediate enforcement. Whether the Supreme Court ultimately steps in or once again stays on the sidelines may determine not just the outcome of this case, but the broader contours of how operators can (and cannot) monetize their ecosystems in the years ahead.
