Justice Elena Kagan on Wednesday morning turned down a request from tech giant Apple to intervene in the latest chapter of its long-running dispute with Epic Games, the maker of the popular videogame Fortnite. In a one-sentence email distributed to reporters by the court’s Public Information Office, the court indicated that Kagan – who fields, at least initially, emergency requests from the U.S. Court of Appeals for the 9th Circuit – had denied an application, filed by Apple on Monday, to pause a civil contempt order entered by a lower court against the company.
The dispute stems from an antitrust lawsuit that Epic Games filed against Apple, challenging Apple’s restrictions on purchases from its App Store. A federal judge ruled that Apple could not block developers from seeking to encourage their customers to buy games and other products from them on other app stores rather than through Apple’s App Store. The judge then found that Apple was in contempt of that order because (among other things) it put in place measures to make it more difficult for developers to encourage customers to go outside the App Store and imposed a large commission on purchases made through third-party systems after clicking on a link in the App Store.
Apple came to the Supreme Court on Monday, asking the justices to step in. “A stay is now needed before Apple is forced to litigate its commission rate under an erroneous and prejudicial contempt label—in proceedings that could reshape the global app market—before this Court can consider whether to grant review” and hear oral arguments in the appeal that Apple plans to file.
Epic Games, in response, urged the justices to stay out of the dispute. “Apple’s willful contempt,” it said, “has successfully delayed the restoration of competition by more than two years, allowing it to reap billions of dollars in what the Ninth Circuit previously affirmed were supracompetitive fees.”
Less than an hour after Epic’s opposition to Apple’s stay request was distributed to reporters, and before Apple had an opportunity to file a reply, Kagan denied Apple’s request without referring it to the full court – suggesting that it was not a close call.