I’ve read enough case law to notice when jabs are made between the lines, but it’s not always clear what the desired alternative is by the writer.
In this case the repeated mentioning by the appellate court that the district court brought up an alternative scenario of… well exactly this, that developers use alternative payment methods and that Apple would have to audit them, only for the district court to brush it aside because it’s too complicated, conveys an annoyance.
These alternative options were brought up by the district court on their own initiative. Normally courts only consider what parties bring up in arguments, but it’s not disallowed or anything for a court to come up with their own suggestions.
I think the appellate court didn’t like the fact that the district court brought it up on her own and that it added a bit of complexity as a result.
The real issue or weirdness if you will, is that 99% of the case that is based on federal laws says that everything is kosher on Apple’s side, it’s only the California statute that bans anti-steering and in doing so, creates a bit of a schizophrenic outcome in which anti-steering isn’t allowed (the California part) but commission is still owed because all the rest is fine (federal law).
Here are some quick examples from the appellate judgment of what I’m talking about in terms of the appellate court’s annoyance:
> On its own initiative, the district court floated the idea of Apple permitting multiple in-app payment processors while reserving a right to audit developers to ensure compliance with the 30% commission. But it quickly rejected that as an alternative because it "would seemingly impose both increased monetary and time costs."
> Apart from any argument by Epic, the district court "presume[d]" that Apple could "utilize[e] a contractual right to audit developers... to ensure compliance with its commissions. But the court then rejected such audits as an LRA because they "would seemingly impose both increased monetary and time costs."
Quick translation: LRA = less restrictive alternative.
It’s pretty common terminology in antitrust cases, when one party complains about the other party’s actions but those acts are argued to be legitimate or necessary (e.g., we have App Review for safety reasons) the complaining party tries to counter that by offering up an LRA (e.g., well they can ensure safety by doing X, Y or Z instead and it would be less restrictive to us).
Here the district court recognized that IAP are a legitimate way of collecting the commission that due for using Apple’s IP, but instead of Epic bringing up an LRA to collect the commission, it was the district court that brought it up.
I think that annoyed the appellate court because it highlighted the cumbersome outcome.
