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`Paul J. Riehle (SBN 115199)
`paul.riehle@faegredrinker.com
`FAEGRE DRINKER BIDDLE & REATH
`LLP
`Four Embarcadero Center
`San Francisco, California 94111
`Telephone: (415) 591-7500
`Facsimile: (415) 591-7510
`
`Christine A. Varney (pro hac vice)
`cvarney@cravath.com
`Katherine B. Forrest (pro hac vice)
`kforrest@cravath.com
`Gary A. Bornstein (pro hac vice)
`gbornstein@cravath.com
`Yonatan Even (pro hac vice)
`yeven@cravath.com
`Lauren A. Moskowitz (pro hac vice)
`lmoskowitz@cravath.com
`M. Brent Byars (pro hac vice)
`mbyars@cravath.com
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`New York, New York 10019
`Telephone: (212) 474-1000
`Facsimile: (212) 474-3700
`
`Attorneys for Plaintiff and Counter-Defendant
`Epic Games, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`CASE NO. 4:20-cv-05640-YGR
`EPIC GAMES, INC.’S ANSWER TO
`APPLE INC.’S COUNTERCLAIMS
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`EPIC GAMES, INC.,
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`APPLE INC.,
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`APPLE INC.,
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`EPIC GAMES, INC.,
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`v.
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`v.
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` Plaintiff,
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` Defendant.
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`Counterclaimant,
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`Counter-Defendant.
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Case No. 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 106 Filed 09/29/20 Page 2 of 24
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`Counter-Defendant Epic Games, Inc. (“Epic”), by and through its undersigned counsel,
`hereby answers Apple Inc.’s (“Apple”) Counterclaims, filed on September 8, 2020 (Dkt. 66), and
`asserts affirmative and other defenses.
`PRELIMINARY STATEMENT
`On August 13, 2020, Epic provided Fortnite users on iOS with the choice of an
`alternative payment processing solution called Epic Direct Pay, which offered consumers lower prices
`and better customer service than Apple’s payment processor, IAP. Epic does not dispute that this
`competing payment solution was prohibited by contractual provisions that Apple has unlawfully forced
`on developers like Epic who sell in-app digital content, even though Apple allows numerous other app
`developers to use competing solutions. Epic also does not dispute that, if Apple’s contracts were
`lawful, all in-app purchases made by Fortnite users on iOS would be subject to Apple’s 30% tax, even
`though Apple has exempted numerous other developers from this tax. But Epic denies that its refusal
`to abide by Apple’s anti-competitive scheme was in any way wrongful. Epic looks forward to proving
`at trial that the agreements on which Apple bases its counterclaims are illegal and unenforceable.
`Apple has asserted repeatedly that “Epic’s lawsuit is nothing more than a basic
`disagreement over money”. This is not correct. Epic has not sought and will not seek money damages
`from Apple. Instead, Apple is now the party that has sued seeking payment from Epic on multiple
`different theories. Indeed, Apple’s counterclaims do more than merely seek to force Epic to pay
`Apple’s supra-competitive 30% tax on in-app purchases. Apple’s broad counterclaims are designed to
`punish Epic for its defiance and send a message to other developers who might dare rebel against
`Apple. Apple asserts meritless claims, such as “conversion”, that lack any basis in law or fact. These
`claims are designed to paint Epic as a bad actor—Apple hyperbolically describes Epic as a thief—for
`seeking to deal directly with Epic’s own customers, which Apple’s anti-competitive rules prohibit for
`the sale of in-app digital content. Apple also seeks “punitive damages” to punish Epic and further
`deter other app developers who might stand up to Apple’s oppressive and illegal conduct.
`To avoid any possible delay in the resolution of Epic’s antitrust claims against Apple,
`Epic answers and denies Apple’s legally deficient counterclaims herein. And because the ultimate
`resolution of this case should focus on Apple’s conduct and Apple’s anti-competitive restrictions, Epic
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Case No. 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 106 Filed 09/29/20 Page 3 of 24
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`will soon move the Court (pursuant to Federal Rule of Civil Procedure 12(c)) for judgment on Apple’s
`tort claims and on Apple’s claim based on the implied covenant of good faith and fair dealing, which
`fail as a matter of law.
`
`ANSWER
`Except as otherwise expressly set forth below, Epic denies each and every allegation
`contained in the Counterclaims, including, without limitation, headings, sub-headings, and footnotes
`contained in the Counterclaims. With respect to the footnotes, Epic denies the allegations contained in
`each, and, for those containing citations, refers to the content of the citations. Epic expressly reserves
`the right to amend and/or supplement its answer and defenses. For the avoidance of doubt, Epic is not
`responding to Apple’s Answer, nor to the introductory materials contained in the unnumbered
`paragraphs preceding Apple’s Answer.
`Epic states that the allegations in Paragraph 1 state a legal conclusion to which
`1.
`no response is required. To the extent a response is required, Epic denies the allegations in Paragraph
`1, except admits that there is diversity of citizenship between Epic and Apple, that the amount-in-
`controversy exceeds $75,000, and that Apple purports to invoke the jurisdiction of this Court pursuant
`to the statutes cited therein.
`Epic states that the allegations in Paragraph 2 state a legal conclusion to which
`2.
`no response is required. To the extent a response is required, Epic denies the allegations in Paragraph
`2, except admits that it filed a Complaint against Apple in this District, admits that Epic Games, Inc.
`entered into a standard, click-through Apple Developer Program License Agreement drafted by Apple
`(the “’84 License Agreement”), and refers to the ’84 License Agreement for its contents. By referring
`to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and unfair terms,
`Epic does not admit that any term in the Agreement is lawful and/or enforceable against Epic.1
`
`
`1 Apple’s counterclaims are based on the “Apple Developer Program License Agreement
`(‘License Agreement’) between the parties”—that is the ’84 License Agreement between Epic Games,
`Inc. and Apple Inc., which relates to the Apple Developer Program Account previously held by Epic
`Games, Inc. with a Team ID ending in ’84 (the “’84 Developer Account”). Apple further alleges that
`Epic Games, Inc. has entered into an Apple Developer Program Agreement relating to the ’84 account
`(the “’84 Developer Agreement”). Other entities that Apple has deemed to be affiliated with Epic
`Games, Inc. have executed separate Apple Developer Program Agreements and Developer Program
`License Agreements and maintain separate Apple Developer Program accounts. Epic Games, Inc.,
`other affiliated entities, and individual programmers also have entered into Xcode and Apple SDKs
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Epic states that the allegations in Paragraph 3 state a legal conclusion to which
`3.
`no response is required. To the extent a response is required, Epic denies the allegations in Paragraph
`3, except admits that it brought an action against Apple in this Court, admits that Epic Games, Inc.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
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`Epic admits, on information and belief, the allegations in Paragraph 4.
`4.
`Epic admits the allegations in Paragraph 5.
`5.
`Epic states that it is without knowledge or information sufficient to form a belief
`6.
`as to the truth of the allegations in Paragraph 6, except that Epic admits, on information and belief, that
`Apple released the iPhone in 2007 and launched its App Store in 2008, and that Apple invites third-
`party app developers to develop a wide array of apps for the iOS ecosystem.
`Epic denies the allegations in Paragraph 7 except admits that the App Store can
`7.
`be used to download iOS apps. In particular, Epic denies Apple’s description of the typical
`distribution options available to software developers prior to the App Store, which included digital
`software stores and other distribution channels.
`Epic is without knowledge or information sufficient to form a belief as to the
`8.
`truth of the allegations in Paragraph 8, except Epic admits that the distribution of iOS apps and in-app
`purchases of digital content comprise substantial volumes of interstate and foreign commerce and Epic
`denies that Apple conceived of the idea of a digital or mobile app store.
`Epic is without knowledge or information sufficient to form a belief as to the
`9.
`truth of the allegations in Paragraph 9, except Epic denies Apple’s stated reasons for the success of the
`App Store; denies that Apple offers Test Flight to all developers; and admits that third-party apps add
`value to the iPhone and that the App Store is dependent on apps created by third-party developers.
`
`
`Agreements drafted by Apple. References to the ’84 License Agreement and ’84 Developer
`Agreement in this Answer are solely to the agreements executed by Epic Games, Inc.
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Epic denies the allegations in Paragraph 10, except states that it is without
`10.
`knowledge or information sufficient to form a belief as to the truth of the allegations concerning sales
`“facilitated” by the App Store in 2019 or the fraction thereof distributed to developers; and admits
`(i) that the App Store is a business, (ii) that the App Store is currently the only platform by which
`developers can reach the approximately one billion iOS users, (iii) that Apple’s anti-competitive
`restraints require developers to allow Apple to manage many aspects of transactions between app
`developers and their customers on iOS, (iv) that developers are required to pay Apple a $99 annual fee
`in order to distribute apps through the App Store, and (v) that Apple charges a commission on the sale
`of apps and on certain in-app transactions for digital goods and services. Epic denies in particular that
`Apple receives nothing except a nominal annual fee with respect to developers who offer only free
`apps, as Apple has other ways in which it is compensated for its investment in iOS and obtains value
`from the distribution of such apps.
`Epic denies the allegations in Paragraph 11, except admits that, through anti-
`11.
`competitive contracts of adhesion, Apple requires certain developers to use only IAP to process certain
`in-app purchases (but allows certain app developers not to use IAP), and that Apple further requires
`developers pay a commission on those transactions.
`Epic denies the allegations in Paragraph 12, except states that it is without
`12.
`knowledge or information sufficient to form a belief as to the truth of the allegations concerning the
`features Apple may introduce at the end of the year. Epic further states that Apple exempts certain app
`developers and certain in-app purchases from its IAP requirements.
`Epic denies the allegations in Paragraph 13, except admits that it has developed
`13.
`iOS games and distributed iOS games through the App Store, as it was compelled to do by Apple’s
`anti-competitive restraints.
`Epic denies the allegations in Paragraph 14, except admits that Epic Games, Inc.
`14.
`entered into the ’84 Developer Agreement—a standard, click-through agreement drafted by Apple—
`and the ’84 License Agreement, and refers to the ’84 Developer Agreement and to the ’84 License
`Agreement for their contents. By referring to the ’84 Developer Agreement and to the ’84 License
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Case 4:20-cv-05640-YGR Document 106 Filed 09/29/20 Page 6 of 24
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`Agreement, a contract of adhesion that contains anti-competitive and unfair terms, Epic does not admit
`that any term in either Agreement is lawful and/or enforceable against Epic.
`Epic denies the allegations in Paragraph 15, except admits that Epic Games, Inc.
`15.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 16, except states that it is without
`16.
`knowledge or information sufficient to form a belief as to the truth of the allegations concerning (i) the
`number of APIs Apple makes available or (ii) the role and function of Apple’s engineers.
`Epic denies the allegations in Paragraph 17, except admits (i) that Epic was able
`17.
`to distribute its apps, including Fortnite, through the App Store only upon Apple’s approval, and (ii)
`that Epic Games, Inc. entered into the ’84 License Agreement, and refers to the ’84 License Agreement
`for its contents. By referring to the ’84 License Agreement, a contract of adhesion that contains anti-
`competitive and unfair terms, Epic does not admit that any term in the Agreement is lawful and/or
`enforceable against Epic.
`Epic denies the allegations in Paragraph 18, except admits (i) that Fortnite was
`18.
`previously available for download on the App Store, (ii) that, pursuant to its anti-competitive
`restrictions, Apple required Epic to allow Apple to manage certain aspects of Epic’s transactions with
`Epic’s own customers, (iii) that, pursuant to Apple’s requirements that developers use IAP, Apple
`collected payments from Fortnite users for in-app purchases, and (iv) that Apple transmitted certain
`sales and financial information concerning transactions between Epic and Epic’s own customers to
`Epic.
`
`Epic denies the allegations in Paragraph 19, except admits (i) that Epic Games,
`19.
`Inc. entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents;
`and (ii) when Fortnite launched on the App Store in 2018, it was and has since remained a global
`phenomenon, and Epic refers to the referenced statements for their full context and contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 20, except admits that Epic Games, Inc.
`20.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 21, except states that it is without
`21.
`knowledge or information sufficient to form a belief as to the truth of the allegations concerning the
`percentage of apps in the App Store that pay no commission to Apple, and admits that Epic Games,
`Inc. entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents.
`By referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic. Epic in particular denies that Apple does not earn any money through the App Store until a
`consumer makes a purchase, including because the availability of third-party iOS apps increases the
`value of Apple’s hardware products, including the premium-priced iPhone, because Apple collects
`annual Developer Program fees, and because Apple obtains valuable information and is compensated
`in other ways when iOS apps are distributed through the App Store.
`Epic denies the allegations in Paragraph 22, except states that it is without
`22.
`knowledge or information sufficient to form a belief as to the truth of the allegations concerning the
`function of the “App Store team”; and admits (i) that Apple requires developers to agree to a standard,
`click-through contract of adhesion—the License Agreement—and a set of guidelines—the App Store
`Review Guidelines (“Guidelines”)—as a condition of distributing iOS apps to iOS consumers, and
`refers to the License Agreement and to the Guidelines for their contents; and (ii) that Apple purports to
`review third-party apps before permitting them to be distributed through the App Store. By referring
`to the License Agreement, a contract of adhesion that contains anti-competitive and unfair terms, and
`the Guidelines, Epic does not admit that any term in either is lawful and/or enforceable against Epic.
`Epic particularly denies that it is uncommon for app developers to enable or make available new
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`EPIC’S ANSWER TO
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`features or functionalities “outside of the iOS ecosystem”, as for years Apple has been aware of and
`consented to such changes as part of the routine hotfix process used by many iOS apps, including
`Fortnite. Epic also particularly denies Apple’s implication that the App Store, rather than iOS itself, is
`primarily responsible for maintaining the safety and security of apps running on iOS.
`Epic denies the allegations in Paragraph 23, except admits that Epic Games, Inc.
`23.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 24, except admits that Epic Games, Inc.
`24.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 25, except admits that Apple publishes
`25.
`Guidelines, and refers to those Guidelines for their contents. By referring to the Guidelines, Epic does
`not admit that any term in the Guidelines is lawful and/or enforceable against Epic.
`Epic denies the allegations in Paragraph 26, except admits that Epic Games, Inc.
`26.
`entered into the ’84 Developer Agreement, the ’84 License Agreement, and that Apple publishes
`Guidelines, and refers to the ’84 Developer Agreement, to the ’84 License Agreement, and to the
`Guidelines for their contents. By referring to the ’84 Developer Agreement, ’84 License Agreement, a
`contract of adhesion that contains anti-competitive and unfair terms, and to the Guidelines, Epic does
`not admit that any term in these Agreements or Guidelines is lawful and/or enforceable against Epic.
`Epic denies the allegations in Paragraph 27, except admits that app developers,
`27.
`including Epic, are required to enter into standard, click-through contracts of adhesion as a pre-
`condition to reaching iOS users, that Epic Games, Inc. entered into the ’84 License Agreement, and
`that Apple publishes Guidelines, and refers to the ’84 License Agreement and to the Guidelines for
`their contents. By referring to the ’84 License Agreement, a contract of adhesion that contains anti-
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`competitive and unfair terms, and to the Guidelines, Epic does not admit that any term in either is
`lawful and/or enforceable against Epic.
`Epic denies the allegations in Paragraph 28, except admits (i) that Timothy
`28.
`Sweeney sent an email to Apple dated June 30, 2020, and refers to that email for its contents, and (ii)
`that Timothy Sweeney posted a tweet at 9:25 PM ET on April 1, 2020, and refers to the tweet for its
`contents. In particular, Epic states that Apple’s claim that Mr. Sweeney sought “a special arrangement
`for Epic and no other developer” is flatly contradicted by Mr. Sweeney’s June 30 email, which states
`in relevant part that Epic “hope[s] that Apple will also make these options equally available to all iOS
`developers”.
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`Epic denies the allegations in Paragraph 29, except admits that Apple sent Epic a
`29.
`letter dated July 10, 2020, and refers to that letter for its contents.
`Epic denies the allegations in Paragraph 30, except admits that Apple sent Epic a
`30.
`letter dated July 10, 2020, and refers to that letter for its contents and admits that Epic maintains a Fan
`Content Policy and refers to that Policy for its contents. Epic specifically states that the Fan Content
`Policy relates to “fan art (such as artwork, photographs, videos, and other materials) that is based on
`the Epic IP” and “Epic IP-related personal, non-commercial websites and apps that are freely
`accessible to the public.”2 Epic denies that the Fan Content Policy relates to the distribution of
`software, including through the Epic Games Store (which lacks market power in any relevant market).
`Epic denies that the Fan Content Policy for fan art and fan websites is a valid comparison to any of
`Apple’s anti-competitive conduct relating to the App Store, IAP, or the tools that creators of operating
`systems provide to third parties to allow them to create applications for those operating systems.
`Epic denies the allegations in Paragraph 31, except admits that Epic has sought
`31.
`to compete with Apple for the distribution of iOS apps and that Apple sent Epic a letter dated July 10,
`2020, and refers to that letter for its contents.
`Epic denies the allegations in Paragraph 32, except admits, upon information
`32.
`and belief, that (i) it was possible to access a website with the URL
`
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`2 See https://www.epicgames.com/site/en-US/fan-art-policy.
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`“https://www.wired.com/story/imposter-fortnite-android-apps-already-spreading-malware/” on or
`around September 8, 2020, and refers to that website for its contents; (ii) it was possible to access a
`website with the URL “https://bgr.com/2020/08/14/fortnite-ban-iphone-android-apple-google-right-vs-
`epic/” on or around September 8, 2020, and refers to that website for its contents; and (iii) it was
`possible to access a website with the URL “https://www.cbsnews.com/news/fortnite-security-flaw-
`exposed-millions-of-users-to-being-hacked/” on or around September 8, 2020, and refers to that
`website for its contents.
`Epic denies the allegations in Paragraph 33, except admits that Epic sent Apple
`33.
`an email dated July 17, 2020, and refers to that email for its contents. In particular, Epic denies
`Apple’s implication that permitting Epic to distribute iOS apps directly to consumers would expose
`Fortnite users to malware and security threats.
`Epic denies the allegations in Paragraph 34, except admits (i) that on August 3,
`34.
`2020, Epic submitted for Apple’s review Version 13.40 of Fortnite, which included a payment process
`interface for processing in-app payments, and (ii) that Apple approved this submission to be made
`available on the App Store. Epic states that it is not uncommon for app developers to enable or make
`available new features or functionalities other than through the App Store, as for years Apple has been
`aware of and consented to such changes as part of the routine hotfix process used by many iOS apps,
`including Fortnite.
`Epic denies the allegations in Paragraph 35, except admits that Timothy
`35.
`Sweeney sent Apple an email dated August 13, 2020, 2:08 AM PT, and refers to that email for its
`contents.
`
`Epic denies the allegations in Paragraph 36, except admits that on August 3,
`36.
`2020, Epic submitted for Apple’s review Version 13.40 of Fortnite, which included a payment process
`interface for processing in-app payments, and that beginning the morning of August 13, 2020, when
`the Fortnite app on iOS devices queried Epic’s servers as to how many payment processing options
`were available, the servers informed the app that there were two options, including Epic Direct Pay.
`Epic states that it is not uncommon for app developers to enable or make available new features or
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`functionalities other than through the App Store, as for years Apple has been aware of and consented to
`such changes as part of the routine hotfix process used by many iOS apps, including Fortnite.
`Epic denies the allegations in Paragraph 37, except admits that certain unlawful
`37.
`provisions of the ’84 License Agreement and Guidelines purport to prohibit app developers like Epic
`from providing iOS users the choice of a competing payment processing solution.
`Epic denies the allegations in Paragraph 38, except admits that Apple sent Epic a
`38.
`notice dated August 13, 2020 to Epic’s ’84 Developer Account, and refers to that notice for its
`contents.
`
`Epic denies the allegations in Paragraph 39, except admits that after Apple’s
`39.
`August 13, 2020 notice to Epic’s ’84 Developer Account, iOS Fortnite users who had updated to
`Version 13.40 continued to have a choice between Apple’s IAP and Epic Direct Pay until Apple
`terminated Epic’s ’84 Developer Account on August 28, 2020, at which point Apple blocked Apple’s
`IAP from Fortnite.
`Epic denies the allegations in Paragraph 40, except admits that Apple sent Epic a
`40.
`notice dated August 14, 2020 to Epic’s ’84 Developer Account, and refers to that notice for its
`contents.
`
`Epic denies the allegations in Paragraph 41, except admits (i) that Apple
`41.
`terminated Epic’s ’84 Developer Account on August 28, 2020, (ii) that after Apple’s August 13, 2020
`notice to Epic’s ’84 Developer Account, iOS Fortnite users continued to have a choice between IAP
`and Epic Direct Pay until Apple terminated Epic’s ’84 Developer Account on August 28, 2020, at
`which point Apple blocked IAP from Fortnite, and (iii) that Epic has processed in-app purchases
`through its Epic Direct Pay processing solution.
`Epic denies the allegations in Paragraph 42, except admits that certain unlawful
`42.
`provisions of the ’84 License Agreement and Guidelines purport to prohibit app developers like Epic
`from providing iOS users the choice of a competing payment processing solution.
`Epic denies the allegations in Paragraph 43, except admits (i) that it filed a
`43.
`Complaint against Apple on August 13, 2020, (ii) that it released an animated video titled Nineteen
`Eighty-Fortnite, and refers to the video for its contents, (iii) that it filed an emergency motion for a
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`EPIC’S ANSWER TO
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`temporary restraining order against Apple, and (iv) that it hosted an event titled “#FreeFortniteCup” on
`August 23, 2020, which invited Fortnite players to participate in one last chance for cross-platform
`play.
`
`Epic denies the allegations in Paragraph 44, except admits that it filed a motion
`44.
`for a temporary restraining order against Apple, including exhibits displaying customer complaints and
`refers to those exhibits for their contents.
`Epic denies the allegations in Paragraph 45, except admits that it filed a motion
`45.
`for a temporary restraining order against Apple, including exhibits displaying customer complaints,
`and refers to those exhibits for their contents.
`Epic denies the allegations in Paragraph 46.
`46.
`47.
`Epic restates and incorporates by reference each of its responses to Apple’s
`allegations that Apple purports to reallege and incorporate in Paragraph 47.
`Epic denies the allegations in Paragraph 48, except admits that Epic Games, Inc.
`48.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 49.
`49.
`Epic denies the allegations in Paragraph 50, except admits that Epic Games, Inc.
`50.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic denies the allegations in Paragraph 51, except admits that certain unlawful
`51.
`provisions of the ’84 License Agreement purport to prohibit app developers like Epic from providing
`iOS users the choice of a competing payment processing solution. Epic states that it is not uncommon
`for app developers to enable or make available new features or functionalities other than through the
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`EPIC’S ANSWER TO
`APPLE’S COUNTERCLAIMS
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`Case 4:20-cv-05640-YGR Document 106 Filed 09/29/20 Page 13 of 24
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`App Store, as for years Apple has been aware of and consented to such changes as part of the routine
`hotfix process used by many iOS apps, including Fortnite.
`Epic denies the allegations in Paragraph 52, except admits that Epic Games, Inc.
`52.
`entered into the ’84 License Agreement, and refers to the ’84 License Agreement for its contents. By
`referring to the ’84 License Agreement, a contract of adhesion that contains anti-competitive and
`unfair terms, Epic does not admit that any term in the Agreement is lawful and/or enforceable against
`Epic.
`
`Epic states that the allegations in the first sentence of Paragraph 53 state a legal
`53.
`conclusion to which no response is required. To the extent a response is required, Epic denies the
`allegations in Paragraph 53, except admits that on August 3, 2020, Epic submitted for Apple’s review
`Version 13.40 of Fortnite, which included a payment process interface for processing in-app payments,
`and that beginning the morning of August 13, 2020, when the Fortnite app on iOS devices queried
`Epic’s servers as to how many payment processing options were available, the servers informed the
`app that there were two options, including Epic Direct Pay.
`Epic denies the allegations in Paragraph 54, except admits that certain unlawful
`54.
`