throbber
No.
`In the Supreme Court of the United States
`
`
`
`APPLE INC., PETITIONER
`v.
`EPIC GAMES, INC., RESPONDENT
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`MARK A. PERRY
`Counsel of Record
`JOSHUA M. WESNESKI
`WEIL, GOTSHAL & MANGES LLP
`2001 M Street NW
`Washington, DC 20036
`(202) 682-7000
`mark.perry@weil.com
`
`MARK I. PINKERT
`WEIL, GOTSHAL & MANGES LLP
`1395 Brickell Avenue
`Miami, FL 33131
`
`
`THEODORE J. BOUTROUS, JR.
`DANIEL G. SWANSON
`GIBSON, DUNN & CRUTCHER
`LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071
`
`CYNTHIA RICHMAN
`ZACHARY B. COPELAND
`GIBSON, DUNN & CRUTCHER
`LLP
`1050 Connecticut Ave., NW
`Washington, DC 20036
`
`JULIAN W. KLEINBRODT
`GIBSON, DUNN & CRUTCHER
`LLP
`555 Mission Street
`San Francisco, CA 94105
`
`
`
`
`

`

`QUESTION PRESENTED
`A federal court may provide injunctive relief only to
`the named plaintiff, unless a class has been certified or
`broader relief is necessary to redress that plaintiff ’s in-
`jury. In this single-plaintiff lawsuit, the Ninth Circuit
`affirmed a universal injunction that affects millions of
`nonparties without any findings or evidence that such
`relief is necessary to redress the individual plaintiff ’s al-
`leged injury. The question presented is:
`Whether, in the absence of class certification, a fed-
`eral court is precluded from entering an injunction that
`extends to nonparties without a specific finding that
`such relief is necessary—as to all nonparties—to re-
`dress any injury to the individual plaintiff.
`
`
`
`
`
`
`
`
`(i)
`
`

`

`
`
`PARTIES TO THE PROCEEDINGS
`Pursuant to this Court’s Rule 14(1)(b)(i), petitioner
`states that the caption of the case contains the names of
`all parties to the proceeding in the court whose judg-
`ment is sought to be reviewed.
`
`(ii)
`
`

`

`
`
`CORPORATE DISCLOSURE STATEMENT
`Pursuant to this Court’s Rules 14(1)(b)(ii) and 29.6,
`petitioner states that it has no parent company and no
`publicly held company owns 10% or more of its stock.
`
`
`
`(iii)
`
`

`

`
`
`RELATED PROCEEDINGS
`Pursuant this Court’s Rule 14(1)(b)(iii), petitioner
`identifies the following related proceedings and the date
`of final judgment or disposition in each:
`United States District Court (N.D. Cal.):
`Epic Games, Inc. v. Apple Inc., No. 20-CV-5640 (Sept.
`12, 2021)
`Cameron v. Apple Inc., No. 19-CV-3074 (June 10,
`2022, amended July 15, 2022)
`Pepper v. Apple Inc., No. 11-CV-06714 (no final dis-
`position)
`United States Court of Appeals (9th Cir.):
`Epic Games, Inc. v. Apple Inc., Nos. 21-16506,
`21-16695 (Apr. 24, 2023)
`Supreme Court of the United States:
`Epic Games, Inc. v. Apple Inc., No. 23A78 (Aug. 9,
`2023)
`
`
`
`
`
`
`
`(iv)
`
`

`

`
`
`TABLE OF CONTENTS
`
`
`OPINIONS BELOW ......................................................... 1
`JURISDICTION ............................................................... 2
`CONSTITUTIONAL PROVISIONS AND RULE
`INVOLVED ....................................................................... 2
`INTRODUCTION ............................................................. 2
`STATEMENT ................................................................... 4
`REASONS FOR GRANTING THE PETITION .......... 10
`I. The Injunction is Unconstitutionally
`Overbroad............................................................... 11
`A. The Constitution Constrains the Scope of
`Injunctive Relief.. ............................................ 11
`B. The Decision Below Defies Established
`Limitations on the Scope of Injunctions ........ 14
`II. The Constitutionality of Overbroad
`Injunctions Is a Recurring Issue Warranting
`this Court’s Review ............................................... 21
`CONCLUSION ............................................................... 27
`
`
`
`
`
`(v)
`
`

`

`
`
`TABLE OF APPENDICES
`
`
`
`Appendix A: Court of appeals corrected opinion
`(May 3, 2023)................................................................... 1a
`Appendix B: District court findings of fact and
`conclusions of law (September 10, 2021) .................... 89a
`Appendix C: District court order denying motion
`to stay pending appeal (November 9, 2021) ............. 406a
`Appendix D: Court of appeals order denying pe-
`titions for rehearing (June 30, 2023) ........................ 412a
`Appendix E: District court judgment (September
`10, 2021) ...................................................................... 414a
`Appendix F: District court permanent injunction
`(September 10, 2021) ................................................. 416a
`Appendix G: Court of appeals order staying in-
`junction pending issuance of the mandate (De-
`cember 8, 2021) ........................................................... 418a
`Appendix H: Court of appeals order staying the
`mandate pending this Court’s resolution of
`petition for a writ of certiorari (July 21, 2023) ........ 420a
`
`
`
`
`
`
`(vi)
`
`

`

`
`TABLE OF AUTHORITIES
`
`Cases Page(s)
`Apple Inc. v. Pepper,
`139 S. Ct. 1514 (2019) ......................................... 4
`Barr v. Am. Ass’n of Political Consultants,
`Inc.,
`140 S. Ct. 2335 (2020) ....................................... 26
`Birdsong v. Apple Inc.,
`590 F.3d 955 (9th Cir. 2009) ............................. 19
`Brown v. Trustees of Bos. Univ.,
`891 F.2d 337 (1st Cir. 1989) ............................. 22
`Califano v. Yamasaki,
`442 U.S. 682 (1979) ....................... 2, 3, 10, 11, 12
` ................................................... 13, 14, 15, 18, 25
`Cameron v. Apple Inc.,
`No. 19-CV-3074 (N.D. Cal.) .................... 6, 16, 17
`Chavez v. Whirlpool Corp.,
`93 Cal. App. 4th 363 (2001) .............................. 20
`Dep’t of Homeland Sec. v. New York,
`140 S. Ct. 599 (2020) ......................................... 21
`Epic Games, Inc. v. Apple Inc.,
`No. 23A78 (Aug. 9, 2023) .................................. 10
`Free Speech Coal., Inc. v. Att’y Gen. United
`States,
`974 F.3d 408 (3d Cir. 2020) ........................ 23, 24
`Georgia v. President of the United States,
`46 F.4th 1283 (11th Cir. 2022) ......................... 22
`Gill v. Whitford,
`138 S. Ct. 1916 (2018) ................................... 2, 12
`Hansberry v. Lee,
`311 U.S. 32 (1940) ................................. 12, 13, 17
`(vii)
`
`

`

`
`Holland v. Florida,
`560 U.S. 631 (2010) ........................................... 19
`Hollingsworth v. Perry,
`570 U.S. 693 (2013) ........................................... 19
`Lewis v. Casey,
`518 U.S. 343 (1996) ..................................... 12, 14
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) ................................. 3, 12, 14
`L. W. ex rel. Williams v. Skrmetti,
`73 F.4th 408 (6th Cir. 2023) ............................. 22
`Madsen v. Women’s Health Ctr., Inc.,
`512 U.S. 753 (1994) ........................................... 11
`Meyer v. CUNA Mut. Ins. Soc’y,
`648 F.3d 154 (3d Cir. 2011) .............................. 23
`Murthy v. Missouri,
`No. 23A243 (U.S. Sept. 14, 2023) ..................... 24
`Ohio v. Am. Express Co.,
`138 S. Ct. 2274 (2018) ................................... 5, 17
`Phillips Petroleum Co. v. Shutts,
`472 U.S. 797 (1985) ..................................... 13, 17
`Rhode Island v. Massachusetts,
`37 U.S. 657 (1838) ....................................... 12, 19
`Smith v. GTE Corp.,
`236 F.3d 1292 (11th Cir. 2001) ......................... 22
`Summers v. Earth Island Inst.,
`555 U.S. 488 (2009) ........................................... 18
`Taylor v. Sturgell,
`553 U.S. 880 (2008) ..................................... 13, 17
`TransUnion LLC v. Ramirez,
`141 S. Ct. 2190 (2021) ................................. 13, 18
`
`(viii)
`
`

`

`
`Trump v. Hawaii,
`138 S. Ct. 2392 (2018) .................................. 3, 21
`United States v. Microsoft Corp.,
`253 F.3d 34 (D.C. Cir. 2001) ............................. 14
`United States v. Texas,
`143 S. Ct. 1964 (2023) ................................... 3, 21
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) ........................................... 13
`Constitutional Provisions and Statutes
`U.S. Const. amend. V ............................................... 2
`California Unfair Competition
`Law, Business and Professions Code
`§§ 17200 ................................... 6, 8, 14, 15, 18, 25
`Other Authorities
`Fed. R. Civ. P. 23 ...................................... 2, 9, 13, 17
`Samuel L. Bray, Multiple Chancellors:
`Reforming the National Injunction, 131
`Harv. L. Rev. 417 (2017) ................................... 16
`Ronald Cass, Nationwide Injunctions’
`Governance Problems: Forum-Shopping,
`Politicizing Courts, and Eroding
`Constitutional Structure, 27 Geo. Mason
`L. Rev. 29 (2019) ............................................... 23
`Alan M. Trammell, Demystifying
`Nationwide Injunctions, 98 Tex. L. Rev.
`67 (2019) ............................................................ 24
`Zayn Siddique, Nationwide Injunctions, 117
`Colum. L. Rev. 2095 (2017) .............................. 17
`
`(ix)
`
`

`

`
`In the Supreme Court of the United States
`
`
`
`NO.
`APPLE INC., PETITIONER
`v.
`EPIC GAMES, INC., RESPONDENT
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`OPINIONS BELOW
`The opinion of the court of appeals (Pet. App. 1a–88a)
`is published at 67 F.4th 946. The order denying the pe-
`titions for rehearing (Pet. App. 412a–413a) is un-
`published. The order staying the injunction pending is-
`suance of the mandate (Pet. App. 418a–419a) is un-
`published; a subsequent order staying the mandate
`pending this Court’s resolution of the petition for a writ
`of certiorari (Pet. App. 420a–429a) is published at 73
`F.4th 785. The findings of fact and conclusions of law of
`the district court (Pet. App. 89a–405a) are published at
`559 F. Supp. 3d 898. The district court’s judgment (Pet.
`App. 414a–415a) and permanent injunction (Pet. App.
`416a–417a) are unpublished. The district court’s ruling
`on the motion to stay pending appeal (Pet. App. 406a–
`411a) is unpublished, but available at 2021 WL 5205487
`(N.D. Cal.).
`
`(1)
`
`

`

`2
`JURISDICTION
`The Ninth Circuit’s judgment was entered on April
`24, 2023. Timely petitions for rehearing were denied on
`June 30, 2023. Pet. App. 412a. The jurisdiction of this
`Court is invoked pursuant to 28 U.S.C. § 1254(1).
`CONSTITUTIONAL PROVISIONS AND RULE INVOLVED
`Article III, § 2, cl. 1 provides in relevant part that
`“[t]he judicial Power shall extend to all Cases, in Law
`and Equity, arising under this Constitution [or] the
`Laws of the United States” and “to Controversies . . . be-
`tween Citizens of different States.”
`The Fifth Amendment provides in relevant part that
`“[n]o person shall be . . . deprived of life, liberty, or prop-
`erty, without due process of law.”
`Federal Rule of Civil Procedure 23(b)(2) provides in
`relevant part that “[a] class action may be maintained if
`Rule 23(a) is satisfied and if . . . the party opposing the
`class has acted or refused to act on grounds that apply
`generally to the class, so that final injunctive relief or
`corresponding declaratory relief is appropriate respect-
`ing the class as a whole.”
`INTRODUCTION
`A federal court may provide injunctive relief only to
`the named plaintiff, unless either (a) a class has been
`certified or (b) the court makes a specific finding that
`extending relief to nonparties is necessary to redress
`any injury to that plaintiff. These requirements are im-
`posed by Article III and the Due Process Clause, and
`have repeatedly been recognized by this Court. Gill v.
`Whitford, 138 S. Ct. 1916, 1933-34 (2018); Califano v.
`Yamasaki, 442 U.S. 682, 702 (1979). Of late, however,
`lower federal courts have been abjuring these limita-
`
`
`
`

`

`3
`tions by issuing so-called nationwide (or universal) in-
`junctions, even where no class has been certified and
`without concluding that relief as to all affected nonpar-
`ties is necessary to redress the individual plaintiff ’s in-
`jury. This case is a particularly egregious example.
`In this single-plaintiff case, the district court sua
`sponte issued a universal injunction prohibiting peti-
`tioner Apple Inc. from enforcing one of its contractual
`guidelines against all developers of apps on the App
`Store’s United States storefront—of which there are
`millions—not just against respondent Epic Games, Inc.
`The Ninth Circuit affirmed on the ground that extend-
`ing injunctive relief to some nonparties—approximately
`100 other app developers—was necessary to redress
`Epic’s alleged injury. Neither court ever found, or even
`considered, whether relief as to all affected nonparties
`was necessary or appropriate.
`The breathtakingly broad injunction defies this
`Court’s admonition that “injunctive relief should be no
`more burdensome to the defendant than necessary to
`provide complete relief to the plaintiffs.” Califano, 442
`U.S. at 702 (emphasis added). An individual plaintiff
`must prove that affording relief to nonparties is neces-
`sary to redress its own injury “in the same way as any
`other matter on which the plaintiff bears the burden of
`proof.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
`(1992). Epic failed to do so here, and the resulting in-
`junction offends core constitutional principles, including
`Article III and due process.
`Members of this Court have expressed serious con-
`cerns about the increasingly prevalent practice of issu-
`ing overbroad injunctions. See, e.g., United States v.
`Texas, 143 S. Ct. 1964, 1980 (2023) (Gorsuch, J., concur-
`ring); Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018)
`
`
`

`

`4
`(Thomas, J., concurring). Some other courts of appeals
`have recognized the threat that the recent trend toward
`nationwide injunctions poses to constitutional interests
`if not properly circumscribed. The Ninth Circuit deci-
`sion in this case points in exactly the opposite direction,
`providing a blueprint for universal injunctive relief
`without class certification or any findings that the relief
`is narrowly tailored. Accordingly, this case presents the
`ideal opportunity for this Court to confirm that the Con-
`stitution requires federal courts to adjudicate the rights
`of only the parties before them and to limit injunctive
`decrees to the actual litigants or nonparties specifically
`found (not assumed) to be necessary.
`STATEMENT
`1. Apple’s iOS App Store is a two-sided transaction
`platform that connects app developers with iPhone and
`iPad users through simultaneous transactions. Pet.
`App. 351a–352a. Consumers can download a wide vari-
`ety of apps on the App Store, most of which are free. Pet.
`App. 91a. Additionally, some apps allow users to pur-
`chase digital goods and services within the app. Pet.
`App. 139a–140a. Developers pay a commission to Apple
`on paid downloads of apps and on in-app purchases of
`digital goods and services. Pet. App. 11a.
`At the time of trial, there were over 30 million regis-
`tered developers of native iOS apps. Pet. App. 10a.
`These third-party developers are responsible for the
`vast majority of the approximately two million apps
`available through the U.S. storefront of the App Store.
`See Apple Inc. v. Pepper, 139 S. Ct. 1514, 1519 (2019).
`Developers who use Apple’s proprietary software and
`technology to develop iOS apps must enter into a license
`agreement that contains a number of requirements, two
`of which Epic challenged in this lawsuit: First, iOS apps
`
`
`

`

`5
`must be distributed through Apple’s curated App Store;
`and second, iOS apps that offer digital goods and ser-
`vices for purchase within the app must use Apple’s IAP
`system for making those in-app purchases. See Pet.
`App. 13a.
`In addition, Apple’s guidelines for app developers
`provide that “[a]pps and their metadata may not include
`buttons, external links, or other calls to action that di-
`rect customers to purchasing mechanisms other than
`[IAP].” Pet. App. 13a–14a. This is referred to as the
`“anti-steering” provision, because it prevents developers
`from “steering” consumers within apps on the App Store
`to alternative purchase mechanisms elsewhere. It is
`undisputed that virtually all digital transaction plat-
`forms enforce similar anti-steering (or anti-circumven-
`tion) rules. C.A. Dkt. No. 94, at 4-SER-982–1029. This
`Court has recognized that such rules can be procompet-
`itive. Ohio v. Am. Express Co., 138 S. Ct. 2274, 2289
`(2018).
`2. Epic is a developer of computer games and
`(through its nonparty subsidiaries) other apps. Pet.
`App. 95a–96a. Epic’s most popular game is Fortnite,
`which allows players to compete against one another in
`a virtual “battle royale.” Pet. App. 99a–100a. Prior to
`this litigation, an iOS version of Fortnite was available
`on the App Store; Epic also distributed Fortnite on con-
`sole game stores (including PlayStation and Xbox), An-
`droid mobile app stores (including the Google Play Store
`and Samsung Galaxy Store), and PC software stores (in-
`cluding Steam and the Epic Games Store). Pet. App.
`102a–103a. Epic also operates the Epic Games Store,
`through which developers may distribute apps on Mac
`and Windows personal computers but not on other plat-
`forms.
`
`
`

`

`6
`Epic has long been disgruntled with Apple’s distribu-
`tion and IAP requirements. Pet. App. 118a–119a. Epic
`wants to distribute apps and sell in-app content directly
`to iOS users without going through the App Store. Ad-
`ditionally, Epic wants to offer its own in-app purchasing
`mechanism as an alternative to IAP. Pet. App. 126a–
`127a. What Epic really wants is to use the App Store
`platform to access more than a billion iOS consumers
`without paying Apple a commission. Pet. App. 118a.
`3.a. In 2019, a putative class of iOS app developers
`filed suit against Apple alleging that the distribution
`and IAP requirements are anticompetitive and in viola-
`tion of federal and state antitrust laws. See Cameron v.
`Apple Inc., No. 19-CV-3074 (N.D. Cal.). In June 2022,
`the district court approved a settlement between Apple
`and a certified class of most U.S. developers. See Order,
`Cameron, No. 19-CV-3074 (June 10, 2022), Dkt. No. 491.
`Among other things, the settlement required Apple to
`clarify how developers may communicate with users
`outside of their apps regarding alternative purchase
`mechanisms. See Stipulation of Settlement § 5.1.3,
`Cameron, No. 19-CV-3074 (Aug. 26, 2021), Dkt. No.
`396-1 Ex. A. The developer class settlement did not,
`however, require Apple to remove or modify the
`anti-steering provision at issue here, which addresses
`in-app advertisements.
`Epic filed this lawsuit in August 2020, alleging that
`the distribution and IAP requirements were unlawful
`under federal and state antitrust laws, as well as Cali-
`fornia’s Unfair Competition Law (the “UCL”). Pet. App.
`15a–16a, 129a. Epic did not separately challenge the
`anti-steering provision, but instead identified it as one
`way in which Apple enforces the IAP requirement. D.C.
`Dkt. No. 1 ¶¶ 129–34, 184–291. Epic effectively opted
`
`
`

`

`7
`out of the then-pending developer class action, and did
`not allege or seek to certify a class; nor did Epic seek to
`join any other developers (including its own subsidiar-
`ies) as plaintiffs.
`b. The district court held a bench trial in the spring
`of 2021. Pet. App. 92a n.2, 112a. During the trial, Epic’s
`CEO confirmed that Epic sought relief only for itself and
`would be content with a special exemption from the App
`Store rules applicable only to it. Pet. App. 126a–127a.
`Epic did not present any evidence regarding the effect of
`the anti-steering provision on its business (or that of its
`subsidiaries, or any developers with apps on the Epic
`Games Store). In its proposed injunctions submitted
`both before and after trial, Epic did not mention the
`anti-steering provision at all. See D.C. Dkt. No. 276-1;
`D.C. Dkt. No. 777. Apple objected, under Article III and
`due process, to the entry of any injunctive relief extend-
`ing beyond Epic to nonparties. See D.C. Dkt. No. 779
`¶¶ 711–22 (“Epic’s proposed equitable relief is over-
`broad in that it extends beyond Epic, and purports to
`bind Apple with respect to all developers”).
`The district court issued its decision on September
`10, 2021. Pet. App. 398a, 414a–415a. It ruled that all
`of Epic’s antitrust claims failed because, among other
`reasons, Epic had not proven that Apple is a monopolist
`or that the distribution and IAP requirements are anti-
`competitive under the antitrust laws. Pet. App. 397a.
`It also ruled that Epic had willfully breached its contract
`with Apple and that Epic had no cognizable legal de-
`fense. Pet. App. 386a–387a. And the court ruled that
`Apple was justified in removing Fortnite from the App
`Store and terminating Epic’s developer account. Pet.
`App. 396a.
`
`
`
`

`

`8
`Separately, however, the district court concluded
`that the anti-steering provision is “unfair” under the
`California UCL. Pet. App. 370a. The court found that
`because the anti-steering provision prevents developers
`from “communicating lower prices on other platforms,”
`it has “the effect of preventing substitution among plat-
`forms for transactions.” Pet. App. 241a, 370a.
`On this basis, the district court sua sponte issued a
`universal injunction prohibiting Apple from enforcing
`the anti-steering provision against all developers of iOS
`apps on the United States storefront of the App Store.
`Pet. App. 376a; 416a–417a. At the time, Epic was not
`an iOS app developer because Apple had terminated
`Epic’s developer account, and thus was not among the
`developers covered by the injunction (and Epic, to this
`day, has no developer account with Apple). Nonethe-
`less, the district court did not consider whether injunc-
`tive relief affecting nonparties was necessary to remedy
`any injury to Epic. In fact, the district court did not sep-
`arately find that the anti-steering provision—as distin-
`guished from the other challenged conduct—injured
`Epic in any way (and Epic had submitted no such evi-
`dence).
`c. Both parties appealed, and the Ninth Circuit
`stayed the injunction pending resolution of the appeal.
`Pet. App. 3a–4a; 418a–419a. Apple argued that the in-
`junction violated Article III, both because Epic lacked
`standing and because there was no basis to extend any
`injunction beyond Epic to nonparty developers. See
`C.A. Dkt. No. 93, at 102–04, 110 (“The Supreme Court
`has cautioned that injunctive relief should be no more
`burdensome to the defendant than necessary to provide
`complete relief to the plaintiffs before the Court.” (quo-
`tation marks omitted)). Apple also argued that “this is
`
`
`

`

`9
`not a class action, that any injunctive relief must be lim-
`ited to Epic as a matter of . . . federal law” (id. at 36),
`and that by encompassing nonparties, the injunction
`“subverts Federal Rule of Civil Procedure 23(b)(2),
`which expressly addresses injunctive relief extending
`beyond the named plaintiff ” (id. at 111).
`In response, Epic argued for the first time that broad
`injunctive relief was warranted because it sought to
`make an alternative in-app payment mechanism avail-
`able to other developers via the Epic Games Store. C.A.
`Dkt. No. 163, at 110–11. The trial evidence established
`that only approximately 100 developers distribute apps
`through the Epic Games Store. See D.C. Trial Tr.
`1220:18–20 (“Q: How many developers distribute their
`apps on the Epic Games Store today? A: A little over a
`hundred.”). Yet, Epic pointed to no trial evidence sup-
`porting its theory that nationwide relief was warranted
`because of these 100 developers.
`On April 24, 2023, the Ninth Circuit affirmed in all
`relevant respects. It offered just one paragraph of anal-
`ysis regarding the universal scope of the injunction:
`[T]he district court did not abuse its discretion when
`setting the scope of the injunctive relief because the
`scope is tied to Epic’s injuries. The district court
`found that the anti-steering provision harmed Epic by
`(1) increasing the costs of Epics’ subsidiaries’ apps
`that are still on the App Store, and (2) preventing
`other apps’ users from becoming would-be Epic
`Games Store consumers. Because Epic benefits in
`this second way from consumers of other developers’
`apps making purchases through the Epic Games
`Store, an injunction limited to Epic’s subsidiaries
`would fail to address the full harm caused by the
`anti-steering provision.
`
`
`
`

`

`10
`Pet. App. 82a (emphasis added).
`After denying the parties’ respective petitions for re-
`hearing, the Ninth Circuit stayed the mandate (and con-
`sequently the injunction) pending the resolution of Ap-
`ple’s petition for a writ of certiorari. Pet. App. 412a–Pet.
`App. 421a. Judge Smith concurred in the panel’s stay
`of the mandate but wrote separately to defend the
`breadth of the injunction. Pet. App. 421a–429a. Justice
`Kagan subsequently denied Epic’s “emergency” motion
`to vacate the stay. See Epic Games, Inc. v. Apple Inc.,
`No. 23A78 (Aug. 9, 2023).
`REASONS FOR GRANTING THE PETITION
`First, the Ninth Circuit’s decision conflicts with this
`Court’s precedent directing that unless there is a
`properly certified class, injunctive relief must be no
`more burdensome to the defendant than necessary to
`remedy the injury to the named plaintiff. Califano, 442
`U.S. at 702. The Ninth Circuit found that broad injunc-
`tive relief was justified because Epic could be indirectly
`injured through application of the anti-steering provi-
`sion to (1) one of Epic’s handful of subsidiaries, and (2)
`about 100 developers that distribute apps on Epic
`Games Stores. Yet the injunction goes far beyond that
`limited and discrete set of developers, reaching all de-
`velopers who are licensed to make iOS apps for the App
`Store’s U.S. storefront. This Court’s review is needed to
`clarify that a federal court cannot enter nationwide in-
`junctive relief in a single-plaintiff action without specif-
`ically finding that such relief is needed as to all affected
`nonparties.
`Second, the decision in this case is emblematic of an
`increasing trend toward so-called nationwide (or univer-
`sal) injunctions in the lower courts. In contrast to the
`Ninth Circuit, other courts of appeals have imposed
`
`
`

`

`11
`stringent requirements for issuing nationwide relief,
`which help protect against overbroad nationwide in-
`junctions. Members of this Court, the Department of
`Justice, and numerous commentators have raised
`alarms about the recent trend toward such relief. There
`are constitutional, practical, and prudential concerns
`with providing injunctive relief to nonparties without
`certifying a class or making specific findings that such
`relief is necessary to redress the individual plaintiff ’s al-
`leged injury. This Court’s guidance is urgently needed,
`and this case presents an ideal vehicle for addressing
`those concerns in the context of civil, non-governmental
`litigation.
`I. The Injunction is Unconstitutionally Overbroad
`A federal court may issue injunctive relief that goes
`beyond the individual plaintiff only if either (a) a class
`is certified or (b) the court finds that broader relief is
`necessary to redress the plaintiff ’s injury. There was no
`putative or certified class in this litigation. And the
`lower courts found at most that relief as to approxi-
`mately 100 nonparties was necessary to remedy Epic’s
`alleged injury. Yet the injunction extends to millions of
`developers worldwide who have no affiliation with Epic
`or this litigation. This unconstitutional exercise of
`power cannot be sustained under this Court’s settled
`precedent.
`A. The Constitution Constrains the Scope of Injunctive
`Relief
`This Court has squarely held that “injunctive relief
`should be no more burdensome to the defendant than
`necessary to provide complete relief to the plaintiffs.”
`Califano, 442 U.S. at 702; see also Madsen v. Women’s
`Health Ctr., Inc., 512 U.S. 753, 765 (1994) (similar).
`
`
`

`

`12
`“[G]ranting a remedy beyond what [is] necessary to pro-
`vide relief to [the plaintiffs is] improper.” Lewis v. Ca-
`sey, 518 U.S. 343, 360 (1996); see also Gill, 138 S. Ct. at
`1933 (vacating statewide injunction because “[t]he
`Court’s constitutionally prescribed role is to vindicate
`the individual rights of the people appearing before it”).
`A federal court should thus “take care to ensure that na-
`tionwide relief is indeed appropriate in the case before
`it.” Califano, 442 U.S. at 702. There are two principal
`rationales for this rule.
`First, this Court has long recognized that Article III
`courts possess only the power “to render a judgment or
`decree upon the rights of the litigant parties.” Rhode
`Island v. Massachusetts, 37 U.S. 657, 718 (1838). That
`longstanding rule forms the basis for the principle that
`any remedy “must of course be limited to the inadequacy
`that produced the injury in fact that the plaintiff has es-
`tablished.” Lewis, 518 U.S. at 357. Thus, any part of an
`injunction that does not redress a constitutionally cog-
`nizable injury of the plaintiff violates Article III. See id.
`at 358. The plaintiff must prove the elements of stand-
`ing, including redressability, “in the same way as any
`other matter on which the plaintiff bears the burden of
`proof ” (Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
`(1992)), and broad injunctive relief can be upheld only if
`there is an adequate “finding” in the district court that
`such relief is needed (Lewis, 518 U.S. at 360).
`Second, due process restrains the extent to which
`nonparties’ rights may be adjudicated. On the claimant
`side, “[i]t is a principle of general application in An-
`glo-American jurisprudence that one is not bound by a
`judgment in personam in litigation in which he is not
`designated as a party or to which he has not been made
`a party by service of process.” Hansberry v. Lee, 311
`
`
`

`

`13
`U.S. 32, 40 (1940). That is because “[a] person who was
`not a party to a suit generally has not had a ‘full and fair
`opportunity to litigate’ the claims and issues settled in
`that suit.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
`On the defense side, nationwide adjudication of rights
`in a single-plaintiff action threatens to prejudice defend-
`ants, because while they will be bound nationwide if
`they lose, they will have no res judicata rights against
`future litigants if they win. See Phillips Petroleum Co.
`v. Shutts, 472 U.S. 797, 805 (1985).
`There is, of course, one way in which a claimant may
`obtain relief for absent individuals or entities: a
`properly certified class action. The “Rule 23 class-action
`device was designed to allow an exception to the usual
`rule that litigation is conducted by and on behalf of the
`individual named parties only.” Califano, 442 U.S. at
`700–01; see also Hansberry, 311 U.S. at 41 (similar).
`Most relevant here, Rule 23(b)(2) provides for injunctive
`relief extending beyond the named plaintiff where the
`demanding requirements of Rule 23(a)—including com-
`monality and typicality—are met. See Fed. R. Civ. P.
`23(a)(3). A putative Rule 23(b)(2) class must also show
`that “the party opposing the class has acted or refused
`to act on grounds that apply generally to the class.”
`Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360–61
`(2011) (quoting Fed. R. Civ. P. 23(b)(2)). Specifically, the
`named plaintiff must show that all persons who would
`benefit from an injunction would be entitled to the same
`relief that the class representative seeks. Id. at 361–62;
`cf. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208
`(2021).
`
`
`
`

`

`14
`B. The Decision Below Defies Established Limitations
`on the Scope of Injunctions
`1. Consistent with these principles, this Court has
`been clear that a universal injunction, if ever appropri-
`ate, is a narrow exception to the ordinary rule that the
`injunctive relief ought to be strictly limited to the par-
`ties. The Court has instructed that federal courts
`“should take care to ensure that nationwide relief is in-
`deed appropriate in the case” to redress the individual
`plaintiff ’s injury (Califano, 442 U.S. at 702), and that
`there must be an adequate “finding” of the need for such
`relief by the trial court before such relief may be entered
`or sustained (Lewis, 518 U.S. at 360). For these reasons
`(and others), a separate evidentiary hearing is required
`if there are disputed factual issues regar

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