No. _______
`IN THE
`Supreme Court of the United States
`
`EPIC GAMES, INC.,
`
`V.
`APPLE INC.,
`
`Applicant,
`
`Respondent.
`
`TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT AND
`CIRCUIT JUSTICE FOR THE NINTH CIRCUIT ON APPLICATION TO VACATE NINTH
`CIRCUIT’S STAY OF ITS MANDATE AND STAY OF PERMANENT INJUNCTION ISSUED BY THE
`UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`APPENDIX TO EMERGENCY APPLICATION TO VACATE THE NINTH
`CIRCUIT’S STAY OF ITS MANDATE OR STAY PENDING APPEAL
`
`CHRISTINE A. VARNEY
`GARY A. BORNSTEIN
`ANTONY L. RYAN
`YONATAN EVEN
`CRAVATH, SWAINE & MOORE
`LLP
`825 EIGHTH AVENUE
`NEW YORK, NY 10019-7475
`(212) 474-1000
`
` PAUL J. R IEHLE
`FAEGRE DRINKER BIDDLE & REATH
`LLP
`FOUR EMBARCADERO CENTER
`SAN FRANCISCO, CA 94111-4180
`(415) 591-7500
`
`THOMAS C. GOLDSTEIN
`Counsel of Record
` 4323 HAWTHORNE ST., NW
` WASHINGTON, DC 20016
` (202) 674-7594
`TOM@TOMGOLDSTEIN.NET
`
`Counsel for Applicant
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`Appendix A: United States Court of Appeals for the Ninth Circuit Order
`Staying the Mandate Pending Petition for Writ of Certiorari ............ 1a
`Appendix B: Apple’s Motion to Stay Mandate Pending Petition for a Writ of
`Certiorari ............................................................................................. 13a
`Appendix C: Appellant, Cross-Appellee Epic Games, Inc.’s Response to
`Apple Inc.’s Motion to Stay Mandate Pending Petition for Writ
`of Certiorari ......................................................................................... 46a
`Appendix D: United States Court of Appeals for the Ninth Circuit Order
`Staying the Permanent Injunction Pending Appeal.......................... 67a
`Appendix E: United States Court of Appeals for the Ninth Circuit Opinion ......... 70a
`Appendix F: United States Court of Appeals for the Ninth Circuit Order
`Denying Rehearing En Banc ............................................................ 162a
`
`

`

`Appendix A
`Appendix A
`
`

`

`Case: 21-16506, 07/21/2023, ID: 12759396, DktEntry: 251, Page 1 of 11
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`EPIC GAMES, INC.,
`
`No. 21-16506
`
`Plaintiff-counter-
`defendant-Appellant,
`
`
`
`
`
` v.
`
`D.C. No.
`4:20-cv-05640-
`YGR
`
`APPLE, INC.,
`
`ORDER
`
`Defendant-counter-claimant-
`Appellee.
`
`EPIC GAMES, INC.,
`
`No. 21-16695
`
`Plaintiff-counter-
`defendant-Appellee,
`
`
`
`
`
` v.
`
`APPLE, INC.,
`
`D.C. No.
`4:20-cv-05640-
`YGR
`
`Defendant-counter-claimant-
`Appellant.
`
`Filed July 17, 2023
`
`1a
`
`

`

`Case: 21-16506, 07/21/2023, ID: 12759396, DktEntry: 251, Page 2 of 11
`
`2
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`Before: SIDNEY R. THOMAS and MILAN D. SMITH,
`JR., Circuit Judges, and MICHAEL J. MCSHANE,*
`District Judge.
`
`Order;
`Concurrence by Judge M. Smith
`
`ORDER
`
`Apple’s Motion to Stay the Mandate (Dkt No. 247) is
`GRANTED. Pursuant to Rule 41(d) of the Federal Rules of
`Appellate Procedure, the mandate is stayed for 90 days to
`permit the filing of a petition for writ of certiorari in the
`Supreme Court. Apple must notify the Court in writing that
`the petition has been filed, in which case the stay will
`continue until the Supreme Court resolves the petition. See
`Fed. R. App. P. 41(d)(2)(B)(ii). Should the Supreme Court
`grant certiorari, the mandate will be stayed pending
`disposition of the case. Should the Supreme Court deny
`certiorari, the mandate will issue immediately. The parties
`shall advise this Court immediately upon the Supreme
`Court’s decision.
`
`* The Honorable Michael J. McShane, United States District Judge for
`the District of Oregon, sitting by designation.
`
`2a
`
`

`

`Case: 21-16506, 07/21/2023, ID: 12759396, DktEntry: 251, Page 3 of 11
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`3
`
`M. SMITH, Circuit Judge, concurring in the granting of the
`motion for a stay of the mandate pending the filing of a
`petition for certiorari:
`
`Given our general practice of granting a motion for a stay
`if the arguments presented therein are not frivolous, I have
`voted to grant Apple’s motion. See United States v. Pete,
`525 F.3d 844, 850 (9th Cir. 2008) (it is “often the case” that
`our court stays the mandate while a party seeks certiorari). I
`write separately to express my view that, while the
`arguments in Apple’s motion may not be technically
`frivolous, they ignore key aspects of the panel’s reasoning
`and key factual findings by the district court. When our
`reasoning and the district court’s findings are considered,
`Apple’s arguments cannot withstand even the slightest
`scrutiny. Apple’s standing and scope-of-the-injunction
`arguments simply masquerade its disagreement with the
`district court’s findings and objection to state-law liability as
`contentions of legal error.
`
`I. STANDING
`
`Because Apple’s anti-steering provision negatively
`affects the revenue Epic earns through the Epic Games Store,
`Epic had standing to seek injunctive relief against that
`provision pursuant to California’s Unfair Competition Law
`(UCL), Cal. Bus. & Prof. Code § 17200 et seq.
`
`To establish standing, a plaintiff must have “suffered an
`injury in fact that is concrete, particularized, and actual or
`imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
`2203 (2021). “[M]onetary harms” are one of the “[m]ost
`obvious” types of harm that satisfy the injury-in-fact
`requirement. Id. at 2204.
`
`3a
`
`

`

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`
`4
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`Epic has “three primary lines of business, each of which
`figures into various aspects of [this case].” Epic Games, Inc.
`v. Apple, Inc. (Epic II), 67 F.4th 946, 967 (9th Cir. 2023).
`First, Epic is a “video game developer—best known for the
`immensely popular Fortnite.” Id. Second, Epic is the “the
`parent company of a gaming-software developer” (Epic
`International), which still has several apps on Apple’s App
`Store. Id. Third, Epic is “a video game publisher and
`distributor,” offering “the Epic Games Store as a game-
`transaction platform” on multiple devices. Id. at 968. In this
`last role, Epic is “a direct competitor” of Apple’s App Store
`“when it comes to games that feature cross-platform
`functionality like Fortnite.” Id.
`
`As the panel opinion explained, the second and third
`lines of business—not the first—give rise to an injury in fact.
`See id. at 1000. As the parent company of Epic International,
`Epic is harmed because its subsidiary still has apps on the
`App Store that are subject to the anti-steering provision. As
`a games distributor, Epic is harmed because app developers
`cannot direct, with the promise of lower prices, their users to
`the Epic Games Store, which takes a significantly lower
`commission on app purchases than the App Store. As we
`explained: “[Epic] offers a 12% commission compared to
`Apple’s 30% commission. If consumers can learn about
`lower app prices, which are made possible by developers’
`lower costs, and have the ability to substitute to the platform
`with those lower prices, they will [almost always] do so—
`increasing the revenue that the Epic Games Store generates.”
`Id.
`
`Such monetary loss is hornbook injury-in-fact, and
`Apple’s arguments to the contrary misconstrue both our
`decision and the record. Apple asserts that Epic lacks
`standing because “Epic’s developer program account has
`
`4a
`
`

`

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`
`EPIC GAMES, INC. V. APPLE, INC.
`
`5
`
`been terminated,” meaning Epic “has no apps on the App
`Store.” But we did not conclude, as Apple’s argument
`suggests, that Epic was injured in its role as a video game
`developer (i.e., as the creator of the since-removed Fortnite).
`We recognized at the very start of our standing analysis that
`Apple had “terminated Epic’s iOS developer account,” and
`instead determined that Epic suffered an injury-in-fact in its
`role as a parent company and competing games distributor.
`Id. at 1000.
`
`Regarding these two bases on which we actually
`determined standing, Apple offers only the conclusory
`statement that “no trial evidence or findings by the district
`court” support them. However, that assertion is simply false.
`Regarding Epic’s role as the parent of Epic International, the
`record contains screenshots showing that Epic International
`still has six apps on the App Store, even though the parent
`company’s developer account has been terminated.
`
`The record is also filled with support for the common-
`sense proposition that Epic is harmed as a competing games
`distributor because consumers would shift some of their
`spending from the App Store to the Epic Games Store if
`developers could communicate the availability of lower
`prices on the latter. To begin, Apple’s own internal
`documents conclude that two of the “most effective
`marketing activities” are “push notifications” and “email
`outreach,” which are the two practices prohibited by Apple’s
`anti-steering provision. Epic Games, Inc. v. Apple Inc. (Epic
`I), 559 F. Supp. 3d 898, 1054 (N.D. Cal. 2021); see also Epic
`II, 67 F.4th at 1001. Moreover, before the district court,
`Apple defeated Epic’s proposed market definition for its
`Sherman Act claims based on the very kind of factual
`findings that it now claims are non-existent. The district
`court found that video games increasingly can be “ported
`
`5a
`
`

`

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`
`6
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`across multiple devices” because of the growing prevalence
`of cross-platform functionality. Epic I, 559 F. Supp. 3d at
`985; see also Epic II, 67 F.4th at 967 (describing “cross-
`play,” “cross-progression,” and “cross-wallet”). “[N]ot all
`games” feature cross-platform functionality, and some
`platforms have taken steps to limit it. Epic I, 559 F. Supp.
`3d. at 985. But when it comes to the games that do offer
`such cross-platform functionality, app-transaction platforms
`(like the App Store and Epic Games Store) “are truly
`competing against one another.” Id. The district court,
`therefore, rejected the contention that the App Store is a
`market unto itself and summarized its analysis as follows:
`“[N]either consumers nor developers are ‘locked-in’ to the
`App Store for digital mobile game transactions—they can
`and do pursue game transactions on a variety of other mobile
`platforms and increasingly other game platforms.” Id. at
`1026. Indeed, the district court found that Fortnite data
`provided a particularly vivid illustration: Between 32 and
`52% of Fortnite users play the game on multiple devices,
`and, after Fortnite was removed from the App Store, 87% of
`Fortnite spending that had occurred on iOS devices was
`shifted to other platforms. Id. at 961 & n.277.1
`
`Apple wants to have it both ways: On the merits, it
`argued that there was sufficient evidence to support a finding
`that consumers can, and do, substitute across various app-
`transaction platforms. But on standing, it now argues that
`
`1 On appeal, the panel majority did not address the district court’s
`substitution factual finding, as we determined that Epic failed to make a
`required threshold showing for its proposed single-brand market: that the
`restrictions it alleged to cause consumer lock-in were “not generally
`known” to consumers when they purchased iOS devices in the
`foremarket. Epic II, 67 F.4th at 976–77, 980–81.
`
`6a
`
`

`

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`
`EPIC GAMES, INC. V. APPLE, INC.
`
`7
`
`there would be absolutely no substitution if app developers
`could inform users of lower prices available on the Epic
`Games Store.
`
`II. SCOPE OF THE INJUNCTION
`
`The district court did not abuse its discretion in enjoining
`Apple’s anti-steering provision as to all iOS developers
`because doing so was necessary to fully remedy the harm
`that Epic suffers in its role as a competing games
`distributor.2
`
`“[I]njunctive relief should be no more burdensome to the
`defendant than necessary to provide complete relief to the
`plaintiff[].” Califano v. Yamasaki, 442 U.S. 682, 702
`(1979); see also Epic, 67 F.4th at 1002 (setting forth the
`same rule). An injunction remedying a plaintiff’s harm may
`“affect[] nonparties[] [if] it does so only incidentally.”
`United States v. Texas, 2023 WL 4139000, at *12 (U.S. June
`23, 2023) (Gorsuch, J., concurring); see also Bresgal v.
`Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1988) (“[A]n
`injunction is not necessarily made overbroad by extending
`benefit or protection to persons other than the prevailing
`parties in the lawsuit—even if it is not a class action—if such
`breadth is necessary to give prevailing parties the relief to
`which they are entitled.”).
`
`2 Apple argues in its motion for a stay that the injunction will subject iOS
`users to “scams, fraud, and objectionable content.” But the district court
`expressly found that the anti-steering provision could be enjoined
`“without any impact on the integrity of the [iOS] ecosystem.” Epic I,
`559 F. Supp. 3d at 1055. Both the district court and our court upheld
`Apple’s ability to control what content can be downloaded on iOS
`devices. The injunction against the anti-steering provision simply allows
`developers to let users know that certain content (which Apple has itself
`chosen to allow access to) can be purchased at a lower price elsewhere.
`
`7a
`
`

`

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`
`8
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`Apple contends that the district court’s injunction
`impermissibly allowed Epic’s suit to proceed as a “de facto”
`class action in which Epic obtained nationwide injunctive
`“relief on behalf of others.” To paint this picture, it argues
`that “the panel never explained” how harm to Epic’s
`“subsidiaries justified an injunction applicable not only to . .
`. its subsidiaries, but also to all other U.S. developers.” Like
`its standing argument, this argument overlooks aspects of the
`panel opinion’s analysis that are inconvenient to its position
`and is incorrect. As the opinion explained, it was Epic’s role
`as a competing games distributor—not its role as a parent
`company—that justified application of the
`injunction
`beyond just Epic’s subsidiaries. As a games distributor, Epic
`is harmed by Apple’s anti-steering provision’s prevention of
`“other apps’ users from becoming would-be Epic Games
`Store consumers.” Epic II, 67 F.4th at 1003. Had the district
`court limited the injunction only to Epic’s subsidiaries’ apps
`on the App Store, the injunction would have “fail[ed] to
`address the full harm caused by the anti-steering provision.”
`Id. The injunction is thus consistent with the minimally-
`burdensome principle because the injunction’s “scope is tied
`to Epic’s injuries.” Id.
`
`Apple’s argument also overlooks that, in an antitrust suit
`brought by a competitor, injunctive relief will almost by
`definition have incidental benefits to non-parties—since
`antitrust law protects competition, not individual market
`participants. To be sure, it is the “the exception,” not the
`rule, for injunctive relief to incidentally affect non-parties—
`and such cases will likely be few and far between in most
`areas of law. Cachil Dehe Band of Wintun Indians of Colusa
`Indian Cmty. v. California, 618 F.3d 1066, 1084 (9th Cir.
`2010). But injunctions with incidental benefits for non-
`parties are the inevitable result when a competitor-plaintiff
`
`8a
`
`

`

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`
`EPIC GAMES, INC. V. APPLE, INC.
`
`9
`
`makes the difficult showing that it is entitled to injunctive
`relief pursuant to state or federal competition law. As a
`threshold matter, a competitor-plaintiff must prove that the
`defendant’s conduct caused it a tangible injury as a
`competitor. But to ultimately prevail and obtain relief, it
`must prove that the defendant’s conduct harmed competition
`(i.e., consumers). This two-types-of-harm requirement
`necessarily means that relief will have two types of
`benefits—remedying the competitor’s harm in the main,
`while benefitting consumers incidentally.
`
`Begin with the statute at issue here: California’s UCL.
`To establish statutory standing, a competitor-plaintiff must
`have “suffered injury in fact and . . . lost money or property,”
`such that its bottom line as a competitor was negatively
`affected. Cal. Bus. & Prof. Code § 17204. But to win on the
`merits, a competitor-plaintiff must show that the defendant’s
`conduct “threatens an incipient violation of an antitrust law,
`. . . violates [antitrust law’s] policy or spirit . . . , or otherwise
`significantly threatens or harms competition.” Cel-Tech
`Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163,
`186–87 (1999). Because antitrust’s goal is the “the
`protection of competition, not competitors,” Cargill, Inc. v.
`Monfort of Colo., Inc., 479 U.S. 104, 110 (1986), a
`competitor-plaintiff will win on the merits only if it proves
`that the defendant’s conduct harms consumers. Therefore,
`by the time a court is fashioning injunctive relief in a UCL
`competitor suit, the court has already determined both that
`(1) the defendant’s conduct caused the plaintiff-competitor
`to lose “money or property,” and (2) that the same conduct
`harmed consumers. Relief remedying (1) will necessarily
`have incidental benefits for the consumers found to have
`been harmed at (2). If that were not the case, then the
`plaintiff-competitor would not have prevailed on the merits.
`
`9a
`
`

`

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`
`10
`
`EPIC GAMES, INC. V. APPLE, INC.
`
`two-types-of-harm
`imposes a similar
`law
`Federal
`requirement. To establish Article III standing, a plaintiff-
`competitor must have “suffered an injury in fact,” such as
`“monetary harm[].” TransUnion, 141 S. Ct. at 2203. But
`the plaintiff-competitor must also establish antitrust injury—
`that their “injury [is] of the type the antitrust laws were
`designed to prevent.” Cargill, 479 U.S. at 111, 117 (lost
`profits caused by competitor’s lower prices after merger are
`not antitrust injury).
` Similarly, on the merits, the
`competitor-plaintiff must prove the defendant’s conduct
`harms consumers by, for example, decreasing output or
`raising prices. See Epic II, 67 F.4th at 983. If a competitor-
`plaintiff is able to serve two masters and establish Article III
`standing on the one hand and antitrust injury and liability on
`the other,
`then
`the competitor-plaintiff would have
`necessarily shown that the defendant’s conduct harms both
`the plaintiff as a competitor and consumers. So again, it is
`hardly surprising that the injunctive relief granted in such a
`case will carry incidental benefits for consumers.
`
`Consider, as an example, the Kodak-parts litigation that
`was the subject of the Supreme Court’s decision in Eastman
`Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451
`(1992). Independent service organizations (ISOs) alleged
`that Kodak violated federal antitrust law by “adopt[ing]
`policies to limit the availability of parts to [the] ISOs to make
`it more difficult for ISOs to compete with Kodak in servicing
`Kodak equipment.” Id. at 455. The Supreme Court
`affirmed our court’s denial of summary judgment, id. at 486;
`on remand, the ISOs prevailed in a jury trial and the district
`court entered an injunction requiring Kodak to sell its parts
`to ISOs on “reasonable and nondiscriminatory terms and
`prices.” Image Tech. Servs., Inc. v. Eastman Kodak Co., 125
`F.3d 1195, 1201 (9th Cir. 1997). The injunction remedied
`
`10a
`
`

`

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`
`EPIC GAMES, INC. V. APPLE, INC.
`
`11
`
`the ISOs’ harm: their inability to compete for “large
`contracts” because they lacked “sufficient parts.” Id. at
`1222. But the injunction also incidentally benefited
`consumers by breaking up what the jury had found to be an
`unlawfully maintained monopoly. See id. at 1207–12. The
`injunction was challenged on several grounds, see id. at
`1224–25, but there was no hint of the radical argument that
`Apple now advances: that a competition-law injunction is
`invalid if it benefits consumers.
`
`CONCLUSION
`
`Apple’s standing and scope-of-the-injunction arguments
`challenge an imagined panel opinion on an imagined record.
`When the panel opinion’s reasoning and the district court’s
`factual findings are fully considered, the motion’s arguments
`fall far short of establishing legal error.
`
`11a
`
`

`

`Appendix B
`Appendix B
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 1 of 32
`
`Nos. 21-16506 & 21-16695
`fflntteb $>tat~ Qtourt of §ppeah, for tbe ..fltntb Qttrrutt
`
`EPIC GAMES, INC.,
`Plaintiff I counter-defendant,
`Appellant I cross-appellee,
`
`v.
`APPLE INC.,
`Defendant I counter-claimant,
`Appellee/ cross-appellant.
`
`Appeal from the United States District Court for the
`Northern District of California (Hon. Yvonne Gonzalez Rogers),
`No. 4:20-cv-05640-YGR
`
`APPLE INC.'S MOTION TO STAY MANDATE PENDING
`PETITION FOR A WRIT OF CERTIORARI
`
`Cynthia Richman
`Zachary B. Copeland
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, NW
`Washington, DC 20036
`
`Theodore J. Boutrous, Jr.
`Daniel G. Swanson
`GIBSON, DUNN & CRUTCHER LLP
`333 S. Grand Ave.
`Los Angeles, CA 90071
`
`Mark A. Perry
`Joshua M. Wesneski
`WEIL, GOTSHAL & MANGES LLP
`2001 M Street NW, Suite 600
`Washington, DC 20036
`(202) 682-7511
`Mark.Perry@weil.com
`
`Julian W. Kleinbrodt
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission St., Suite 3000
`San Francisco, CA 94105
`
`Counsel for Apple Inc.
`
`13a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 2 of 32
`
`TABLE OF CONTENTS
`Introduction ..................................................................................................... 1
`Background ...................................................................................................... 3
`Legal Standard ................................................................................................ 8
`Reasons To Stay The Mandate ...................................................................... 8
`I.
`Apple's Petition Will Present Substantial Questions
`of Law ................................................................................................. 8
`A. Nationwide Injunctions Are Controversial, and
`the Supreme Court Is Poised To Address the Issue .................. 9
`The Panel's Decision Raises a Substantial Question
`About the Proof Necessary for Article III Injury ..................... 18
`There Is Good Cause for a Stay ..................................................... 21
`II.
`Conclusion ...................................................................................................... 24
`Certificate of Compliance ............................................................................. 25
`Certificate of Service ..................................................................................... 26
`
`B.
`
`1
`
`14a
`
`

`

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`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Alliance for the Wild Rockies v. Cottrell,
`632 F.3d 1127 (9th Cir. 2011) ................................................................. 22
`
`In re Apple iPhone Antitrust Litig.,
`11-cv-06714-YGR (N.D. Cal.) .................................................................... 3
`
`Ariz. Dream Act Coalition v. Brewer,
`757 F.3d 1053 (9th Cir. 2014) ................................................................. 22
`
`Baxter v. Palmigiano,
`425 U.S. 308 (1976) .................................................................................... 9
`
`Bresgal v. Brock,
`843 F.2d 1163 (9th Cir. 1987) ................................................................. 10
`
`Brown v. Trs. of Bos. Univ.,
`891 F.2d 337 (1st Cir. 1989) .................................................................... 10
`
`Bryant v. Ford Motor Co.,
`886 F.2d 1526 (9th Cir. 1989) ................................................................... 8
`
`Califano v. Yamasaki,
`442 U.S. 682 (1979) ........................................................................ 9, 12, 13
`
`Cameron v. Apple Inc.,
`19-cv-03074-YGR (N.D. Cal.) .......................................................... 3, 6, 14
`
`Clapper v. Amnesty Int'l USA,
`568 U.S. 398 (2013) .................................................................................. 18
`
`Dep't of Homeland Sec. v. New York,
`140 S. Ct. 599 (2020) ................................................................................ 15
`
`Easyriders Freedom F.LG.H.T. v. Hannigan,
`92 F.3d 1486 (9th Cir. 1996) ................................................................... 10
`
`Fox v. Saginaw County,
`67 F.4th 284 (6th Cir. 2023) .................................................................... 16
`
`..
`11
`
`15a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 4 of 32
`
`Garcia v. Google,
`786 F.3d 733 (9th Cir. 2015) ................................................................... 23
`
`Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,
`527 U.S. 308 (1999) .................................................................................. 16
`
`Hangarter v. Provident Life & Accident Ins. Co.,
`373 F.3d 998 (9th Cir. 2004) ................................................................... 19
`
`Hansberry v. Lee,
`311 U.S. 32 (1940) .................................................................................... 14
`
`Kleppe v. Sierra Club,
`427 U.S. 390 (1976) .................................................................................. 23
`
`L.A. Haven Hospice, Inc. v. Sebelius,
`638 F.3d 644 (9th Cir. 2011) ................................................................... 10
`
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) ............................................................................ 18, 19
`
`Meyer v. CUNA Mut. Ins. Soc'y,
`648 F.3d 154 (3d Cir. 2011) ..................................................................... 10
`
`Microsoft Corp. v. Baker,
`582 U.S. 23 (2017) .................................................................................... 14
`
`Nat'l Pork Producers Council v. Ross,
`143 S. Ct. 1142 (2023) .............................................................................. 12
`
`Ohio v. Am. Express Co.,
`138 S. Ct. 227 4 (2018) .............................................................................. 18
`
`Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med.
`Progress,
`613 F. Supp. 3d 1190 (N.D. Cal. 2020) ................................................... 13
`
`Powers v. Ohio,
`499 U.S. 400 (1991) .................................................................................... 9
`
`Regents of Univ. of Cal. v. Am. Broad. Cos.,
`747 F.2d 511 (9th Cir. 1984) ................................................................... 23
`
`111
`
`16a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 5 of 32
`
`Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental,
`Inc.,
`944 F.2d 597 (9th Cir. 1991) ................................................................... 22
`
`Rogers v. Lyft, Inc.,
`452 F. Supp. 3d 904 (N.D. Cal. 2020) ..................................................... 12
`
`Sharpe v. Cureton,
`319 F.3d 259 (6th Cir. 2003) ................................................................... 10
`
`Trump v. Hawaii,
`138 S. Ct. 2392 (2018) .............................................................................. 15
`
`United States v. Microsoft Corp.,
`253 F.3d 34 (D.C. Cir. 2001) ................................................................... 12
`
`United States v. Pete,
`525 F.3d 844 (9th Cir. 2008) ..................................................................... 8
`
`United States v. Texas,
`No. 22-58, 2023 WL 4139000 (U.S. June 23, 2023) ........................ 14, 17
`
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) ...................................................................... 11, 13, 16
`
`Yazzie v. Hobbs,
`977 F.3d 964 (9th Cir. 2020) ................................................................... 19
`
`Other Authorities
`
`9th Cir. R. 41-1 ................................................................................................ 1
`
`Fed. R. Civ. P. 23 ................................................................................... passim
`
`Fed. R. App. P. 41 ........................................................................................ l, 8
`
`Nicholas Bagley, A Single Judge Shouldn't Have This Kind of
`National Power, The Atlantic (Apr. 14, 2023) ....................................... 15
`
`Samuel L. Bray, Multiple Chancellors: Reforming the
`National Injunction, 131 Harv. L. Rev. 417 (2017) .............................. 15
`
`IV
`
`17a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 6 of 32
`
`Ronald Cass, Nationwide Injunctions' Governance Problems:
`Forum-Shopping, Politicizing Courts, and Eroding
`Constitutional Structure, 27 Geo. Mason L. Rev. 29 (2019) ................ 15
`
`Bradford C. Mank, Clapper v. Amnesty International: Two or
`Three Competing Philosophies of Standing Law?, 81 Tenn.
`L. Rev. 211 (2014) .................................................................................... 21
`
`Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2),
`and the Remedial Powers of the Lower Courts, 97 B.U. L.
`Rev. 615 (2017) ............................................................................. 10, 15, 16
`
`Carolyn Shapiro, Democracy, Federalism, and the Guarantee
`Clause, 62 Ariz. L. Rev. 183 (2020) ........................................................ 1 7
`
`Benjamin C. West, No Harm, Still Foul: When an Injury-in-
`Fact Materializes in a Consumer Data Breach, 69
`Hastings L.J. 701 (2018) ......................................................................... 21
`
`The Supreme Court - Leading Cases: Standing -
`Challenges to Government Surveillance - Clapper v.
`Amnesty International USA, 127 Harv. L. Rev. 298 (2013) ................ 20
`
`Editorial Board, The Judicial Injunction Dysfunction, Wall
`St. J. (July 28, 2019) ................................................................................ 16
`
`V
`
`18a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 7 of 32
`
`Apple Inc. respectfully requests that this Court stay the mandate
`
`pending the resolution of a petition for a writ of certiorari that Apple in(cid:173)
`
`tends to file in the Supreme Court. The petition will raise substantial
`
`questions of law and there is good cause for a stay. Fed. R. App. P. 41(d)(l).
`
`The petition will not be frivolous or filed for purposes of delay. 9th Cir. R.
`
`41-1. Epic Games, Inc. has not consented to the relief requested.
`
`INTRODUCTION
`
`The district court issued a sweeping injunction prohibiting Apple
`
`from enforcing its anti-steering rules against all developers of iOS apps
`
`offered for distribution in the United States, even though the sole named
`
`plaintiff (Epic Games, Inc.) did not seek or obtain class certification, and
`
`did not prove that an injunction running in favor of non-parties was nec(cid:173)
`
`essary to make it whole. The injunction cannot be reconciled with Federal
`
`Rule of Civil Procedure 23(b)(2), which expressly addresses injunctive re(cid:173)
`
`lief extending beyond the named plaintiff, and exceeds the district court's
`
`authority under Article III, which limits federal court jurisdiction to actual
`
`cases and controversies.
`
`The panel's decision affirming the injunction departs from Supreme
`
`Court and Circuit precedent holding that an injunction cannot be any
`
`broader than necessary to make the plaintiff whole, and that relief cannot
`
`otherwise extend beyond the named plaintiff without class certification
`
`19a
`
`

`

`Case: 21-16506, 07/03/2023, ID: 12747579, DktEntry: 247, Page 8 of 32
`
`under Rule 23. The Supreme Court has recently and repeatedly signaled
`
`concern with the use of such universal injunctions in single-plaintiff ac(cid:173)
`
`tions and is poised to resolve this controversial practice. The panel's deci(cid:173)
`
`sion on Article III injury, based on unsubstantiated economic theories
`
`proffered on appeal-but never advanced, let alone proven, at trial-runs
`
`headlong into the Supreme Court's repeated pronouncements that a fed(cid:173)
`
`eral-court plaintiff must prove the prerequisites to standing. These
`
`weighty legal questions warrant review by the Supreme Court and, at the
`
`very least, constitute substantial questions of law.
`
`There is good cause for the stay bec