`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`DEC 8 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` Plaintiff-counter-
`
`defendant-Appellant,
`
`EPIC GAMES, INC.,
`
`
`
`
` v.
`
`
`APPLE, INC.,
`
`
`
`
` Defendant-counter-claimant-
` Appellee.
`
`
`
` Plaintiff-counter-
`
`defendant-Appellee,
`
`EPIC GAMES, INC.,
`
`
`
`
` v.
`
`
`APPLE, INC.,
`
`
`
`
` Defendant-counter-claimant-
` Appellant.
`
`
`
`
`
`
`
`No. 21-16506
`
`
`D.C. No. 4:20-cv-05640-YGR
`Northern District of California,
`Oakland
`
`
`ORDER
`
`No. 21-16695
`
`
`D.C. No. 4:20-cv-05640-YGR
`
`
`
`
`
`Before: O’SCANNLAIN, THOMAS, and TALLMAN, Circuit Judges.
`
`
`
`Apple, Inc. (“Apple”) has moved to stay, in part, the district court’s
`
`September 10, 2021, permanent injunction pending appeal. Apple’s motion (Dkt.
`
`Entry No. 19) is granted.
`
`
`
`
`
`Apple has demonstrated, at minimum, that its appeal raises serious questions
`
`
`
`
`
`
`
`Case: 21-16506, 12/08/2021, ID: 12309816, DktEntry: 27, Page 2 of 2
`
`on the merits of the district court’s determination that Epic Games, Inc. failed to
`
`show Apple’s conduct violated any antitrust laws but did show that the same
`
`conduct violated California’s Unfair Competition Law. See City of San Jose v. Off.
`
`of the Com’r of Baseball, 776 F.3d 686, 691–92 (9th Cir. 2015) (“[U]nder
`
`California law ‘[i]f the same conduct is alleged to be both an antitrust violation and
`
`an “unfair” business act or practice for the same reason—because it unreasonably
`
`restrains competition and harms consumers—the determination that the conduct is
`
`not an unreasonable restraint of trade necessarily implies that the conduct is not
`
`“unfair” toward consumers.’” (quoting Chavez v. Whirlpool Corp., 113 Cal. Rptr.
`
`2d 175, 184 (Cal. Ct. App. 2001))). Apple has also made a sufficient showing of
`
`irreparable harm, see Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 865–66
`
`(9th Cir. 2017), and that the remaining factors weigh in favor of staying part (i) of
`
`the injunction and maintaining the status quo pending appeal, see Nken v. Holder,
`
`556 U.S. 418, 434–35 (2009).
`
`Therefore, we grant Apple’s motion to stay part (i) of paragraph (1) of the
`
`permanent injunction. The stay will remain in effect until the mandate issues in
`
`this appeal. The existing briefing schedule remains in place.
`
`
`
`2
`
`21-16506
`
`
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