Apple returned to the Ninth Circuit this week, asking judges to wipe a contempt finding tied to how it opened the App Store to outside payments. The panel pressed both sides on what a “reasonable” commission should look like and questioned whether the trial court went too far in banning commissions on external purchases altogether.
Reuters reported that Apple’s counsel Gregory Garre argued Judge Yvonne Gonzalez Rogers exceeded her authority when she expanded the injunction and found Apple in contempt earlier this year. Apple said it complied with the 2021 order to allow links to outside payments, then set a commission on off-app transactions, and that any disagreement called for clarification, not sanctions. Epic countered that Apple knowingly undercut the order and never sought guidance.
A bench probing “reasonable fee”
Judges probed how to measure a fair commission. Judge Milan Smith Jr suggested the right question is what “reasonable” compensation covers Apple’s actual costs on a complex platform, and asked how to measure that. Garre pointed to the value of Apple’s tools, marketplace security, and user base, saying experts should inform a new rate and that Apple has every incentive to propose one promptly. Those exchanges appear on the court’s own video of the hearing.
Two judges signaled discomfort with a zero-commission rule and seemed open to Apple’s view that the district court overreached. Coverage from Courthouse News and others aligned on that tone, describing a panel receptive to Apple’s arguments about scope and process.
What the fight is about right now
The contempt order stems from Apple’s rollout of a 27 percent charge on some external transactions after the 2021 injunction barred anti-steering rules. Judge Gonzalez Rogers said Apple “willfully” defied that order and referred the matter for possible criminal contempt, escalating a clash that began in 2020 when Epic added an outside payment link to Fortnite. Apple’s stance is that the injunction did not ban commissions, only anti-steering barriers.
Apple framed the remedy going forward as a modification proceeding to set a defensible commission with expert input. Epic urged the panel not to reward what it calls a calculated violation. The Ninth Circuit did not rule from the bench; a written decision will follow. If either side loses, another round of appeals remains possible.
A ruling narrowing the contempt order would let Apple charge some commission on external payments, shaping how developers monetize beyond in-app purchases. A ruling upholding zero commission would strengthen Epic’s position and cut directly into Apple’s App Store economics. The court’s video and multiple reports show the panel testing the limits of the original injunction and looking for a practical standard.
