Epic could have brought on this lawsuit while still complying with the App Store rules, in fact the judge suggested they do that so their users aren't impacted. They wouldn't be getting kicked off right now and the Sign-in with Apple button wouldn't be getting disabled. They chose to break the app store rules, which they did agreed to, AND they also decided to sue Apple.
They could revert their app right now and Apple would restore their account and they could still continue their lawsuit. Epic is just weaponizing their user base in their fight against Apple.
You have no way of knowing this and frankly I doubt it. And I'm not sure that it wouldn't weaken their legal position.
"We agree with Judge Gonzalez-Rogers that 'the sensible way to proceed' is for Epic to comply with the App Store guidelines and continue to operate while the case proceeds. If Epic takes the steps the judge has recommended, we will gladly welcome Fortnite back onto iOS. We look forward to making our case to the court in September."
Edit: Oh, and Epic also says Apple privately threatened to ban them for a year, contradicting what they said in court.
Among other things, Apple does not allow developers to mention competing products or that discounts are available for purchasing outside of the Apple store.
https://www.theguardian.com/games/2020/sep/09/fortnite-could...
In fact, the judge did not suggest they do so because absent economic harm Epic had no standing to sue until Apple retaliated. The judge simply pointed out that they couldn't provide injunctive relief forcing Apple to allow Epic to have its own store before the case was decided on the merits. (Judges rarely grant injunctive relief to change the status quo, especially in commercial cases.)
> In fact, the judge did not suggest they do so because absent economic harm Epic had no standing to sue until Apple retaliated.
Yes, she did. She literally suggested the sensible way to proceed was to comply with the agreement while the lawsuit went on.
Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues, but as the Seventh Circuit recognized in Second City Music, “[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record.” Id. “Any injury that [Epic Games] incurs by following a different course is of its own choosing.” Id.
https://www.courtlistener.com/recap/gov.uscourts.cand.364265... (Page 5)
Epic is alleging that Apple is breaking the law. That's the whole point of the antitrust lawsuit, to decide if they are or are not.
> Epic could have brought on this lawsuit while still complying with the App Store rules
No they could not. They needed standing to sue. "Apple is doing what the contract says and we don't like it" does not establish standing. Epic needed to act as though the contract was illegal, suffer some harm, and then they have standing to sue. That's exactly what happened.
You are correct that they could revert their changes and comply for the time being and Apple seems amenable to that.
What Epic needs to do to survive summary judgement is to present a trialable claim that injury to competition has occurred. The trial itself will then determine whether the claim is accurate not.
I still don't think Fortnite being in or out of the App Store makes a difference to Epic's case. If Epic's theory of Apple's behavior is correct, then they have a winning case regardless of whatever happened to Fortnite specifically.
2. It was already established in Apple v. Pepper that developers had standing to sue Apple over App Store policies. The case then went up to the Supreme Court which ruled that consumers also have standing to sue.
3. Showing consumer harm may help Epic win their suit. But it's not necessary to establish standing to bring the suit in the first place.
In any case it seems like the goalposts have been moved from "Epic needs to establish standing" to "Epic needs a strong case". My point was only to correct the former misconception which for some reason has been incorrectly repeated all over this thread.
Standing needs to be established separately for each claim, yes, but I expect in this case the $300 million in fees takes care of that across the board.
They will suffer reputation damage anyway, but they at least stand a chance of convincing some of their customers that they have a good reason for taking these actions.