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Comment by cavanasm | Hacker News Reader

Believe it or not, you can put illegal things in contracts, and lawsuits are there to work that situation out, which is why Epic has gone this route.

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Epic went this route to inflict maximum PR damage, they could've sued without willfully violating their contract which hurt their legal case as they've now entered into the lawsuit with unclean hands which was one of the considerations used to deny their injunction for Fortnite.

They needed to do it this way to ensure they had standing to bring a suit as they can now non-hypothetically prove they've been harmed.

This is untrue. Their harm was of their own making which was why the Judge dismissed their injunction:

> The Court finds that with respect to Epic Games’ motion as to its games, including Fortnite, Epic Games has not yet demonstrated irreparable harm. The current predicament appears of its own making. Epic strategically chose to breach its agreements with Apple

How can purposefully violating someone's contract be a prerequisite for bringing a lawsuit against the organization whose contract you're violating? Where is the legal argument backing up "They needed to do it this way"?

There hasn't been a hearing on an injunction yet, that happens later this month. The hearing that HAS happened was on a temporary restraining order, which was to keep Apple from doing anything UNTIL AFTER the injunction hearing.

The difference is important, the temporary restraining order's effects are only limited to that August-September time window, and the hearing itself had limited argument, and very little preparation time (Epic presumably thinking Apple wouldn't be so aggressive, and would want to drag things out, which they do, but they're also probably hoping to force a settlement as soon as possible). Part of Epic's legal team's arguments was that there is binding legal precedent that "self inflicted harm" was not disqualifying of any of their claims in an anti-trust suit due to the standing hurdle (of note: a similar anti-trust suit filed by an Apple user was thrown out without a trial on grounds that the customer was not able to sufficiently demonstrate Apple's practices harmed them; standing is a very big hurdle), but Epic's lawyers messed up and forgot to file that case brief in the documents they submitted before the restraining order hearing, so the judge made no determination then. They indicated it would be included in the injunction hearing filings. Basically, everything the judge has determined so far could change at the end of the month.

That's correct, the ruling was for the TRO. But this still doesn't answer why "They needed to do it this way", i.e. why was their willful subversive violation a prerequisite for their lawsuit against Apple & how can that be advantageous to the party committing the violations?

So far it hasn't been. It appears obvious their approach was to first inflict PR damage & garner public support prior to commencing legal action.

> a similar anti-trust suit filed by an Apple user was thrown out without a trial on grounds that the customer was not able to sufficiently demonstrate Apple's practices harmed them

Which case is this? Epic’s complaint [1] only mentions the word “standing” once and seeks broad restraints on Apple’s “conduct” that go beyond the enforcement of one TOS clause. I can see why strategically, Epic thought it was best to build the record by breaching its contract with Apple first, but it’s not clear that this was an essential precondition to the lawsuit.

[1] https://cdn2.unrealengine.com/apple-complaint-734589783.pdf

Apple Inc vs Pepper. It was filed very early in iOS's life, got thrown out in 2013 after years of wrangling (by this same judge?), I didn't realize this part, but it went all the way up to SCOTUS in 2019 after getting thrown out, where they said the district court was wrong to dismiss the case, and it looks like it is actually still technically ongoing since that Supreme Court ruling, but I have no idea what the status is because I can't find reporting on it past the SCOTUS ruling. So yeah, there appears to be an open question of whether Epic could have filed suit without the theatrics.

> Part of Epic's legal team's arguments was that there is binding legal precedent that "self inflicted harm" was not disqualifying of any of their claims in an anti-trust suit due to the standing hurdle

I think you've misunderstood this part of the hearing. The cases they attempted to cite said that the doctrine of "unclean hands" is not a valid defense in an antitrust claim. It's unrelated to standing or whether their injury was self-inflicted for purposes of the TRO and the judge said in her ruling that it wasn't relevant to her analysis. [1]

> a similar anti-trust suit filed by an Apple user was thrown out without a trial on grounds that the customer was not able to sufficiently demonstrate Apple's practices harmed them

If you are referring to Apple v. Pepper note that this ruling was reversed by the Supreme Court and the case is still ongoing. [2]

[1] https://www.courtlistener.com/recap/gov.uscourts.cand.364265... (Footnote on Page 5)

[2] https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf

The other point of the PR stunt is "encouraging" Apple to do the right thing, outside of court. Which they didn't, to my complete and utter surprise.

Epic already had standing to sue from the $300 million in Fortnite IAP fees Apple has collected. They can already show harm and can sue to get those fees back. They did not need to do anything else.

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