Epic Games, Inc. v. Apple Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EPIC GAMES, INC., No. 25-2935

D.C. No.

Plaintiff-ctr-defendant -

4:20-cv-05640-

Appellee,

YGR

v.

APPLE INC.,

OPINION

Defendant-ctr-claimant -

Appellant.

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted October 21, 2025

San Francisco, California

Filed December 11, 2025

Before: SIDNEY R. THOMAS and MILAN D. SMITH,

JR., Circuit Judges, and MICHAEL J. MCSHANE, Chief

District Judge. *

Opinion by Judge Milan D. Smith, Jr.

*

The Honorable Michael J. McShane, United States Chief District Judge

for the District of Oregon, sitting by designation.

2 EPIC GAMES, INC. V. APPLE INC.

SUMMARY **

Contempt / Sanctions

The panel (1) affirmed in part and reversed in part the

district court’s order imposing civil contempt sanctions on

Apple Inc. for failing to comply with an injunction in an

action brought by Epic Games, Inc.; and (2) declined to

vacate the injunction.

After a bench trial, the district court enjoined Apple from

certain anticompetitive business practices related to its App

Store, and this court affirmed the injunction. Apple claimed

to comply with the injunction, but it instead prohibited App

Store developers from using buttons, links, and other calls to

action without paying a prohibitive commission to Apple,

and it restricted the design of the developers’ links to make

it difficult for customers to use them. The district court

found Apple in contempt, and it issued an order to address

Apple’s violations of the injunction.

Affirming the district court’s contempt findings, the

panel held that the district court did not abuse its discretion

by finding Apple in contempt. Addressing Apple’s

methodological arguments, the panel concluded that the

district court did not improperly rely on the injunction’s

spirit. The district court did not err in considering evidence

of Apple’s bad faith and did not clearly err in finding that

Apple acted in bad faith. And the district court properly

considered materials that Apple contended were protected

by the attorney-client privilege. Addressing the merits of the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

EPIC GAMES, INC. V. APPLE INC. 3

district court’s contempt analysis, the panel concluded that

Apple’s civil contempt was shown by clear and convincing

evidence. Under the injunction, Apple could not prohibit

developers from including in their apps and their metadata

buttons, external links, or other calls to action that directed

customers to purchasing mechanisms outside of Apple’s

App Store. The panel concluded that charging a 27%

commission had a prohibitive effect, in violation of the

injunction. Apple also prohibited users from making

purchases on developers’ sites, in violation of the injunction,

with its restrictions on link design. Two restrictions violated

the strict letter of the injunction, and others violated the

injunction’s implicit command to refrain from action

designed to defeat it.

The panel reversed and remanded in part the district

court’s imposition of civil contempt sanctions. The panel

concluded that most of the six prescriptive restrictions that

the district court imposed on Apple’s conduct properly

restated Apple’s existing obligations under the injunction,

but some parts of the restrictions were overbroad. In

addition, a commission prohibition did not qualify as a civil

contempt sanction in its present form. The panel modified

part of the district court’s order and remanded to the district

court for further modifications. The panel concluded that the

district court’s order did not impose price controls requiring

equitable abstention under California’s Unfair Competition

Law. The order did not violate the Takings Clause by

forbidding Apple from charging a commission on linked-out

purchases, and the order did not violate Apple’s First

Amendment rights. In addition, the district court did not

deny Apple due process.

The panel rejected Apple’s arguments that the injunction

must be vacated. The panel concluded that a recent decision

4 EPIC GAMES, INC. V. APPLE INC.

from a California Court of Appeal did not conflict with the

injunction. Apple argued that the Supreme Court’s recent

ruling on nationwide injunctions in Trump v. CASA, Inc.,

606 U.S. 831 (2025), clashed with the injunction, but the

panel concluded that CASA did not undermine this court’s

prior analysis of the injunction’s scope, and the district

court’s injunction was not an impermissible nationwide

injunction.

COUNSEL

Gary Bornstein (argued), Yonatan Even, Lauren A.

Moskowitz, Justin Clarke, Michael J. Zaken, and M. Brent

Byars, Cravath Swaine & Moore LLP, New York, New

York; Daniel Woofter, Kevin Russell, Russell & Woofter

LLC, Washington, D.C.; Paul J. Riehle, Faegre Drinker

Biddle & Reath LLP, San Francisco, California; for

Plaintiff-counter-defendant-Appellee.

Gregory G. Garre (argued), Roman Martinez, Peter E. Davis,

and Soren J. Schmidt, Latham & Watkins LLP, Washington,

D.C.; Sarah M. Ray and Nicholas Rosellini, Latham &

Watkins LLP, San Francisco, California; Ben Harris and

Kristin C. Holladay, Latham & Watkins LLP, New York,

New York; Zachary D. Tripp, Mark A. Perry, and Joshua M.

Wesneski, Weil Gotshal & Manges LLP, Washington, D.C.;

Cynthia E. Richman, Gibson Dunn & Crutcher LLP,

Washington, D.C.; Theodore J. Boutrous Jr. and Daniel G.

Swanson, Gibson Dunn & Crutcher LLP, Los Angeles,

California; for Defendant-counter-claimant-Appellant.

Scott A. Keller, Steven P. Lehotsky, and Jeremy E. Maltz,

Lehotsky Keller Cohn LLP, Washington, D.C., for Amici

EPIC GAMES, INC. V. APPLE INC. 5

Curiae NetChoice and Computer & Communications

Industry Association.

Karl Huth, Matthew Reynolds, J. Lee Hill, and Jack

Mitchell, Huth Reynolds LLP, Huntington, New York, for

Amicus Curiae Digital Content Next.

Sara T. Schneider, ArentFox Schiff LLP, Los Angeles,

California, for Amicus Curiae the International Center for

Law & Economics.

Aaron M. Panner, Alex A. Parkinson, Sven E. Henningson,

and Jared M. Stehle, Kellogg Hansen Todd Figel &

Frederick PLLC, Washington, D.C., for Amicus Curiae

Microsoft Corporation.

Brendan P. Cullen and Renata B. Hesse, Sullivan &

Cromwell LLP, Palo Alto, California; Shane M. Palmer,

Sullivan & Cromwell LLP, New York, New York; for

Amicus Curiae Spotify USA Inc..

H. Hunter Bruton, Edward F. Roche, and Noel F. Hudson,

Smith Anderson Blount Dorsett Mitchell & Jernigan LLP,

Raleigh, North Carolina; Jennifer Sturiale, Delaware Law

School, Widener University, Wilmington, Delaware; for

Amici Curiae Civil Procedure and Antitrust Professors.

Justin H. Sanders, Sanders Roberts LLP, Los Angeles,

California, for Amicus Curiae Information Technology &

Innovation Foundation.

Brian D. Wang, Deputy Attorney General; Michael W.

Jorgenson, Supervising Deputy Attorney General; Paula L.

Blizzard, Senior Assistant Attorney General; Rob Bonta,

California Attorney General; Office of the California

Attorney General, San Francisco, California; for Amicus

Curiae the State of California.

6 EPIC GAMES, INC. V. APPLE INC.

Lawrence S. Ebner, Atlantic Legal Foundation, Washington,

D.C.; Alejandro L. Sarria and Bradley E. Markano, Miller &

Chevalier Chartered, Washington, D.C.; for Amicus Curiae

Atlantic Legal Foundation.

Tyler P. Young, Christian J. Ward, and Susanna R. Allen,

Yetter Coleman LLP, Houston, Texas; for Amici Curiae

Law Professors Samuel L. Bray, F. Andrew Hessick, and

Michael T. Morley.

Jonathan M. Redgrave and Gareth T. Evans, Redgrave LLP,

Chantilly, Virginia, for Amicus Curiae Lawyers for Civil

Justice.

Jennifer Daskal and J. Daniel Everson, Venable LLP,

Washington, D.C.; Sarah L. Scott, Venable LLP, Baltimore,

Maryland; for Amicus Curiae the Center for Cybersecurity

Policy and Law.

Adam Gershenson, Cooley LLP, Boston, Massachusetts;

Michelle C. Doolin and Allison W. O’Neill, Cooley LLP,

San Diego, California; Ephraim McDowell, Cooley LLP,

Washington, D.C.; for Amici Curiae Former Federal

Antitrust Enforcers.

R. Trent McCotter, Boyden Gray PLLC, Washington, D.C.;

Drew Hudson, TechNet, Washington, D.C.; Susanna

McDonald and Amy C. Chai, Association of Corporate

Counsel, Washington, D.C.; for Amici Curiae TechNet &

Association of Corporate Counsel.

Calvin House, Gutierrez Preciado & House LLP, Pasadena,

California, for Amicus Curiae Civil Justice Association of

California.

Lawrence J. Spiwak, Phoenix Center for Advanced Legal

and Economic Public Policy Studies, Washington, D.C., for

EPIC GAMES, INC. V. APPLE INC. 7

Amicus Curiae Phoenix Center for Advanced Legal and

Economic Public Policy Studies.

Sanjiv P. Laud, Lucien Wang, and Meredith A. Stewart,

McCurdy Laud LLC, Minneapolis, Minnesota, for Amicus

Curiae Software & Information Industry Association.

Mark G. Weiss, Creighton J. Macy, Kaitlyn E. Barry, and

Stephen T. Loertscher, Baker & McKenzie LLP,

Washington, D.C., for Amicus Curiae ACT | The App

Association.

Gina F. Elliott and Darin M. Sands, Bradley Bernstein Sands

LLP, Pasadena, California, for Amicus Curiae for Chamber

of Progress.

Zac Morgan and Cory Andrews, Washington Legal

Foundation, Washington, D.C., for Amici Curiae

Washington Legal Foundation and TechFreedom.

Catherine S. Simonsen, Shaoul Sussman, and Nicolas A.

Stebinger, Simonsen Sussman LLP, Los Angeles,

California, for Amicus Curiae Y Combinator LLC.

Marie W. L. Martin and Matthew Michaloski, Assistant

Attorneys General; Stanford E. Purser, Solicitor General;

Derek Brown, Utah Attorney General; Office of the Utah

Attorney General, Salt Lake City, Utah; Treg R. Taylor,

Alaska Attorney General, Office of the Alaska Attorney

General, Anchorage, Alaska; Brian L. Schwalb, District of

Columbia Attorney General, Office of the District of

Columbia Attorney General, Washington, D.C.; Theodore E.

Rokita, Indiana Attorney General, Office of the Indiana

Attorney General, Indianapolis, Indiana; Liz Murrel,

Louisiana Attorney General, Office of the Louisiana

Attorney General, Baton Rouge, Louisiana; Dana Nessel,

Michigan Attorney General, Office of the Michigan

8 EPIC GAMES, INC. V. APPLE INC.

Attorney General, Lansing, Michigan; Keith Ellison,

Minnesota Attorney General, Office of the Minnesota

Attorney General, Minneapolis, Minnesota; Raul Torrez,

New Mexico Attorney General, Office of the New Mexico

Attorney General, Santa Fe, New Mexico; Jeff Jackson,

North Carolina Attorney General, Office of the North

Carolina Attorney General, Raleigh, North Carolina; Dan

Rayfield, Oregon Attorney General, Office of the Oregon

Attorney General, Portland, Oregon; Jonathan Skrmetti,

Tennessee Attorney General, Office of the Tennessee

Attorney General, Nashville, Tennessee; Charity R. Clark,

Vermont Attorney General, Office of the Vermont Attorney

General, Montpelier, Vermont; John B. McCuskey, West

Virginia Attorney General, Office of the West Virginia

Attorney General, Charleston, West Virginia; for Amici

Curiae State of Utah, 11 Other States, and the District of

Columbia.

Randy Stutz, American Antitrust Institute, Kensington,

Maryland; John M. Newman, University of Memphis School

of Law, Memphis, Tennessee; for Amicus Curiae American

Antitrust Institute.

Margaret C. MacLean, Lowey Dannenberg PC, White

Plains, New York, for Amici Curiae Consumer Federation

of America and Public Knowledge.

EPIC GAMES, INC. V. APPLE INC. 9

OPINION

M. SMITH, Circuit Judge:

Plaintiff-Appellee Epic Games, Inc. (Epic) sued

Defendant-Appellant Apple, Inc. (Apple) for alleged

antitrust violations related to Apple’s App Store. After a

bench trial, the district court enjoined Apple from certain

anticompetitive business practices. Namely, Apple could

not prohibit App Store developers from using buttons, links,

or other calls to action to encourage customers to make

purchases from the developers rather than Apple. We

affirmed. Apple claimed to comply with the injunction, but

it instead prohibited developers from using buttons, links,

and other calls to action without paying a prohibitive

commission to Apple, and it restricted the design of the

developers’ links to make it difficult for customers to use

them.

The district court found Apple in contempt, and it issued

an order to address Apple’s violations of the injunction. We

affirm the district court’s contempt findings. We reverse and

remand in part the district court’s imposition of civil

contempt sanctions, but we otherwise affirm that order.

Separate from the contempt issues, Apple urges us to vacate

the injunction, citing new cases from the California Court of

Appeal and the U.S. Supreme Court. We reject its

arguments. We also reject its request for a new district judge

on remand.

FACTS AND PRIOR PROCEEDINGS

Epic develops video games, most notably Fortnite. It

also runs the online Epic Games Store to distribute its own

apps and apps belonging to other companies.

10 EPIC GAMES, INC. V. APPLE INC.

Apple developed the iPhone and iPad; the operating

system, iOS; and the App Store. Apple licenses its

intellectual property to developers (like Epic) so they can

build iOS software applications (apps) and distribute them

through the App Store. Developers can earn money off their

apps using the In-App Purchase (IAP) system. With IAP,

users can buy digital goods and services from developers in

the App Store, and in doing so, users pay Apple, which

remits 70% to the developers and keeps 30% for itself as a

commission. 1

Five years ago, Epic sued Apple, alleging claims

pursuant to the Sherman Act, in addition to California’s

Cartwright Act and California’s Unfair Competition Law

(UCL). Epic alleged that Apple could not require developers

like itself to use Apple’s IAP for purchases of digital

products within iOS apps. Epic also alleged that Apple

could not ban developers from using “buttons, external links,

or other calls to action [to] direct customers to purchasing

mechanisms other than” IAP, which could allow them to

avoid Apple’s commission.

After a bench trial, the district court reached a mixed

result. It found in Apple’s favor with respect to the IAP

requirement for purchases within iOS apps but in Epic’s

favor with respect to Apple’s ban on developers directing

customers to non-IAP purchasing mechanisms (i.e., Apple’s

“anti-steering” provisions). See Epic Games, Inc. v. Apple

Inc. (Epic I), 559 F. Supp. 3d 898, 1052–57, 1068–69 (N.D.

Cal. 2021). It dismissed the antitrust claims but concluded

that Apple’s anti-steering provisions violated the UCL by

1

Users can also purchase physical goods from developers using IAP,

although only digital goods and services are at issue here. There is no

commission on purchases of physical goods.

EPIC GAMES, INC. V. APPLE INC. 11

“‘threaten[ing] an incipient violation of an antitrust law’ by

preventing informed choice among users of the iOS

platform.” Id. at 1055 (quoting Cel-Tech Commc’ns, Inc. v.

Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 187 (1999)).

The district court explained its findings in a written order.

Based on those findings, the district court, in relevant

part, “permanently restrained and enjoined” Apple “from

prohibiting developers from . . . including in their apps and

their metadata buttons, external links, or other calls to action

that direct customers to purchasing mechanisms, in addition

to [IAP].” This was memorialized in a separate document

(the Injunction).

Both parties appealed to us, and we affirmed in part,

reversed in part, and remanded. See Epic Games, Inc. v.

Apple, Inc. (Epic II), 67 F.4th 946, 973 (9th Cir. 2023), cert.

denied, 144 S. Ct. 681–82 (2024). In particular, we affirmed

the Injunction. Id. at 1002.

Prior to the Injunction, purchases made off the Apple

platform (linked-out purchases) were not subject to a

commission because Apple did not allow for such purchases.

However, while appealing the Injunction, Apple

contemplated whether to charge a commission on those

purchases, given the Injunction requires Apple to allow for

these transactions they had previously banned.

In May 2023, after our court ruled on the appeal, Apple

examined two proposals. With Proposal 1, Apple would

charge no commission but would restrict what links could

say, what they could look like, and where they could be

located. With Proposal 2, Apple would lift most of those

restrictions but charge a 27% commission on linked-out

purchases. Apple studied the potential revenue

consequences of both proposals and eventually decided that

12 EPIC GAMES, INC. V. APPLE INC.

it would combine the commission from Proposal 2 with the

restrictions from Proposal 1.

In conceiving the 27% commission, Apple took the 30%

commission for the purchases through IAP and applied a

“cost of payments discount” of 3%. 2 Importantly, however,

Apple believed that the 3% discount was too small to lead to

meaningful “developer adoption of link-out.” In a linked-

out purchase, developers would pay more than 30% because

they would pay 27% commission to Apple plus more than

3% to cover the external costs of processing payments. In a

transaction using IAP, developers would pay only Apple’s

30% commission.

Apple also studied the effects of its link restrictions. It

found that “when a link-out happens, there will be some

breakage,” meaning a fraction of “customer[s] [will] drop[]

off during the buy-flow process due to a less seamless

experience” on the developer’s site compared to Apple’s

IAP. Apple calculated that, if it could push breakage above

a certain percentage, “developers reach a tipping point where

they [would] lose more on linking out than they would make

sticking with Apple [I]AP and [paying] the higher

commission.”

Based on these analyses, Apple decided it would adopt

certain restrictions on external links, which were

incorporated into Apple’s “Link Entitlement” program.

Such restrictions included:

1. External payment links had to follow the so-

called “Plain Button style,” meaning the link

2

The 27% commission would be applied to purchases made for a period

of seven days after the consumer followed the link out of the app.

EPIC GAMES, INC. V. APPLE INC. 13

could not be enclosed in a visible shape. The

link could be enclosed in a shape, but it would

not be visible because “[t]he background

surrounding the text must match the

background of [the] app’s page.”

2. External payment links had to follow one of

five templates and could not say anything

else.

3. External payment links could not “be

displayed on any page that is part of an in-app

flow to merchandise or initiate a purchase

using” IAP.

4. Each time a user clicked an external payment

link, the user would be presented with a

warning that they were “about to go to an

external website”; that Apple was “not

responsible for the privacy or security of

purchases made on the web”; that “[a]ny

accounts or purchases made” using the link

would “be managed by the developer”; that

the user’s “App Store account, stored

payment method, and related features, such

as subscription management and refund

requests” would not be available; and that

Apple could not “verify any pricing or

promotions offered by the developer.”

5. External payment links had to be static, not

dynamic, meaning the link could not identify

the user or automatically log that user into

their account after clicking the link.

14 EPIC GAMES, INC. V. APPLE INC.

6. External payment links could not be used by

participants in Apple’s Video Partner

Program (VPP) or News Partner Program

(NPP).

7. External payment must “[b]e displayed no

more than once in app, on no more than one

app page the user navigates to . . . in a single,

dedicated location on such page, and may not

persist beyond that page[.]”

We will generally refer to these restrictions as “link

design restrictions,” despite the fact that they restrict more

than link design. In its App Review Guidelines, Apple

determined that developers would be required to participate

in the program if they intended “to include a link to the

developer’s website that informs users of other ways to

purchase digital goods or services.”

Apple put its plan (27% commission and Link

Entitlement program) into action several months after our

court issued its decision affirming the Injunction. The

Supreme Court denied Apple’s certiorari petition on January

16, 2024, see Apple Inc. v. Epic Games, Inc., 144 S. Ct. 681

(2024), and the plan went into effect later that same day.

Apple filed a Notice of Compliance with the district court,

which “summarize[d]” the changes that it made to comply

with the Injunction. The Injunction went into effect the next

day.

Two months later, Epic moved to enforce the Injunction,

contending Apple was not in compliance. The district court

then set an evidentiary hearing for May 2024. That hearing

lasted six court days and involved testimony from seven

witnesses. The district court “became increasingly

EPIC GAMES, INC. V. APPLE INC. 15

concerned that Apple was not only withholding critical

information about its business decision for complying with

the Injunction, but also that it had likely presented a reverse-

engineered, litigation-ready justification for actions which

on their face looked to be anticompetitive.”

In light of its concerns, the district court “ordered the

production of all Apple’s documents relat[ed] to the

decision-making process leading to the link entitlement

program and associated commission rates.” Apple asserted

privilege over many of those documents, but most of its

privilege claims were eventually withdrawn or rejected. In

September 2024, Apple filed a motion for relief from the

Injunction pursuant to Fed. R. Civ. P. 60(b). After Apple’s

document production concluded, the evidentiary hearing

resumed in February 2025. The second hearing lasted three

days and involved testimony from five witnesses.

On April 30, 2025, the district court issued an omnibus

order (the April 30 Order). See Epic Games, Inc. v. Apple

Inc. (Epic III), 781 F. Supp. 3d 943 (N.D. Cal. 2025). It

denied Apple’s motion to set aside the Injunction. See id. at

983–89. It granted Epic’s motion to enforce the Injunction

and held Apple in civil contempt for noncompliance with the

Injunction. See id. at 989–95. The district court noted that

as of the May 2024 hearing, Apple provided no evidence of

developer adoption rates, with no evidence that any large

developer was willing to comply with Apple’s conditions to

offer linked-out purchases. See id. at 982 & n.50. It

permanently enjoined Apple from:

1. Imposing any commission or any fee on

purchases that consumers make outside an

app, and as a consequence thereof, no reason

exists to audit, monitor, track or require

16 EPIC GAMES, INC. V. APPLE INC.

developers to report purchases or any other

activity that consumers make outside an app;

2. Restricting or conditioning developers’ style,

language, formatting, quantity, flow or

placement of links for purchases outside an

app;

3. Prohibiting or limiting the use of buttons or

other calls to action, or otherwise

conditioning the content, style, language,

formatting, flow or placement of these

devices for purchases outside an app;

4. Excluding certain categories of apps and

developers from obtaining link access;

5. Interfering with consumers’ choice to

proceed in or out of an app by using anything

other than a neutral message apprising users

that they are going to a third party-site; and

6. Restricting a developer’s use of dynamic

links that bring consumers to a specific

product page in a logged-in state rather than

to a statically defined page, including

restricting apps from passing on product

details, user details or other information that

refers to the user intending to make a

purchase.

Id. at 1003–04 (footnote omitted). The district court also

resolved some outstanding privilege disputes and other

issues. See id. at 995–1002. Finally, it referred Apple and

one of its officers for criminal investigation. See id. at 1005.

Apple timely appeals from the April 30 Order.

EPIC GAMES, INC. V. APPLE INC. 17

STANDARD OF REVIEW

“This court reviews a district court’s contempt finding

and imposition of sanctions for abuse of discretion.” Stone

v. City & Cnty. of San Francisco, 968 F.2d 850, 856 (9th Cir.

1992), as amended on denial of reh’g (Aug. 25, 1992).

However, “[w]e review a district court’s factual findings in

connection with a contempt order for clear error.” Coleman

v. Newsom, 131 F.4th 948, 956 (9th Cir. 2025). Our court

has been less than clear about the standard of review

applicable to privilege calls. See Greer v. Cnty. of San

Diego, 127 F.4th 1216, 1222 (9th Cir. 2025). Because we

would affirm the district court’s privilege analysis regardless

of the standard of review, we will not resolve the apparent

intra-circuit split over the correct standard of review.

Finally, we review “the denial of a Rule 60(b) motion for

relief from judgment” “for abuse of discretion.” Marroquin

v. City of Los Angeles, 112 F.4th 1204, 1211 (9th Cir. 2024).

ANALYSIS

The district court found Apple in contempt for violating

the Injunction, and in the April 30 Order, it issued specific

restraints on Apple’s conduct pursuant to the Injunction.

The district court did not abuse its discretion by finding

Apple in contempt. The district court’s restrictions in the

April 30 Order are affirmed in part and reversed and

remanded in part. Despite Apple’s arguments to the

contrary, most of the restrictions imposed by the district

court align with the Injunction, although they are overbroad

in some respects. However, the commission prohibition is

not an appropriately cabined civil contempt sanction.

Accordingly, the April 30 Order is reversed in relevant part

and remanded to the district court. We otherwise affirm the

April 30 Order.

18 EPIC GAMES, INC. V. APPLE INC.

Separately, Apple contends that the Injunction must be

vacated in light of recent authority from the California Court

of Appeal and the U.S. Supreme Court. These arguments

lack merit. We also reject Apple’s request that a different

district judge be assigned to the case on remand.

I. Jurisdiction

According to Apple, we have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291. Apple explains that the

April 30 Order is a final order for the purposes of § 1291 that

disposes of the post-judgment contempt proceeding and

Apple’s motion to set aside the judgment. Epic does not

disagree. We conclude that we have jurisdiction over this

appeal because the Injunction and April 30 Order were

drafted as final orders, despite our remand in part of the April

30 Order to clarify some of its provisions, as detailed below.

The outcome of the appeal does not change our jurisdictional

status.

II. The District Court’s Contempt Findings and

Analysis

Apple makes three methodological challenges to the

district court’s contempt analysis. It contends that the

district court improperly: (i) relied on the Injunction’s spirit;

(ii) considered evidence of Apple’s bad faith; and

(iii) considered privileged material in making its rulings.

Each methodological challenge fails, and we affirm the

contempt findings on the merits. The district court did not

abuse its discretion by finding Apple in contempt.

A. The Injunction’s Spirit

“Civil contempt . . . consists of a party’s disobedience to

a specific and definite order by failure to take all reasonable

steps within the party’s power to comply.” In re Dual-Deck

EPIC GAMES, INC. V. APPLE INC. 19

Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695

(9th Cir. 1993). “In contempt proceedings[,] . . . a decree

will not be expanded by implication or intendment beyond

the meaning of its terms,” but those terms must be “read in

the light of the issues and the purpose for which the suit was

brought.” Terminal R.R. Ass’n of St. Louis v. United States,

266 U.S. 17, 29 (1924).

In Institute of Cetacean Research v. Sea Shepherd

Conservation Society (Sea Shepard), 774 F.3d 935 (9th Cir.

2014), we determined that because “it is proper to observe

the objects for which the relief was granted,” courts can

“find a breach of the decree in a violation of the spirit of the

injunction, even though its strict letter may not have been

disregarded.” Id. at 949 (quoting John B. Stetson Co. v.

Stephen L. Stetson Co., 128 F.2d 981, 983 (2d Cir. 1942)).

Thus, pursuant to Sea Shepard, the district court did not

err in concluding that courts “look to the spirit of the

injunction when a litigant applies a dubiously literal

interpretation of the injunction, particularly where that

interpretation is designed to evade the injunction’s goals.”

Epic III, 781 F. Supp. 3d at 990–91. Apple resists this

conclusion, arguing that Sea Shepherd “does not apply when

. . . the injunction’s plain terms do not proscribe the conduct

at issue, and there is no contention of aiding and abetting.”

The first argument fails because, in the above-quoted part of

Sea Shepherd, we assumed that the strict letter of the

injunction was not violated. See Sea Shepherd, 774 F.3d at

949. The second argument fails because, although Sea

Shepherd was an aiding-and-abetting case, the above-quoted

portion says nothing about aiding and abetting. Indeed,

courts must prevent defendants from evading injunctions

even when they have not enlisted an aider or abettor. In

20 EPIC GAMES, INC. V. APPLE INC.

short, Sea Shepherd means what it says: parties may be held

in contempt for violating the spirit of an injunction.

Sea Shepard’s holding makes practical sense. Were

“narrow literalism . . . the rule of interpretation, injunctions

w[ould] spring loopholes, and parties in whose favor

injunctions run w[ould] be inundating courts with requests

for modification in an effort to plug the loopholes.”

Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 906 (7th

Cir. 1995) (internal citations omitted).

Next, Apple argues that the district court violated Fed.

R. Civ. P. 65(d)(1). Pursuant to that rule, “[e]very order

granting an injunction . . . must . . . state its terms

specifically; and . . . describe in reasonable detail—and not

by referring to the complaint or other document—the act or

acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(B), (C).

The district court complied with this rule. The Injunction

was filed as a separate docket entry, and it does not reference

another document, including the district court’s opinion

evaluating liability. Instead, it merely notes that the

Injunction is “consistent with its findings of fact and

conclusions of law.” The Injunction also stated its terms

specifically and in reasonable detail: it enjoined Apple, in

relevant part, “from prohibiting developers from . . .

including in their apps and their metadata buttons, external

links, or other calls to action that direct customers to

purchasing mechanisms, in addition to In-App Purchasing.”

It did not exhaustively enumerate the ways that Apple might

design the App Store to prohibit those calls to action, but

Rule 65 does not require it to do so.

Apple’s position also breaks down because Rule 65(d)

regulates only the “contents and scope of every injunction

and restraining order.” Fed. R. Civ. P. 65(d) (citation

EPIC GAMES, INC. V. APPLE INC. 21

modified). It does not purport to limit what materials courts

may consider during contempt proceedings to interpret the

plain terms of the Injunction. In fact, it says nothing about

contempt. Even if district courts holding contempt

proceedings could consider only the materials identified in

Rule 65, that would make no difference here. Rule 65

applies to “orders granting injunctions,” not just the

injunctions themselves.

B. Apple’s Bad Faith

Apple first disputes that its bad faith was legally relevant

to the court’s contempt determination and then argues that

the district court erred by finding that it acted in bad faith.

The district court did not err in deciding that it could

consider evidence of Apple’s bad faith, nor did it clearly err

in finding that Apple acted in bad faith.

Beginning with the first challenge, Apple cannot obtain

reversal because “[t]he doctrine of invited error prevents a

defendant from complaining of an error that was his own

fault.” United States v. Magdaleno, 43 F.4th 1215, 1219 (9th

Cir. 2022) (quoting United States v. Myers, 804 F.3d 1246,

1254 (9th Cir. 2015)). In opposing Epic’s motion to enforce

the Injunction, Apple argued that Epic was required to prove

“that Apple did not make good-faith efforts to substantially

comply with the Injunction,” arguing that “Epic ha[d] not

adduced any relevant evidence to that effect” and “the

undisputed evidence establishe[d] Apple’s good-faith

compliance with the Injunction.” Having put its good faith

at issue, it cannot fault the district court for considering it.

Even if Apple had preserved the point, there was no

error. The standard for evaluating contempt “is generally an

objective one,” in that “a party’s subjective belief that she

was complying with an order ordinarily will not insulate her

22 EPIC GAMES, INC. V. APPLE INC.

from civil contempt if that belief was objectively

unreasonable.” Taggart v. Lorenzen, 587 U.S. 554, 561

(2019) (emphasis in original). However, there is a “narrow”

exception: a party should not be held in contempt if “[their]

action appears to be based on a good faith and reasonable

interpretation of (the court’s order).” Sea Shepard, 774 F.3d

at 953 (quoting Vertex Distrib., Inc. v. Falcon Foam

Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982)). Because

this exception rises and falls on an objective inquiry (i.e.,

whether a defendant’s interpretation is “reasonable”), the

exception is not helpful for Apple, which based its conduct

on an objectively unreasonable interpretation of the

Injunction. See id. That being said, the exception shows that

good faith can be relevant to a court’s contempt evaluation,

refuting Apple’s argument that its “subjective motivations

ha[ve] no bearing on whether Apple can be held in civil

contempt.”

Good faith, when coupled with an objectively reasonable

interpretation of a court’s order, can be enough to avoid a

contempt finding. Here, even assuming that Apple’s

interpretation of the Injunction is reasonable (it is not),

evidence of Apple’s bad faith negates a good-faith defense.

In any case, the Supreme Court has acknowledged that “civil

contempt sanctions may be warranted when a party acts in

bad faith.” Taggart, 587 U.S. at 561–62.

Apple offers three reasons that the district court clearly

erred in its April 30 Order in finding that Apple acted in bad

faith, “unfairly impugn[ing] its motives when responding to

the original injunction.” None of them is persuasive.

First, the district court noted that Apple “hid its decision-

making process from the Court,” Epic III, 781 F. Supp. 3d at

960, but Apple argues that it filed a “transparent ‘Notice of

EPIC GAMES, INC. V. APPLE INC. 23

Compliance’” about its compliance plans. Apple further

argues that it was not required to provide additional details

about its compliance plan because Epic did not seek

discovery prior to the first evidentiary hearing. However, as

Epic counters, Apple has ignored the district court’s finding

that Apple “attempted to mislead” in its Notice of

Compliance and May 2024 hearing with “pretextual”

justifications. See Epic III, 781 F. Supp. 3d at 971–72.

Second, the district court noted that, “[u]ltimately,

Apple’s 2024 response to the Injunction was the most

anticompetitive option” among those options that Apple

considered. Id. at 962. Apple argues that the district court

“penalized Apple for choosing what [it] understood to be the

most advantageous option for its business and shareholders,”

which is not evidence of bad faith. But the district court did

not find Apple in contempt because it picked the most

advantageous of several purportedly compliant options.

Instead, it found that “at every step Apple considered

whether its actions would comply, and at every step Apple

chose to maintain its anticompetitive revenue stream over

compliance.” Epic III, 781 F. Supp. 3d at 992. It also found

that Apple “opted to construct a program that nullified the

revenue impact of the Injunction by prohibiting any viable

alternative.” Id. at 991.

Third, the district court found that the Analysis Group’s

“recommendation of a commission rate on link-out

transactions as the basis for [Apple’s] commission

determination [was] entirely manufactured, and Apple’s

reliance thereon [was] a sham.” Id. at 993. According to

Apple, Apple hired the consulting firm Analysis Group,

which started in the spring of 2023, to explore how Apple

might “fairly charge for the value that it provides to

developers . . . while implementing a linkout to allow [users]

24 EPIC GAMES, INC. V. APPLE INC.

to purchase from the web.” Yet, the district court found that

the “report did not materially factor into Apple’s decision-

making process.” Epic III, 781 F. Supp. 3d at 993. This

factual finding is not clearly erroneous given that, as the

district court explained, the record suggests that Apple

picked its commission rate in July 2023, and the report is

dated January 2024. See id. at 967–968.

Regardless, the district court found Apple in contempt

for other reasons. Specifically, it found that Apple “willfully

chose to ignore the Injunction, willfully chose to create and

impose another supracompetitive rate and new restrictions,

and thus willfully violated the Injunction.” Id. at 992.

C. Apple’s Allegedly Privileged Materials

Apple’s last methodological challenge to the district

court’s contempt findings is part legal and part factual. On

the law, Apple argues that the district court applied the

wrong test for assessing communications that involve both

legal and business advice. We disagree.

We held in In re Grand Jury, 23 F.4th 1088 (9th Cir.

2021), “that the primary-purpose test applies to attorney-

client privilege claims for dual-purpose communications.”

Id. at 1092. “Under the ‘primary purpose’ test, courts look

at whether the primary purpose of the communication is to

give or receive legal advice, as opposed to business or tax

advice.” Id. at 1091. However, Grand Jury left open

whether legal advice must be “the primary purpose” or just

“a primary purpose.” Id. at 1094 (emphases in original).

The latter test was adopted by the D.C. Circuit in In re

Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

According to Apple, we should apply the Kellogg test to

dual-purpose communications, as those at issue here.

EPIC GAMES, INC. V. APPLE INC. 25

We decline Apple’s invitation to apply Kellogg in this

case. As in Grand Jury, we find “no need to adopt or apply

the Kellogg formulation of the primary-purpose test here.”

23 F.4th at 1095. First, although one can “see the merits of

the reasoning in Kellogg,” Apple cites nothing to change our

court’s conclusion that “[n]one of [its] other sister circuits

have openly embraced Kellogg yet.” Id. at 1094. Second,

the “Kellogg test would only change the outcome of a

privilege analysis in truly close cases, like where the legal

purpose is just as significant as a non-legal purpose.” Id. at

1095.

On these facts, Apple has not presented a close privilege

call, even reviewing de novo. Apple’s briefing addresses

only two documents in any detail. First, the district court

relied on an “internal presentation” that “proposed two

options for achieving compliance with the Injunction”

entitled “Proposed responses to Epic injunction.” Second,

the district court relied on a June 2023 presentation titled

“Epic Injunction Implementation Proposal.” While some of

these documents contained some privileged

communications, those communications were redacted.

Among what remains, legal advice was not the primary

purpose of the communications. Rather, the

communications largely relate to Apple’s business

personnel, and their consideration of how the company could

offer linked-out purchases without losing revenue. Apple

contends that these documents “were ‘prompted by a Court

order.’” But whether Kellogg applies or not, Apple must do

more than show the “dual-purpose communication was

made ‘because of’ the need to give or receive legal advice.”

Grand Jury, 23 F.4th at 1092. The fact that the Injunction

prompted, or caused, these communications is not enough.

26 EPIC GAMES, INC. V. APPLE INC.

Next, Apple argues that one of these documents

contained a slide with a screenshot of the Injunction and the

other contained a slide listing some “[r]equirements” and

“[k]ey elements under consideration” from the Injunction.

But neither slide shows that receiving legal advice was even

a primary purpose, much less the primary purpose. Both

slides were at the beginning of the presentation, and in the

following slides, Apple analyzed how various compliance

options would affect its revenue, not the strength or risk of

its legal positions. In context, these initial slides were

merely an introduction to the bulk of the presentation.

Because the unredacted parts of the following slides

consisted of classic business advice regarding business risks,

there was no error in the district court’s privilege analysis.

D. The District Court’s Contempt Findings

Having resolved Apple’s methodological arguments, we

turn to the merits of the district court’s contempt analysis.

Civil contempt must be shown by clear and convincing

evidence. See In re Dual-Deck, 10 F.3d at 695. Under the

Injunction, Apple could not “prohibit[] developers from . . .

including in their apps and their metadata buttons, external

links, or other calls to action that direct customers to

purchasing mechanisms” outside of Apple’s App Store.

Ultimately, the parties’ dispute turns on the meaning of the

key word “prohibit,” which can be interpreted to mean “[t]o

prevent, preclude, or severely hinder.” Prohibit, Black’s

Law Dictionary (12th ed. 2024).

i. Apple’s 27% commission

The first question is whether charging a 27%

commission has a prohibitive effect, in violation of the

Injunction. We agree with the district court that it does. On

purchases made through IAP, Apple charges 30%

EPIC GAMES, INC. V. APPLE INC. 27

commission. On linked-out purchases, it charged 27%.

However, Apple knew that processing linked-out purchases

would cost developers more than 3%. As the district court

found, “Apple willfully set a commission rate that in practice

made all alternatives to [its platform] economically non-

viable.” Epic III, 781 F. Supp. 3d at 992. The district court

found no evidence that any developer chose to direct

customers to their own purchasing mechanisms and pay

Apple’s 27% commission in doing so. See id. at 982.

Apple is not the first litigant to try burdening what it

could not prohibit. Two hundred years ago, Congress

created the Bank of the United States, and the state of

Maryland tried to tax it. See M’Culloch v. Maryland, 17 U.S.

316, 317–18 (1819). The Supreme Court saw through this

ploy: Maryland could not tax the bank because “the power

to tax involves the power to destroy[.]” Id. at 431. In the

same way, Apple has demonstrated that charging

commissions on linked-out purchases gives it the power to

prohibit them. “An unlimited power to tax involves,

necessarily, a power to destroy; because there is a limit

beyond which no institution and no property can bear

taxation.” Id. at 327. Once Apple’s commission on those

transactions was large enough, no rational developer would

offer them. The Injunction prohibits that kind of conduct.

Apple responds that the Injunction says nothing about

commissions. But Apple does not “have an immunity from

civil contempt because the plan or scheme which [it] adopted

was not specifically enjoined.” McComb v. Jacksonville

Paper Co., 336 U.S. 187, 192 (1949). Having

“experiment[ed] with disobedience of the law,” id., it must

now bear the burden of being found in contempt. If Apple

was correct that “[c]ivil contempt [could be] avoided today

by showing that the specific plan [it] adopted . . . was not

28 EPIC GAMES, INC. V. APPLE INC.

enjoined,” the district court would have to enter “a new”

injunction targeting Apple’s “particular plan.” Id.

“Thereafter,” Apple could “work out a plan that was not

specifically enjoined” and “once more obtain[]”

“[i]mmunity . . . because the new plan was not specifically

enjoined.” Id. at 192–93. By doing so, “a whole series of

wrongs [would be] perpetrated and [the Injunction would]

go[] for naught.” Id. at 193.

Apple emphasizes that, in its view, the district court

expressly permitted it to charge a commission on linked-out

purchases. See Epic I, 559 F. Supp. 3d at 1042. Apple

overreads the district court’s decision. The language that

Apple quotes from the district court’s liability opinion is

pulled from its discussion of in-app purchases and

alternatives to IAP that would still allow Apple to

collect a commission. 3 The district court did not mention a

commission for linked-out purchases, presumably because

linked-out purchases were not permitted at that time. The

same is true of our previous opinion. See generally Epic II,

67 F.4th 946.

3

In Epic I, the district court assessed the market “for in-app purchases

of in-app content.” 559 F. Supp. 3d at 1042. Epic argued that “Apple

[should] be barred from restricting or deterring in any way ‘the use of in-

app payment processors other than IAP.’” Id. The district court rejected

this argument because “IAP is the method by which Apple collects its

licensing fee from developers,” and “[e]ven in the absence of IAP, Apple

could still charge a commission on developers”; “[i]t would simply be

more difficult for Apple to collect that commission.” Id. The court

explained that, “in such circumstances[,] [] Apple may rely on imposing

and utilizing a contractual right to audit developers annual accounting to

ensure compliance with its commissions, among other methods.” Id. at

1042 n.617. This discussion was aimed at the practical reality of using

IAP versus another commission method for in-app purchases of in-app

content.

EPIC GAMES, INC. V. APPLE INC. 29

That being said, it would be difficult to say that all

commissions violate the Injunction, and, as discussed below,

we decline to do so. 4 However, Apple did not charge any

commission; it charged a prohibitive commission. The

district court did not abuse its discretion for finding Apple in

contempt for imposing it.

ii. Apple’s link design restrictions

The next question is whether Apple prohibited users

from making purchases on developers’ sites, in violation of

the Injunction, with its restrictions on link design in the Link

Entitlement Program. There are several restrictions at issue,

and although we address each separately, all violate the

Injunction. The first two restrictions violate the strict letter

of the Injunction. For the remaining restrictions, we will

assume arguendo that Apple did not violate the strict letter

of the Injunction. Even so, these restrictions violated the

Injunction’s “implicit command to refrain from action

designed to defeat it.” NLRB v. Deena Artware, Inc., 361

U.S. 398, 413 (1960) (Frankfurter, J., concurring).

First, the Injunction requires Apple to allow developers

to use both “links” and “buttons.” Apple did not allow

buttons: it allowed developers to use something it calls a

“plain button,” but the “plain button” is no button at all. A

plain button “may not be enclosed in a shape that uses a

contrasting background fill”; instead, the “background

surrounding text must match the background of [the] app’s

page.” Thus, the alleged “button” is invisible. Because the

4

In its April 30 Order, the district court seems to indirectly acknowledge

that the Injunction allows Apple to charge some commission on linked-

out purchases, but it explains that Apple lost the “opportunity” to

“valu[e] its intellectual property” given its “retroactive[] justif[ication of

its] desired end result.” Epic III, 781 F. Supp. 3d at 993.

30 EPIC GAMES, INC. V. APPLE INC.

Injunction requires Apple to permit both “buttons” and

“links,” merely making the link, not the button, visible does

not comply with the Injunction; the Injunction contemplates

both “buttons” and “links,” not one of the two.

Second, beyond “buttons” and “links,” the Injunction

requires Apple to permit “other calls to action.” Apple did

not do so. Developers can use only five different templates,

and these templates are essentially links. Each contains a

single phrase like “Lower price offered” or “Buy for

$X.XX” and the link itself. Whether these templates are

characterized as “buttons” or “links,” the Injunction permits

developers to use “other calls to action.” By limiting

developers to particular, limited templates, Apple violated

the Injunction.

Third, Apple requires that external purchase links “[n]ot

be displayed on any page that is part of an in-app flow to

merchandise or initiate a purchase using in-app purchase.”

For example, according to the district court, “if an app has

an item shop where a user could purchase a digital product

. . . nowhere in that shop could the external purchase link

appear.” Epic III, 781 F. Supp. 3d at 971. As a result,

external purchase links never appear where users naturally

expect to see their purchase options and would find them

most useful: at the time of purchase. In practical effect at

least, this restriction prohibited linked-out purchases.

Fourth, Apple deployed a so-called “scare screen.”

Before users could use an external purchase link, they would

be warned in large, bold font that they were “about to go to

an external website” and that “Apple is not responsible for

the privacy or security of purchases made on the web.” The

record confirms that Apple designed the scare screen to

prevent external purchases. It chose the phrase “external

EPIC GAMES, INC. V. APPLE INC. 31

website” because it “sounds scary.” It used the developer’s

name, rather than the app name, to make the screen “even

worse.” It discussed how to make the screen “scarier” and

how to “‘scare’ users a bit.” By engineering this screen to

prevent users from completing linked-out purchases, Apple

engaged in conduct designed to defeat the Injunction.

Fifth, Apple required developers to use static URLs

rather than dynamic URLs. Clicking dynamic links can

automatically log a user into their account; with static links,

the user must log in manually. Yet again, the record shows

that Apple designed the purchasing experience to make

external links as hard to use as possible. This flies in the face

of the Injunction’s spirit. As the district court found,

“Apple’s sensitivity analyses of breakage reveal that Apple

was modeling precisely the amount of friction needed in a

transaction to ensure that link-out transactions were not

viable for a developer.” Epic III, 781 F. Supp. 3d at 994. It

created “an ensemble of requirements that significantly

reduces developers’ ability to steer consumers to any

competitive, favorable alternatives.” Id.

Apple responds that it adopted all these restrictions to

advance users’ privacy and security. This is irrelevant to the

contempt analysis here. Whatever the Injunction prohibited,

Apple must not do.5 In any event, the district court found

that Apple’s privacy and security justifications are

pretextual, and there was no clear error in its ruling. See Epic

III, 781 F. Supp. 3d at 972. For example, one of Apple’s

5

Indeed, for contemnors like Apple who “are not unwitting victims of

the law” but “took a calculated risk when under the threat of contempt,”

and “where as here the aim is remedial and not punitive, there can be no

complaint that the burden of any uncertainty in the decree is on [Apple’s]

shoulders.” McComb, 336 U.S. at 193.

32 EPIC GAMES, INC. V. APPLE INC.

witnesses testified that he could think of no other reason to

use a plain, link-style “button” other than to stifle

competition. See id. at 973. As another example, Apple

claimed that dynamic links were dangerous because they

could be used to pass along private information, but Apple

allows developers to set up dynamic links for purposes other

than linked-out purchases. See id. at 979. Apple offers no

credible reason for its restrictions on external purchase links.

Accordingly, the district court did not abuse its

discretion by holding Apple in contempt for imposing its

link design restrictions.

III. The District Court’s Contempt Sanctions

The April 30 Order imposes sanctions for Apple’s

contempt by listing six proscriptive restrictions on Apple’s

conduct. Most of them restate (albeit more specifically)

Apple’s existing obligations under the Injunction. That

being said, some parts of the April 30 Order’s restrictions are

overbroad, and the commission prohibition does not qualify

as a civil contempt sanction in its present form. As outlined

below, we modify part of the April 30 Order and remand to

the district court for further modification.

We reject the rest of Apple’s challenges. Excluding the

reversed portions of the April 30 Order, some of Apple’s

challenges should have been, but were not, raised when

Apple appealed the Injunction. Moreover, to the extent that

they are not waived, those challenges fail on the merits. The

district court also did not deprive Apple of due process. We

therefore affirm the balance of the April 30 Order.

EPIC GAMES, INC. V. APPLE INC. 33

A. The April 30 Order’s Permanent Restriction on

Apple’s Link Design Restrictions

The court frames its April 30 Order as a civil contempt

order. See Epic III, 781 F. Supp. 3d at 1002–04. However,

Apple argues that “[t]he district court [improperly] imposed

a new and far broader injunction . . . under the guise of

exercising its civil contempt power.” According to Apple,

the April 30 Order’s “new” prohibitions are unjustified. It

argues that “[t]he[] new restrictions are inherently punitive

and cannot be imposed using the non-punitive civil contempt

power, no matter the court’s findings.” We agree with Apple

only in part. We begin with the April 30 Order’s restrictions

related to Apple’s link design restrictions, which we

conclude largely do no more than coerce Apple to comply

with the Injunction, and thus, do not abuse the district court’s

discretion.

When a defendant is in contempt, a district court can

“‘coerc[e] the defendant to do’ what a court had previously

ordered [it] to do.” Turner v. Rogers, 564 U.S. 431, 441

(2011) (first alteration in original) (quoting Gompers v.

Buck’s Stove & Range Co., 221 U.S. 418, 442 (1911)).

“District courts have broad equitable power to order

appropriate relief in civil contempt proceedings.” Sec. &

Exch. Comm’n v. Hickey, 322 F.3d 1123, 1128 (9th Cir.

2003), amended on denial of reh’g, 335 F.3d 834 (9th Cir.

2003). Even so, we “review the court’s exercise of that

power for an abuse of discretion.” Id.

Applying these standards, we review the restrictions

from the April 30 Order. First, the district court enjoins

Apple from “[r]estricting or conditioning developers’ style,

language, formatting, quantity, flow or placement of links

for purchases outside an app.” Epic III, 781 F. Supp. 3d at

34 EPIC GAMES, INC. V. APPLE INC.

1003. The district court did not necessarily abuse its

discretion with this restriction. Prohibiting Apple from

limiting developers to “plain buttons” and to the five

templates is necessary to coerce compliance with the

Injunction, by ensuring that developers can place their

buttons, links, and other calls to action in the purchase flow.

However, part of this restriction is too broad. As Apple

argues, if there are no limits to developer links, “developers

[can] create link-out mechanisms that so elevate the external

link over Apple’s IAP mechanism—e.g., by putting the

external link in large and noticeable font and the IAP link in

small or near-unreadable font—as to trample Apple’s right

to offer IAP entirely.” Under the Injunction, Apple cannot

undermine developers’ right to offer linked-out purchases,

but that does not mean that developers can trample Apple’s

payment option either. Even under the district court’s broad

equitable power, allowing developers to muzzle Apple’s

messaging is not necessary to protect or give life to the

Injunction. After all, the Injunction was intended to

eliminate barriers “prevent[ing] [users] from making

informed choices.” Epic I, 559 F. Supp. 3d at 1055.

Accordingly, we modify the April 30 Order so that,

where both Apple and a developer offer a purchase option,

Apple may restrict the developer from placing its buttons,

links, or other calls to action in more prominent fonts, larger

sizes, larger quantities, and more prominent places than

Apple uses for its own buttons, links, or other calls to action.

But Apple must let developers place their buttons, links, or

other calls to action in at least the same fonts, sizes,

quantities, and places as Apple’s own, and the district court’s

prohibition on “language” restrictions must not include

Apple’s typical restrictions (if any) to ensure that its general

EPIC GAMES, INC. V. APPLE INC. 35

content standards are upheld by limiting offensive language

and similar portrayals.

Second, Apple cannot “[p]rohibit[] or limit[] the use of

buttons or other calls to action, or otherwise condition[] the

content, style, language, formatting, flow or placement of

these devices for purchases outside an app.” Epic III, 781 F.

Supp. 3d at 1003. This restriction is nearly identical to the

previous one, except that it applies to “buttons” and “other

calls to action,” rather than “links.” Because the Injunction

applies equally to “buttons,” “links,” and “other calls to

action,” we modify this restriction the same way as the

previous one.

Third, Apple cannot “exclud[e] certain categories of

apps and developers from obtaining link access.” Epic III,

781 F. Supp. 3d at 1003. In effect, this restriction means that

Apple cannot exclude developers in the VPP and NPP

programs. 6 However, the district court found in the April 30

Order that excluding these developers “does not itself

constitute a violation of the Injunction.” Id. at 994 n.67.

Although the district court found that this exclusion

“highlight[ed] Apple’s all-or-nothing approach,” id., it did

not find that allowing VPP and NPP developers to use

external links is necessary to enforce the Injunction, see id.

at 993–995, 1002–04. Without more, imposing this

restriction was an abuse of discretion. This problem,

however, may be cured if the district court finds against

Apple on either of the two issues that it did not consider:

whether the exclusion violated the Injunction, or whether

enjoining it was necessary to protect and give life to the

6

Developers in these programs have a standard commission rate of 15%

rather than Apple’s standard 30% IAP commission.

36 EPIC GAMES, INC. V. APPLE INC.

Injunction. We remand to allow the district court to modify

the April 30 Order (or not) depending on its findings.

Fourth, Apple is prohibited from “[i]nterfering with

consumers’ choice to proceed in or out of an app by using

anything other than a neutral message apprising users that

they are going to a third-party site.” Id. at 1003. Such

conduct is prohibited by the Injunction. Apple’s “scare

screen” is, at best, designed to evade that rule. 7 See supra

Section II.D. The district court permitted Apple to use a

neutral message apprising users that they are leaving the App

Store, meaning that the only banned messages are those that

would effectively prohibit linked-out purchases. Thus, this

fifth restriction is limited to coercing compliance with the

Injunction.

Fifth, Apple cannot “[r]estrict[] a developer’s use of

dynamic links that bring consumers to a specific product

page in a logged-in state rather than to a statically defined

page[.]” Epic III, 781 F. Supp. 3d at 1004. Because Apple’s

static-link restriction violates the Injunction, this restriction

does nothing more than more specifically enjoin what the

Injunction already generally enjoined. See supra Section

II.D.

B. The April 30 Order’s Permanent Restriction on

Apple’s Ability to Charge a Commission

We review the sixth restriction (the commission

prohibition) pursuant to a separate analysis. Under the April

30 Order, Apple cannot “[i]mpos[e] any commission or any

fee on purchases that consumers make outside an app[.]”

7

As the district court noted, Apple “does not require developers selling

physical goods to display any warning at all before users proceed to make

a payment with a third-party payment solution.” Id. at 974.

EPIC GAMES, INC. V. APPLE INC. 37

Epic III, 781 F. Supp. 3d at 1003. Apple argues that “[t]he

district court’s sweeping new zero-commission rule . . . is

not tailored to Epic’s claimed harm[ and] improperly

imposes a punitive sanction.” We agree.

In our view, as the April 30 Order is written, it is more

like a punitive criminal contempt sanction than a civil

contempt sanction or modification of the Injunction. The

biggest problem with the commission prohibition is that it

permanently prohibits the compensation that Apple can

receive for linked-out purchases of digital products,

regardless of whether the commission is itself prohibitive.

“To determine whether contempt sanctions are civil or

criminal, we examine ‘the character of the relief itself.’”

Parsons v. Ryan, 949 F.3d 443, 455 (9th Cir. 2020) (quoting

Int’l Union, United Mine Workers of Am. v. Bagwell, 512

U.S. 821, 828 (1994)). “Civil as distinguished from criminal

contempt is a sanction to enforce compliance with an order

of the court or to compensate for losses or damages sustained

by reason of noncompliance.” McComb, 336 U.S. at 191.

“The difference between criminal and civil contempt is

in the intended effects of the court’s punishment.” United

States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980). A

contempt remedy is “punitive and criminal if it is imposed

retrospectively for a ‘completed act of disobedience,’ such

that the contemnor cannot avoid or abbreviate the

confinement through later compliance.” Bagwell, 512 U.S.

at 828–29 (citation modified) (quoting Gompers, 221 U.S. at

443); see also Powers, 629 F.2d at 627 (“[Criminal

contempt] serves to vindicate the authority of the court and

does not terminate upon compliance with the court’s order.

The punishment is unconditional and fixed.”).

38 EPIC GAMES, INC. V. APPLE INC.

On the other hand, a remedy is civil—and may be

imposed without a jury trial or proof beyond a reasonable

doubt—if it is meant to coerce the contemnor into complying

with an order or compensate someone else for losses caused

by the contempt. See Bagwell, 512 U.S. at 827, 829. Civil

contempt sanctions “are . . . avoidable through obedience,

and thus may be imposed in an ordinary civil proceeding

upon notice and an opportunity to be heard.” Id. at 827.

Here, to be a civil contempt sanction, the commission

prohibition must either: (i) compensate Epic for Apple’s

willful noncompliance with the Injunction; or (ii) coerce

Apple into complying with the Injunction moving forward.

The commission prohibition is clearly not compensatory. In

fact, it is unlikely that any sanction could compensate Epic

for Apple’s noncompliance here; there is no way to quantify

the number of developers who would have implemented

external links to Epic’s Games Store, or the number of

consumers who would have purchased digital content using

those links, had Apple not prohibited them. However,

neither is the commission prohibition coercive. Rather than

coercing Apple to comply with the spirit of the Injunction

with a reasonable, non-prohibitive commission, the district

court used blunt force to ban all commissions, abusing its

discretion.

Apple must be able to purge its civil contempt by

complying with the Injunction. See Bagwell, 512 U.S. at 829

(“Where a fine is not compensatory, it is civil only if the

contemnor is afforded an opportunity to purge.”). It is true,

as discussed above, that the power to charge commissions on

linked-out purchases is effectively the power to prohibit

those purchases. See supra Section II.D. But it is not true

that the Injunction enjoins any commission and any fee. It

bars only prohibitive commissions or fees. The district

EPIC GAMES, INC. V. APPLE INC. 39

court’s commission prohibition goes too far by denying

Apple any way to purge its contempt by, for example,

imposing a non-prohibitive, reasonable commission or fee to

ensure security and privacy for users. 8 This was an abuse of

the district court’s discretion. While the April 30 Order’s

restrictions related to link design are also permanent, those

restrictions are more closely tied to the strict terms and spirit

of the Injunction that Apple has violated, and more easily

affirmed as a clarification of that Injunction.

The district court could have fashioned this prohibition

to be conditional. For example, the prohibition would have

been conditional if the district court had banned any

commission or any fee for linked-out purchases until Apple

proposed, and the district court approved, a reasonable, non-

prohibitive commission that was supported with analysis by

an independent, court-appointed individual or firm. It also

would have been conditional if the district court banned any

commission or any fee for linked-out purchases until Apple

proposed a “reasonable fee” for linked-out purchases based

on Apple’s “actual costs” to “ensure user security and

privacy.” See, e.g., In re Google Play Store Antitrust Litig.,

8

In its April 30 Order, the district court cites H.I.S.C., Inc. v. Franmar

Int’l Importers, Ltd., 2022 WL 104730 (S.D. Cal. Jan. 11, 2022), for its

authority to impose civil contempt sanctions by clarifying the terms of a

permanent injunction. See Epic III, 781 F. Supp. 3d at 1003. However,

in that case, the district court’s clarifications to the permanent injunction

were tailored to the initial harm (trademark infringement). See Franmar,

2022 WL 104730 at *6. In contrast, here, the district court went beyond

the underlying UCL violation in ordering relief. Recall that the

underlying UCL violation was that Apple’s anti-steering provisions

“‘threaten[ed] an incipient violation of an antitrust law’ by preventing

informed choice among users of the iOS platform.” Epic I, 559 F. Supp.

3d at 1055 (quoting Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular

Tel. Co., 20 Cal. 4th 163, 187 (1999)).

40 EPIC GAMES, INC. V. APPLE INC.

147 F.4th 917, 945 (9th Cir. 2025). Instead, the district court

permanently prohibited all commissions and fees.

We reverse and remand this portion of the April 30

Order. There are two avenues that the district court could,

in theory, take on remand to resolve its error: (i) it could

modify the commission prohibition to be a conditional civil

contempt sanction; or (ii) rather than imposing a contempt

sanction, the district court could restrict Apple from

imposing a prohibitive commission by modifying the

Injunction. 9 On remand, the district court should amend the

April 30 Order’s commission prohibition as either a

purgeable civil contempt sanction or properly tailored

modification of the Injunction, as we consider in more detail

below.

***

In sum, having reviewed all six restrictions in the April

30 Order, we modify the April 30 Order as follows: (i) where

9

If the district court chooses to modify the Injunction to enjoin

commissions for linked-out purchases, the district court must tailor the

Injunction modification to the underlying UCL violation. See Lamb-

Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)

(“Injunctive relief, however, must be tailored to remedy the specific

harm alleged.”). However, the UCL violation, which resulted in an

informational harm, does not require that all commissions and all fees

be prohibited: the spirit of the Injunction contemplates the prohibitive

commissions, and the text of the Injunction does not address

commissions at all. The presence or absence of a commission does not

alter consumers’ access to information about purchase options. All else

being equal, the 27% commission here violated the Injunction not

because it was a commission; it violated the Injunction because it was

prohibitive, and consequently, developers did not opt into Apple’s Link

Entitlement program, effectively stripping consumers of access to

information about other purchase options. The district court must be

mindful of the threshold upon which commissions become “prohibitive.”

EPIC GAMES, INC. V. APPLE INC. 41

both Apple and a developer offer a purchase option, Apple

may restrict the developer from placing its buttons, links, or

other calls to action in more prominent fonts, larger sizes,

larger quantities, and more prominent places than Apple uses

for its own buttons, links, or other calls to action; (ii) Apple

may restrict developers from using language that violates its

general content standards, if such standards exist; (iii) Apple

is not specifically enjoined from excluding developers

participating in the VPP and NPP programs from

simultaneously obtaining link access; and (iv) as clarified

below, Apple is not enjoined from imposing a commission

or fee on purchases that consumers make in an app utilizing

iOS outside Apple’s App Store (a linked-out purchase) as

permitted by the district court on remand. The Injunction

and April 30 Order should otherwise remain in full effect.

We remand to the district court for the following: (i) to

consider whether Apple’s exclusion of VPP and NPP

developers violated the Injunction, or whether it was

necessary to protect or give life to the Injunction; and (ii) to

amend the April 30 Order’s commission prohibition as either

a purgeable civil contempt sanction or properly tailored

clarification or modification of the Injunction.

We recommend some possible courses of action to the

district court regarding an appropriate commission or fee

limitation on remand. Apple should be able to charge a

commission on linked-out purchases with the following in

mind: (a) Apple should be able to charge a commission on

linked-out purchases based on the costs that are genuinely

and reasonably necessary for its coordination of external

links for linked-out purchases, but no more. We refer to

these costs as “necessary costs.”; (b) In making a

determination of Apple’s necessary costs, Apple is entitled

to some compensation for the use of its intellectual property

42 EPIC GAMES, INC. V. APPLE INC.

that is directly used in permitting Epic and others to

consummate linked-out purchases. In deciding how much

that should be, the district court should consider the fact that

most of the intellectual property at issue is already used to

facilitate IAP, and costs attributed to linked-out purchases

should be reduced equitably and proportionately; (c) Apple

should receive no commission for the security and privacy

features it offers to external links, and its calculation of its

necessary costs for external links should not include the cost

associated with the security and privacy features it offers

with its IAP 10; (d) Apple should not be able to charge any

commission for linked-out purchases until such time as the

district court has approved an appropriate fee, but both

parties should be encouraged to reach agreement and/or seek

the court’s approval of its proposed fee expeditiously; and

(e) The district court may determine how best to make the

referenced determination but one possibility includes

inviting the parties to provide expert testimony based upon

which it would determine the appropriate fee or commission

to be chargeable for Apple’s actual costs of providing

services for linked-out transactions. The district court might

also consider whether to establish a “Technical Committee”

somewhat like what was done in In re Google, 147 F.4th

917, to aid it in determining a reasonable fee and/or

commission that Apple can charge for linked-out purchases.

See id. at 954–55.

10

According to Apple, its app review process includes “meticulous

review by human experts to ‘protect against fraud, privacy intrusion, and

objectionable content beyond levels achievable by purely technical

measures.’”

EPIC GAMES, INC. V. APPLE INC. 43

C. Apple’s Miscellaneous Challenges to the April 30

Order

We next evaluate Apple’s other miscellaneous

challenges to the district court’s contempt sanctions in the

April 30 Order. We start by noting Apple’s waiver. “When

a party could have raised an issue in a prior appeal but did

not, a court later hearing the same case need not consider the

matter.” United States v. Nagra, 147 F.3d 875, 882 (9th Cir.

1998). To the extent that the April 30 Order merely restates

the Injunction’s restrictions in a more specific manner, these

restrictions originate in the Injunction, not the April 30

Order. Thus, where the district court’s April 30 Order

enjoined Apple from conduct that was already enjoined,

Apple waived its challenges to the April 30 Order on

equitable abstention Takings Clause, and First Amendment

grounds. We now turn to these arguments on their merits, to

the extent that the April 30 Order is not subsumed by the

Injunction. We reject them all.

i. Equitable abstention

Apple argues that the April 30 Order’s commission

prohibition is “judicial ratemaking that is not permitted

under the UCL.” Courts “will abstain from employing the

remedies available under [California’s UCL] in appropriate

cases[.]” Willard v. AT&T Commc’ns of Cal., Inc., 204 Cal.

App. 4th 53, 59 (2012) (internal quotation omitted). This

“equitable abstention is appropriate” when a UCL claim

“would drag a court of equity into an area of complex

economic or similar policy.” Id. (citation modified) (internal

quotation omitted).

For example, in California Grocers Association v. Bank

of America, 22 Cal. App. 4th 205 (1994), a California court

determined that it could not resolve “whether service fees

44 EPIC GAMES, INC. V. APPLE INC.

charged by banks are too high and should be regulated.” Id.

at 218. That is “a question of economic policy” reserved for

legislatures and regulators. Id. Federal banking regulators

“decided that all charges to customers should be arrived at

by each bank on a competitive basis.” Id. at 218–19 (citation

modified) (quoting 12 C.F.R. § 7.8000(a)).

In Willard v. AT&T Communications of California, Inc.,

204 Cal. App. 4th 53 (2012), a California court also

determined that it was not an abuse of discretion for a trial

court to determine that it could not “judicial[ly] review . . .

AT & T’s fees for nonpublished service and unlisted

service.” Id. at 60. The court explained that “[t]he

administrative agency charged with responsibility over the

challenged fees ha[d] expressly taken [the] industry from

regulation to deregulation, after concluding the complex

market forces in play were sufficient to avoid abuse.” Id. at

60–61 (citing Cal. Pub. Util. Code § 2893(e)). Thus,

although the plaintiffs had not “alleg[ed] the market [wa]s

less competitive now than it was [when the agency

deregulated], [they were] asking the judiciary to reregulate

fees which the [agency] determined should be deregulated.”

Id. at 61.

This case is not comparable to California Grocers or

Willard. Apple can point to no statute or regulation

subjecting commissions for linked-out purchases to

unrestricted market forces. Without that, Apple has given

no reason to hold that “[i]t is primarily a legislative and not

a judicial function” to apply the UCL here. See Cal.

Grocers, 22 Cal. App. 4th at 218 (quoting Max Factor & Co.

v. Kunsman, 5 Cal. 2d 446, 454–55 (1936), aff’d sub nom.,

Pep Boys v. Pyroil Sales Co., 299 U.S. 198 (1936)). In any

case, the district court did not attempt to “regulat[e] . . .

pricing via injunction on an ongoing basis.” Id. (quoting

EPIC GAMES, INC. V. APPLE INC. 45

Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1383, 1391

(1991)). It did not set a price; it instead enjoined Apple from

charging a commission at all (albeit improperly). Thus, the

April 30 Order did not impose price controls requiring

equitable abstention under the UCL.

ii. Regulatory taking

Apple also argues that the April 30 Order violated the

Takings Clause by forbidding it from charging a commission

on linked-out purchases. According to Apple, the

commission prohibition is problematic because it will not

receive the compensation that it claims for its intellectual

property. We conclude that even if Apple has not waived

this challenge, the April 30 Order was not a regulatory

taking.

Judicial decisions “contraven[ing] the established

property rights” of a person may violate the Takings Clause.

Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t

Prot., 560 U.S. 702, 733 (2010). “[S]everal factors . . . have

particular significance” in deciding whether a taking has

occurred, Penn Cent. Transp. Co. v. City of New York, 438

U.S. 104, 124 (1978), and those factors do not favor Apple.

First, the “character of the governmental action” matters,

and takings are “more readily . . . found when the

interference with property can be characterized as a physical

invasion by government.” Id. There is no physical taking

here. Second, courts consider “[t]he economic impact of the

regulation on the claimant.” Id. Here, while the April 30

Order would deprive Apple of “its anticompetitive revenue

stream,” see Epic III, 781 F. Supp. 3d at 952, Apple is hardly

otherwise uncompensated for its efforts to create the iOS and

App Store. It may, for example, charge consumers for iOS

devices and for commissions on in-app purchases. Third, an

46 EPIC GAMES, INC. V. APPLE INC.

action is more likely a taking if it “interfere[s] with distinct

investment-backed expectations.” Penn. Cent., 438 U.S. at

124. Here, Apple had no expectation that it would be able

to charge commissions, much less anticompetitive

commissions, on linked-out purchases when investing into

its iOS system because it previously prohibited such

transactions.

iii. First Amendment

Apple next argues that the April 30 Order’s “prohibitions

are so broad that they violate Apple’s First Amendment

rights.” We likewise reject this argument. Sometimes,

“ordering a party to provide a forum for someone else’s

views implicates the First Amendment.” Moody v.

NetChoice, LLC, 603 U.S. 707, 728 (2024). However, this

is true only if “the regulated party is engaged in its own

expressive activity, which the mandated access would alter

or disrupt.” Id.

The April 30 Order (and the Injunction) may alter or

disrupt Apple’s ability to effectively prohibit consumers

from completing linked-out purchases, but it has not

interfered with Apple’s own expressive activity. Apple

claims that its speech has been limited because it cannot

restrict developers’ style, language, formatting, or quantity

of links for purchases outside an app or otherwise condition

the content, style, or language for purchases outside an app.

But that restriction describes the developers’ expressive

activity, not Apple’s expressive activity. Apple claims that

without such restrictions, it will be effectively compelled to

engage in expressive activity by allowing developers to

engage in speech that it may not agree with, such as

offensive speech.

EPIC GAMES, INC. V. APPLE INC. 47

Apple’s argument proves too much. If Apple is correct,

a regulated party’s expressive activity is implicated

whenever it cannot restrict someone else’s speech on a

forum it runs. If so, ordering a party to provide a forum for

someone else’s views will always alter or disrupt expressive

activity. That absolute rule is inconsistent with Moody.

Ultimately, Apple is unlike “the editors, cable operators, . . .

parade organizers[, and] . . . social-media platforms” that

can take advantage of Moody. 603 U.S. at 738. Unlike them,

it has not shown it is “in the business . . . of combining

‘multifarious voices’ to create a distinctive expressive

offering.” Id.

D. Due Process

According to Apple, “[i]f the district court believed that

Apple’s new commission violated the UCL, it could have

instituted proceedings to modify the injunction consistent

with due process.” We disagree with Apple that the district

court violated due process here. “Before issuing injunctive

relief, the court must provide the affected party with notice

and an opportunity to be heard.” Armstrong v. Brown, 768

F.3d 975, 979–80 (9th Cir. 2014). The district court could

not have run afoul of this rule to the extent that it did not

impose new or modified injunctive relief. But to the extent

it did, or to the extent that the district court imposed civil

contempt sanctions, Apple received notice and an

opportunity to be heard.

Apple received notice because Epic requested the

alleged modifications. It challenged: the 27% commission;

Apple’s restrictions on the language, look, and location of

developers’ links; the “scare screen”; the ban on dynamic

links; and the restriction to “plain buttons.” Even when the

“district court d[oes] not provide the defendant with formal

48 EPIC GAMES, INC. V. APPLE INC.

notice of a possible injunction,” it may impose “injunctive

relief . . . [if] the defendant was aware of the potential

injunction based on various filings by the parties.”

Armstrong, 768 F.3d at 980 (summarizing Penthouse Int’l,

Ltd. v. Barnes, 792 F.2d 943, 950 (9th Cir. 1986)).

Apple also had the opportunity to be heard. The district

court held an evidentiary hearing over several days, and

Apple was able to call witnesses and cross-examine Epic’s

witnesses. Apple does not argue that its presentation of

evidence or arguments supporting its Link Entitlement

program would have been different if the district court had

detailed its relief earlier. See id. (determining that there is

“no merit” to a due process challenge based on a “district

court’s modification to [an] injunction . . . made in response

to a request by [the plaintiffs] to hold the [defendant] in

contempt.”). The district court took every step necessary to

afford Apple due process. 11

IV. Apple’s Request to Vacate the Injunction

Before the district court, Apple argued that, whether it

violated the Injunction or not, the Injunction ought not to be

enforced going forward. We disagree. First, although Apple

argues that a recent decision from a California Court of

Appeal conflicts with the Injunction, we find no conflict.

Second, although Apple argues that the Supreme Court’s

recent ruling on nationwide injunctions clashes with the

Injunction, that ruling does not undermine our previous

analysis of the Injunction’s scope.

11

It is unlikely that the district court intended to impose criminal

contempt sanctions with the commission prohibition here. See supra

Section III.B.

EPIC GAMES, INC. V. APPLE INC. 49

A. Apple’s Rule 60(b)(5) Motion

A party can obtain relief from a judgment if “applying it

prospectively is no longer equitable[.]” Fed. R. Civ. P.

60(b)(5). “[I]t is appropriate to grant a Rule 60(b)(5) motion

when the party seeking relief from an injunction . . . can

show ‘a significant change either in factual conditions or in

law.’” Agostini v. Felton, 521 U.S. 203, 215 (1997) (quoting

Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384

(1992)). Here, Apple argues that the Injunction must be

vacated in light of the California Court of Appeal’s recent

decision in Beverage v. Apple, Inc., 101 Cal. App. 5th 736

(2024), review denied (July 10, 2024).

There is no conflict between the judgment here and

Beverage. In Beverage, the California Court of Appeal

explained that its “decision [wa]s a narrow one.” 101 Cal.

App. 5th at 755. That decision “is limited to situations

typified by [Beverage], where the same conduct found

immune from antitrust liability by the Colgate doctrine is

also alleged to violate the ‘unfair’ prong of the UCL.” Id.

Here, Apple has violated the “unfair” prong of the UCL, but

Apple has not identified when its conduct was found

immune from antitrust liability pursuant to the Colgate

doctrine. In contrast, this court held that Epic’s antitrust

claims “suffer[ed] from a proof deficiency, rather than a

categorical legal bar” as in Colgate. Epic II, 67 F.4th at 1001

(citation modified).

Moreover, although Apple was the defendant in

Beverage, the Court of Appeal did not hold that Colgate

aided Apple. There, the plaintiffs abandoned part of their

claim, and the court assumed without deciding that the

plaintiffs’ allegations were legally insufficient under

Colgate. See 101 Cal. App. 5th at 752. Instead, the court

50 EPIC GAMES, INC. V. APPLE INC.

focused on “whether [the plaintiffs] adequately alleged an

‘unfair’ act or practice under the UCL considering the trial

court’s ruling that Apple’s practices constituted permissible

unilateral conduct.” Id. Thus, Beverage never analyzed the

question that Apple says was decided in its favor.

The opinion in Beverage also distinguished this court’s

opinion, which undermines Apple’s claim that the decisions

irreconcilably conflict. Beverage distinguished this court’s

opinion because it did not “engage[] [in] a rigorous analysis

of the Colgate doctrine and its effect on UCL claims” and

was thus not “persuasive on the precise issue presented by

th[e] appeal” in Beverage. Id. at 756 n.6 (emphasis added).

That precise issue was whether the plaintiffs could sue under

the UCL’s “unfair” prong assuming that Colgate immunized

Apple. That issue is not presented here because, again, no

court has held that Colgate immunized Apple.

Apple’s prior arguments also undercut its current

position. Apple told the California Supreme Court that it

should not review the Court of Appeal’s decision in

Beverage because it did not conflict with this court’s prior

opinion. See Answer to Petition for Review at *11–12,

Beverage v. Apple Inc., No. S285154 (Cal. June 18, 2024)

(rejecting the argument that “the decision below [was]

inconsistent with [the] decisions in a federal court lawsuit

involving Epic Games”). Apple stated that “[t]he Ninth

Circuit did not . . . address the applicability of the Colgate

doctrine to the conduct challenged in that case.” Id. at *12.

B. Apple’s Argument Pursuant to CASA

In its reply brief and in a Rule 28(j) letter, Apple argues

that the Injunction and “new injunction” (referring to the

injunctive relief in the April 30 Order) must be vacated

because they are impermissible nationwide injunctions. The

EPIC GAMES, INC. V. APPLE INC. 51

Supreme Court recently expressed its disapproval of

“injunctions . . . broader than necessary to provide complete

relief to each plaintiff with standing to sue.” Trump v. CASA,

Inc., 606 U.S. 831, 861 (2025). The test “is whether an

injunction will offer complete relief to the plaintiffs before

the court.” Id. at 852 (emphasis in original). If it does, it

may also “advantage nonparties,” albeit “incidentally.” Id.

at 851 (citation modified) (quoting Trump v. Hawaii, 585

U.S. 667, 717 (2018) (Thomas, J., concurring)).

Here, we previously determined that the Injunction is

consistent with CASA’s underlying principle because its

“scope is tied to Epic’s injuries” as a developer and games

distributor, not to the other developers’ injuries. Epic II, 67

F.4th at 1003. The enjoined conduct, in relevant part,

“harmed Epic by . . . preventing other apps’ users from

becoming would-be Epic Games Store consumers.” Id.

“Because Epic benefits in this second way from consumers

of other developers’ apps making purchases through the Epic

Games Store, an injunction limited to Epic’s subsidiaries

would fail to address the full harm caused by the anti-

steering provision.” Id. To the extent that Apple is

challenging the original Injunction, the Injunction does

nothing more than provide complete relief to Epic, and this

court has already considered, and rejected, arguments to the

contrary. That Epic opted out of a class action for developers

does not change the result.

The April 30 Order does not fare differently under CASA.

Apple argues that the April 30 Order is overbroad because it

enjoins Apple’s conduct with respect to all developers,

whether or not consumers are making a purchase using the

Epic Game Store. Apple would have our court limit the

April 30 Order to Epic and its subsidiaries alone, or to only

gaming apps that seek to implement links out to the Epic

52 EPIC GAMES, INC. V. APPLE INC.

Games Store. Epic counters that limiting the April 30 Order

in the manner proposed by Apple would not facilitate the

competition necessary to grant Epic complete relief. We

agree with Epic on this question.

Moreover, we are persuaded by our court’s discussion of

CASA in In re Google. 12 In that case, we determined that

“the scope of a permanent injunction following a finding of

antitrust liability is hardly comparable to that of a

preliminary injunction on a constitutional question.” 147

F.4th at 958. We further explained that “CASA’s holding

about district courts’ authority under the Judiciary Act of

1789 has no bearing on whether the district court here

exceeded its equitable powers under Section 16 of the

Clayton Act,” and “[t]he nationwide prohibitions [in that

case] fit squarely within the district court’s ‘large discretion’

to craft equitable antitrust remedies.” Id. (quoting Ford

Motor Co. v. United States, 405 U.S. 562, 573 (1972)).

While there is no antitrust liability here, the scope of a

permanent injunction following an incipient antitrust

violation pursuant to the UCL is also distinguishable from

the injunction’s scope in CASA. Specifically, the complete

relief here is molded to “the necessities of th[is] particular

case,’” which centers on anticompetitive conduct by Apple

and aims to restore the information to consumers that is

necessary to foster competition. CASA, 606 U.S. at 854

(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)).

Thus, the Injunction and April 30 Order will continue to

apply to all linked-out purchases and not just to Epic Games

Google has petitioned the Supreme Court for a writ of certiorari. See

12

Google LLC v. Epic Games, Inc., No. 25-521 (Oct. 29, 2025).

EPIC GAMES, INC. V. APPLE INC. 53

or links out to the Epic Games Store. The underlying

Injunction is not an impermissible nationwide injunction.

V. Apple’s Request for a New Judge

Apple argues that “[t]o the extent this Court determines

that a remand is required . . . it should assign the case to a

different district judge.” “We reassign only in ‘rare and

extraordinary circumstances.’” Planned Parenthood Great

Nw. v. Labrador, 122 F.4th 825, 844 (9th Cir. 2024) (quoting

Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1045

(9th Cir. 2015), overruled on other grounds by Ariz. All. For

Retired Americans v. Mayes, 117 F.4th 1165 (9th Cir.

2024)). Apple argues that the district judge “found that

Apple and its executives had violated an earlier order,”

“imposed a new injunction,” “assess[ed] . . . Apple’s

subjective motives” using allegedly privileged documents,

and referred Apple for a criminal investigation. In short,

Apple seeks reassignment based solely on the district court’s

rejection of its arguments and its determination that Apple

willfully violated the court’s order. This argument lacks

merit. Apple may disagree with those outcomes, but they

supply no basis for reassignment.

CONCLUSION

We modify the April 30 Order as follows: (i) where both

Apple and a developer offer a purchase option, Apple may

restrict the developer from placing its buttons, links, or other

calls to action in more prominent fonts, larger sizes, larger

quantities, and more prominent places than Apple uses for

its own buttons, links, or other calls to action; (ii) Apple may

restrict developers from using language that violates its

general content standards, if such standards exist; (iii) Apple

is not specifically enjoined from excluding developers

participating in the VPP and NPP programs from

54 EPIC GAMES, INC. V. APPLE INC.

simultaneously obtaining link access; and (iv) Apple is not

enjoined from imposing a commission or fee on purchases

that consumers make in an app utilizing iOS outside the

Apple Store (a linked-out purchase) as permitted by the

district court on remand. The Injunction and April 30 Order

otherwise remain in full effect.

We remand to the district court for the following: (i) to

consider whether Apple’s exclusion of VPP and NPP

developers violated the Injunction, or whether it was

necessary to protect or give life to the Injunction; and (ii) to

amend the April 30 Order’s commission prohibition as either

a purgeable civil contempt sanction or properly tailored

clarification or modification of the Injunction.

AFFIRMED in part, REVERSED in part, and

REMANDED. Each side shall bear its own costs on appeal.