Amicus Curiae Brief — Apple Inc., Petitioner v. Epic Games, Inc.

No. 25-1311

IN THE

Supreme Court of the United States

___________

APPLE INC.,

Petitioner,

v.

EPIC GAMES, INC.,

Respondent.

___________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE SUPPORTING PETITIONER

___________

September 16, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether a court may hold a party in civil

contempt for violating an injunction’s “spirit” where

the injunction is silent about the conduct on which

contempt is based, as the Ninth Circuit holds; or

instead, whether a court must ground a finding of civil

contempt on the violation of an order whose words

clearly and unambiguously proscribe the precise

conduct at issue, as other circuits hold.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iv

INTEREST OF AMICUS CURIAE ........................ 1

INTRODUCTION ................................................... 2

ARGUMENT ........................................................... 6

I.

CIVIL CONTEMPT REACHES ONLY CONDUCT

THAT AN ORDER’S TERMS EXPLICITLY

PROSCRIBE ......................................................... 6

II. THE LAW SOLVED THE EVASION PROBLEM

LONG AGO WITH TOOLS THAT ALL RUN

THROUGH TEXT ................................................ 10

A. A court may construe a genuinely

ambiguous term in line with the suit’s

purpose—but may not backfill a new one

..................................................................... 11

B. A court may draft its decree broadly

enough to foreclose evasion and enforce

those broad terms ....................................... 12

C. A court may bind the confederates and

corporate shells through whom a party

evades ......................................................... 13

D. A court may modify the decree—

prospectively, on notice—to capture

changed circumstances and evasive

conduct ........................................................ 14

III. ADOPTING THE NINTH CIRCUIT’S RULE WILL

CORRUPT THE INCENTIVES OF EVERYONE

THE DECREE TOUCHES ..................................... 17

CONCLUSION ...................................................... 20

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Epic Games, Inc. v. Apple Inc.,

559 F. Supp. 3d 898 (N.D. Cal. 2021) ............... 8, 12

Gee v. Pritchard,

36 Eng. Rep. 670 (Ch. 1818) ............................... 11

Granny Goose Foods, Inc. v. Bhd. of Teamsters

& Auto Truck Drivers Loc. No. 70,

415 U.S. 423 (1974) ............................................... 6

Gunn v. Univ. Comm. to End War in Viet Nam,

399 U.S. 383 (1970) ............................................... 6

Inst. of Cetacean Rsch. v. Sea Shepherd Conserv.

Soc’y, 774 F.3d 935 (9th Cir. 2014) ..................... 13

Int’l Longshoremen’s Ass’n, Loc. 1291 v. Phila.

Marine Trade Ass’n, 389 U.S. 64 (1967)..... 2, 6, 11

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

512 U.S. 821 (1994) ......................................... 7, 16

McComb v. Jacksonville Paper Co.,

336 U.S. 187 (1949) ............................4, 7, 8, 10, 12

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................... 9

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) ......................................... 11, 12

Pasadena City Bd. of Educ. v. Spangler,

427 U.S. 424 (1976) ............................................. 15

People Who Care v. Rockford Bd. of Educ.,

111 F.3d 528 (7th Cir. 1997) ............................... 14

Regal Knitwear Co. v. NLRB,

324 U.S. 9 (1945) ............................................. 4, 13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Rufo v. Inmates of Suffolk Cnty. Jail,

502 U.S. 367 (1992) ....................................... 14, 15

Schmidt v. Lessard,

414 U.S. 473 (1974) ..................................... 2, 6, 10

Sys. Fed’n No. 91 v. Wright,

364 U.S. 642 (1961) ....................................... 14, 17

Taggart v. Lorenzen,

587 U.S. 554 (2019) ........ 3, 5, 7, 8, 9, 15, 16, 17, 19

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

266 U.S. 17 (1924) ........................................... 4, 11

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ............................................. 17

United States ex rel. Schutte v. SuperValu Inc.,

598 U.S. 739 (2023) ............................................... 1

United States v. Armour & Co.,

402 U.S. 673 (1971) ......................................... 4, 11

United States v. Swift & Co.,

286 U.S. 106 (1932) ......................................... 4, 14

United States v. United Shoe Mach. Corp.,

391 U.S. 244 (1968) ............................................. 14

Yates v. United States,

574 U.S. 528 (2015) ............................................... 1

Young v. United States ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987) ............................................. 17

RULES:

Fed. R. Civ. P. 60(b)(5) ....................................... 14, 15

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Fed. R. Civ. P. 65(d) ................................10, 11, 12, 15

Fed. R. Civ. P. 65(d)(1)(B) .......................................... 6

Fed. R. Civ. P. 65(d)(1)(C) .......................................... 6

Fed. R. Civ. P. 65(d)(2) ......................................... 4, 18

Fed. R. Civ. P. 65(d)(2)(B) .......................................... 3

Fed. R. Civ. P. 65(d)(2)(C) .................................... 3, 13

OTHER AUTHORITIES:

Lewis Carroll, Alice’s Adventures in Wonderland

(London, Macmillan & Co. 1866) ............................ 5

Lon L. Fuller, The Morality of Law (rev. ed. 1969) .. 5

Thomas Hobbes, Leviathan (1651) ............................ 7

Antonin Scalia, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) .......................... 1, 11

John Selden, Table Talk of John Selden

(Frederick Pollock ed., 1927) (1689) ....................... 2

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation (WLF) is a publicinterest law firm and policy center with supporters

nationwide. WLF promotes free enterprise, individual

rights, limited government, and the rule of law. It often

appears as an amicus curiae to defend the right of

parties to fair notice of conduct that could lead to

criminal penalties or punitive civil sanctions. See, e.g.,

United States ex rel. Schutte v. SuperValu Inc., 598

U.S. 739 (2023); Yates v. United States, 574 U.S. 528

(2015).

“Rudimentary justice requires that those subject to

the law must have the means of knowing what it

prescribes.” Antonin Scalia, The Rule of Law as a Law

of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989). This case

illustrates why that protection remains so essential.

When a court may hold a party in civil contempt for

conduct an injunction’s text does not even mention,

much less proscribe, the requirement of fair notice

collapses. WLF has a strong interest in ensuring that

civil contempt remains tethered to the explicit terms of

judicial orders rather than to the judge’s after-the-fact

musings about their “spirit.”

WLF’s concern in this case is a practical one.

Businesses comply with injunctions by relying on the

decree’s words. Investors and lenders then price the

risk of what those words mean. A rule that punishes

conduct the words never mention cannot be priced at

all—only feared. Free markets cannot run on such fear.

* No party’s counsel authored any part of this brief. No one,

other than WLF and its counsel, helped pay for the brief’s

preparation or submission.

2

INTRODUCTION

Equity is a roguish thing: for law we have a

measure . . . equity is according to the

conscience of him that is chancellor, and as that

is larger or narrower, so is equity. ’Tis all one

as if they should make the standard for the

measure we call a foot, a chancellor’s foot.

—John Selden, Table Talk (1689)

Selden’s complaint was old when he made it, and

the law answered it long ago. The answer is words. An

injunction is a command, set out in advance in terms

the enjoined party can follow and a reviewing court can

read. Contempt is the punishment for disobeying the

command. And because that punishment flows from

the command’s words, “basic fairness requires that

those enjoined receive explicit notice of precisely what

conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473,

476 (1974) (per curiam). This Court polices that

requirement with care, because the “judicial contempt

power is a potent weapon,” and when “founded upon a

decree too vague to be understood, it can be a deadly

one.” Int’l Longshoremen’s Ass’n, Loc. 1291 v. Phila.

Marine Trade Ass’n, 389 U.S. 64, 76 (1967).

The decree in this case was worse than vague—

it was silent about the punished conduct. In 2021, the

district court 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.” Pet. App. 166a. Not a word about

commissions. Nothing about price. The Ninth Circuit

said so itself: “the text of the Injunction does not

3

address commissions at all.” Id. at 34a n.9. No matter,

the appeals court affirmed a finding that Apple

committed contempt by charging a commission on

linked-out purchases.

How could this happen? According to the Ninth

Circuit, it’s a feature, not a bug. Under that court’s

outlier precedent, “parties may be held in contempt for

violating the spirit of an injunction.” Pet. App. 12a.

What followed shows what mischief that “spirit” can

do: a contempt adjudication, id. at 141a; a new decree—

effective immediately, no stay to be entertained—fixing

Apple’s commission at zero on all out-of-app purchases,

id. at 159a–61a, a sanction so untethered that even the

panel reversed it, id. at 34a; and a referral of Apple and

one of its vice presidents to the United States Attorney

for criminal investigation, id. at 163a. The chancellor’s

foot is back, fitted with a steel-toed boot.

American commerce cannot run on an arbitrary

rule like that. Businesses live under injunctions—in a

national economy, most large ones eventually will—

and rational actors obey a decree the only way they can:

by turning the words into rules. Engineers build

products to the words. Lawyers vet contracts against

the words. Compliance officers turn the words into

checklists for thousands of employees bound by the

decree, along with the company’s “officers, agents,

servants,” and anyone “in active concert or

participation.” Fed. R. Civ. P. 65(d)(2)(B)–(C); Pet. App.

166a. Words can be distributed, studied, memorized,

and followed. A “spirit” cannot.

As Apple has ably shown, the decision below

defies Taggart v. Lorenzen, 587 U.S. 554 (2019), and

this Court’s unbroken line of authority confining

4

contempt to an order’s explicit terms. But the Ninth

Circuit’s rule is not merely unlawful. It is also

unnecessary, as the law of injunctions long ago armed

district courts against evasive parties with tools that

all run through text.

The law provides at least four. A court may

construe a genuinely ambiguous term in light of the

suit’s purpose, Terminal R.R. Ass’n of St. Louis v.

United States, 266 U.S. 17, 29 (1924)—though it may

not construe a decree “as it might have been written,”

United States v. Armour & Co., 402 U.S. 673, 682

(1971). It may draft its decree broadly enough to

foreclose evasion and enforce the broad terms it wrote.

McComb v. Jacksonville Paper Co., 336 U.S. 187, 192

(1949). It may bind the confederates and corporate

shells through whom a party evades. Fed. R. Civ. P.

65(d)(2); Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14

(1945). And it may modify the decree—prospectively,

on notice—when events reveal that the words no longer

reach the mischief. United States v. Swift & Co., 286

U.S. 106, 114 (1932). Anything the “spirit” rule might

lawfully accomplish, these tools already supply. What

remains of the Ninth Circuit’s rule is only what the law

forbids.

The fourth tool, modification, decides this case.

The 2021 decree invited modification “at any time.”

Pet. App. 166a. When Apple answered the injunction

with a commission that Epic thought was contrary to

the decree’s purpose, the lawful course was a motion to

modify—on notice, with Epic bearing the burden of

showing that a new command was warranted and

within the court’s remedial authority. Whether any

such command could lawfully reach Apple’s

commission is a question the district court never asked,

5

because it never had to. It reached the commission by

contempt instead, id. at 141a, 159a–60a, and supplied

the words only afterward. Equity punishes only

disobedience of clear commands given. It does not

proceed by the Queen of Hearts’ rules: “Sentence first—

verdict afterwards.” Lewis Carroll, Alice’s Adventures

in Wonderland 187 (London, Macmillan & Co. 1866).

Here the district court delivered the command and the

punishment in the same breath. Allowed to stand, the

Ninth Circuit’s rule will extinguish the practice of

modification altogether. No rational plaintiff will

shoulder the burden of justifying a new command when

the old one can be stretched retroactively—with

sanctions and fees as the prize. Under such a rule,

vagueness becomes an asset; precision, a liability.

A failure to make rules known to the party

expected to observe them is among the first stages of

total failure in a legal system. Lon L. Fuller, The

Morality of Law 39 (rev. ed. 1969). The Court should

reverse and reaffirm what Taggart held: no civil

contempt can attach where the order’s explicit terms

leave a fair ground of doubt—and an order silent about

the very conduct sanctioned always leaves one.

Reversal here takes nothing from district courts

confronting evasive parties. All four tools for cabining

evasion remain. On remand, the district court stays

free to frame explicit, prospective commands within the

limits of the violation it actually adjudicated, and to

enforce them to the letter. What it may not do is what

it did here—punish yesterday’s conduct under

tomorrow’s decree.

6

ARGUMENT

I.

CIVIL CONTEMPT REACHES ONLY CONDUCT

THAT AN

ORDER’S

TERMS

EXPLICITLY

PROSCRIBE.

Every injunction must “state its terms

specifically” and “describe in reasonable detail . . . the

act or acts restrained or required.” Fed. R. Civ. P.

65(d)(1)(B)–(C). That Rule “was designed to prevent

uncertainty and confusion on the part of those faced

with injunctive orders, and to avoid the possible

founding of a contempt citation on a decree too vague

to be understood.” Schmidt, 414 U.S. at 476. It

embodies the “one basic principle” that “those against

whom an injunction is issued should receive fair and

precisely drawn notice of what the injunction actually

prohibits,” Granny Goose Foods, Inc. v. Bhd. of

Teamsters & Auto Truck Drivers Loc. No. 70, 415 U.S.

423, 444 (1974). The need for certainty flows from the

recognition that an injunction is “an extraordinary

writ, enforceable by the power of contempt.” Gunn v.

Univ. Comm. to End War in Viet Nam, 399 U.S. 383,

389 (1970).

In Longshoremen, a union was fined $100,000

per day under an order so opaque that its counsel

protested they had “been shooting in the dark . . . trying

to guess at what may be an issue.” 389 U.S. at 72–73.

This Court reversed: “[t]he most fundamental

postulates of our legal order forbid the imposition of a

penalty for disobeying a command that defies

comprehension.” Id. at 76. A command that does not

exist until after the contempt hearing defies

comprehension in the most literal way.

7

The Court’s insistence on text is a constraint on

arbitrary power. In civil contempt, “the offended judge

[is] solely responsible for identifying, prosecuting,

adjudicating, and sanctioning the contumacious

conduct.” Int’l Union, United Mine Workers of Am. v.

Bagwell, 512 U.S. 821, 831 (1994). No grand jury

screens the charge; no jury finds the facts. The one

external constraint is the order itself—and it

constrains only if its words, rather than their spirit,

measure liability. Strip that away, and the measure

becomes the conscience of whoever is chancellor.

Selden called that unchecked caprice a scandal in the

seventeenth century. It has not improved with age.

Taggart holds all of this, unanimously. Civil

contempt lies only where there is “no fair ground of

doubt as to whether the order barred the [defendant’s]

conduct”—that is, “no objectively reasonable basis for

concluding that the [defendant’s] conduct might be

lawful.” 587 U.S. at 557. The standard “is generally an

objective one,” id. at 561, and it works in both

directions. A defendant gains no safe harbor from good

intentions: “[t]he absence of wilfulness does not relieve

from civil contempt,” McComb, 336 U.S. at 191, and a

“subjective belief” in compliance “ordinarily will not

insulate” a party whose reading is objectively

unreasonable, Taggart, 587 U.S. at 561.

By the same logic, the motives of a party subject

to the order cannot create a violation that the order’s

text does not describe. The Ninth Circuit’s heavy

reliance on Apple’s supposed bad faith, Pet. App. 14a–

16a, fills no textual gap. It cuts against the ancient rule

that where the law is silent, there is liberty to act.

Thomas Hobbes, Leviathan, ch. 21 (1651) (“In cases

where the Soveraign has prescribed no rule, there the

8

Subject hath the Liberty to do, or forbeare, according to

his own discretion”).

True, Taggart observed that sanctions “may be

warranted when a party acts in bad faith,” id. at 561–

62, and that McComb placed “the burden of any

uncertainty in the decree” on a persistent violator, id.

at 562 (quoting McComb, 336 U.S. at 192–93). But

“uncertainty in the decree” presupposes a decree whose

terms arguably reach the conduct. When the order is

silent, there is no uncertainty to allocate. There are no

terms. The panel nonetheless placed “the burden of any

uncertainty” on Apple, Pet. App. 25a n.5—without

explaining what Apple should have asked the court to

clarify.

The 2021 liability opinion said that “[e]ven in the

absence of IAP, Apple could still charge a commission

on developers.” Epic Games, Inc. v. Apple Inc., 559 F.

Supp. 3d 898, 1042 (N.D. Cal. 2021) (quoted at Pet.

App. 21a n.3). The panel itself conceded that it “would

be difficult to say that all commissions violate the

Injunction,” Pet. App. 22a (emphasis in original), and

observed that the district court had “indirectly

acknowledge[d]” as much, id. at 22a n.4. A party told

by the issuing court that it may charge a commission,

under a decree that never mentions one, has no

uncertainty to resolve—only a rate to choose. Bad

motives may calibrate the sanction for a violation, but

they cannot conjure the violation itself.

Measured by that standard, this contempt

finding fails at every step. The injunction restrained

Apple from prohibiting developers from including links

in their apps. Pet. App. 166a. Apple permitted the links

and charged a commission on the resulting sales. An

9

order whose text “does not address commissions at all,”

id. at 34a n.9, cannot supply “explicit notice” that

commissions are outlawed—much less notice of the

rate at which a lawful commission becomes contempt.

If a commission of twenty-seven percent “prohibits,” id.

at 20a, what about one of twenty percent? Of five? No

reading of the decree’s words answers the question,

because the words are not there. Silence of that kind is

fair ground of doubt in its purest form. When a decree

does not speak to a party’s conduct, that party has, by

definition, an objectively reasonable basis to conclude

the conduct “might be lawful.” Taggart, 587 U.S. at

557.

The Ninth Circuit’s justifications lead nowhere.

It answered that “prohibit” can mean “[t]o prevent,

preclude, or severely hinder.” Pet. App. 19a (citation

omitted). But the decree did not forbid Apple from

hindering an economic outcome; it forbade Apple from

prohibiting an act—the inclusion of links—an act that

Apple indisputably allowed. Read functionally,

“prohibit” converts a decree against conduct into a rate

regulation whose lawful rate is a secret until the

contempt hearing. A definition that leaves the

defendant to guess the number is not fair notice. It is a

trap.

Nor does the appeals court’s borrowed maxim

from McCulloch v. Maryland—“the power to tax

involves the power to destroy,” Pet. App. 20a (citing 17

U.S. (4 Wheat.) 316, 431 (1819))—do the trick.

McCulloch was a constitutional ruling, announced

prospectively, in an opinion anyone could read.

Maryland was not held in contempt of an order that

never mentioned taxes.

10

Confronted with Rule 65(d), the panel answered

that the Rule “regulates only the ‘contents and scope’”

of injunctions and “says nothing about contempt.” Pet.

App. 13a. That reading unravels the Rule. Again,

Schmidt says it exists precisely “to avoid the possible

founding of a contempt citation on a decree too vague

to be understood.” 414 U.S. at 476. A specificity

requirement that governs drafting but evaporates at

enforcement protects no one.

All that remains is the panel’s candid holding

that circuit precedent “means what it says: parties may

be held in contempt for violating the spirit of an

injunction”—a rule that by the panel’s own telling

operates on the premise “that the strict letter of the

injunction was not violated.” Pet. App. 12a. But a

doctrine that begins where the order’s text ends is, by

definition, a doctrine that imposes contempt despite a

“fair ground of doubt.” One of these standards is the

law of this Court. The other is the law of one circuit.

Both cannot stand.

II.

THE LAW SOLVED THE EVASION PROBLEM

LONG AGO WITH TOOLS THAT ALL RUN

THROUGH TEXT.

The Ninth Circuit’s rule trades on a legitimate

fear that a “narrow literalism” would let defendants

play cat-and-mouse with the court, greeting each

decree with conduct just outside it. Pet. App. 12a; see

McComb, 336 U.S. at 192–93. That fear is an old one,

and the cure is not new.

Equity’s own chancellors took Selden’s point:

Lord Eldon hoped never to “justify the reproach that

the equity of this court varies like the Chancellor’s

11

foot.” Gee v. Pritchard, 36 Eng. Rep. 670, 674 (Ch.

1818). What emerged is the modern law of

injunctions—equity’s flexibility bound by the law’s

discipline. “Only by announcing rules do we hedge

ourselves in.” Scalia, supra, at 1180. And Congress first

supplied the measure in § 19 of the Clayton Act; Rule

65(d) is its successor. Congress enacted it so that

defendants would “never be left to guess at what they

are forbidden to do.” Longshoremen, 389 U.S. at 75

(citation omitted). The law gives a district court four

textual tools against the evasive defendant. Together

they answer any fear of evasion, and they do so through

text.

A.

A court may construe a genuinely

ambiguous term in line with the

suit’s purpose—but may not backfill

a new one.

District courts retain full interpretive latitude

over what they have written. Decrees are “read in the

light of the issues and the purpose for which the suit

was brought,” Terminal R.R., 266 U.S. at 29—a

principle for resolving doubt about words actually used.

A genuinely ambiguous term may be construed in line

with its purpose. What a court may not do is invoke

ambiguity to write new terms: a decree “must be

construed as it is written, and not as it might have been

written.” Armour, 402 U.S. at 682. Justice Scalia stated

the premise in the legislative context for a unanimous

Court: “it is ultimately the provisions of our laws rather

than the principal concerns of our legislators by which

we are governed.” Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 79 (1998).

12

The principle is symmetrical. A text may reach

beyond its author’s chief concern—Oncale itself so

held—or it may stop short of one, as the decree did

here. Either way, the words govern, not the worry

behind them. This line—between reading and

drafting—is both administrable and familiar.

Interpretation ends where the text does. “Spirit”

contempt begins there.

B.

A court may draft its decree broadly

enough to foreclose evasion and

enforce those broad terms.

The decree in McComb, “[b]y its terms,” enjoined

“any practices which were violations” of the Fair Labor

Standards Act, and the defendants violated those

incorporated terms. 336 U.S. at 192. McComb thus

teaches that a court may frame an injunction in terms

broad enough to foreclose evasion—and may then

enforce the broad terms it wrote. It nowhere holds that

a court may enforce terms it never wrote.

The difference is everything. An enjoined party

facing a broad-but-explicit decree can locate its outer

boundary and, if unsure, seek construction before

acting. An enjoined party facing the Ninth Circuit’s

“spirit” enforcement of a narrow decree can do neither,

because the operative command exists only in

retrospect. Rule 65(d) posed no obstacle to the district

court’s issuing a broad-but-explicit decree. Whether the

violation the district court actually found—a violation

of California’s Unfair Competition Law resting on

informational harm from Apple’s anti-steering

provisions, Epic Games, 559 F. Supp. 3d at 1055–57—

would have supported a decree reaching Apple’s pricing

is a different question, and one the court never

13

confronted. The problem here is that it punished Apple

under the decree it wrote in 2021 for conduct that

decree never mentioned.

C.

A court may bind the confederates

and corporate shells through whom a

party evades.

The third tool answers the defendant who hides

behind a new corporate shell. An injunction binds not

only the parties but “other persons who are in active

concert or participation” with them. Fed. R. Civ. P.

65(d)(2)(C). Successors and assigns may be

“instrumentalities through which defendant seeks to

evade an order.” Regal Knitwear, 324 U.S. at 14. That

is textual enforcement too: the terms stay fixed, and

the Rule itself says who is bound.

That is all Sea Shepherd—the fountainhead of

the Ninth Circuit’s “spirit” rule—actually required.

There, an enjoined organization transferred assets and

operations so that a formally distinct entity could carry

on the very conduct the decree forbade. Inst. of

Cetacean Rsch. v. Sea Shepherd Conserv. Soc’y, 774

F.3d 935, 941–42 (9th Cir. 2014). Holding the

defendant to account for enjoined conduct carried out

through confederates enforces the decree’s terms

against persons the Rule explicitly reaches.

The panel below took Sea Shepherd’s borrowed

“spirit” language, id. at 949 (citation omitted), and

expanded it into a freestanding license to backfill terms

whenever “the strict letter of the injunction was not

violated.” Pet. App. 12a. It did so even though this case

involved no confederates and even though, on the

commission issue that drove the contempt finding, the

14

panel conceded that the injunction’s words did not

reach that conduct. Id. at 34a n.9. A phrase became a

dictum, the dictum became a doctrine, and the doctrine

swallowed the Rule.

D.

A court may modify the decree—

prospectively, on notice—to capture

changed circumstances and evasive

conduct.

An injunction is not a statute frozen at

enactment. A “continuing decree of injunction directed

to events to come is subject always to adaptation as

events may shape the need.” Swift, 286 U.S. at 114;

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

367, 380–81 (1992). “[S]ound judicial discretion may

call for the modification of the terms of an injunctive

decree if the circumstances, whether of law or fact,

obtaining at the time of its issuance have changed, or

new ones have since arisen”—a power that flows from

“the fact that an injunction often requires continuing

supervision by the issuing court.” Sys. Fed’n No. 91 v.

Wright, 364 U.S. 642, 647 (1961); see Fed. R. Civ. P.

60(b)(5).

And when a decree proves inadequate to its

tasks, the issuing court’s duty is to strengthen it—

prospectively—so that it serves them. See United

States v. United Shoe Mach. Corp., 391 U.S. 244, 251–

52 (1968). Modification is not a device for expanding a

decree beyond the wrong that justified it. In short, “the

remedy must be tailored to the violation, rather than

the violation’s being a pretext for the remedy.” People

Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 534

(7th Cir. 1997) (Posner, J.). The movant must show

that a significant change in circumstances warrants

15

revision, and the revision must be “suitably tailored” to

that change. Rufo, 502 U.S. at 383, 391.

Here the decree said all of that on its face.

Paragraph 2: “Any party may seek modification of this

Order, at any time, by written motion and for good

cause based on changed circumstances or otherwise.”

Pet. App. 166a. Paragraph 3 retained jurisdiction “over

the enforcement and amendment of the injunction.” Id.

at 166a–67a. Epic used that machinery in March 2024,

moving to enforce the injunction and to hold Apple in

contempt. Id. at 66a. But it never moved to modify.

The difference between the two approaches is no

technicality; it is a matter of due process. Modification

operates forward, upon motion, notice, and a hearing.

See Fed. R. Civ. P. 60(b)(5). Contempt sanctions only

past conduct—and, under Taggart and Rule 65(d), only

conduct explicitly proscribed by the decree. This Court

has enforced the line from both directions. In Pasadena

City Board of Education v. Spangler, a decree was

ambiguous and “the parties to the decree interpreted it

in a manner contrary to the interpretation ultimately

placed upon it by the District Court.” 427 U.S. 424, 438

(1976). The Court held that modification “should have

been ordered.” Id. But if ambiguity plus divergent

good-faith readings requires modification rather than

punishment, silence calls for it a fortiori.

The record shows that the machinery was

available here, and the district court invoked its form

when it chose to. The April 30, 2025 order permanently

enjoins Apple from—among five other explicit

prohibitions—“[i]mposing any commission or any fee

on purchases that consumers make outside an app.”

Pet. App. 159a. The panel reversed that provision as an

16

improper contempt sanction and remanded with

instructions to set a commission “as either a purgeable

civil contempt sanction or properly tailored

modification of the Injunction.” Id. at 34a.

The modification option was always available.

And as a matter of form, the 2025 order shows what

modification supplies: a command that speaks in words

Apple can read, going forward. Had Epic moved to

modify in 2024, the court would have had to decide, on

notice and with Epic bearing the burden, whether a

commission term was warranted and tethered to the

violation it had found. It might have concluded that it

was not. Either way, Apple would have known its

obligations before any attached, with the “explicit

notice” Taggart requires. 587 U.S. at 561. And any

later violation would support contempt without

controversy.

But the district court ran the sequence

backwards here. It punished Apple under the silent

decree—holding the company in civil contempt. Pet.

App. 141a. Then it referred Apple and one of its vice

presidents to the United States Attorney for criminal

investigation. Id. at 163a. Only then did it issue the

missing

words,

effective

immediately,

while

announcing that it “will not entertain a request for a

stay given the repeated delays and severity of the

conduct.” Id. at 161a. It closed with a flourish: “For this

Court, there is no second bite at the apple.” Id. at 164a.

The wordplay captures what went wrong.

Punish first, specify later is the very danger Bagwell

warned against when it called contempt “uniquely . . .

‘liable to abuse,’” 512 U.S. at 831 (citation omitted), and

it inverts this Court’s admonition that “only the least

17

possible power adequate to the end proposed should be

used in contempt cases,” Taggart, 587 U.S. at 562

(quoting Young v. United States ex rel. Vuitton et Fils

S.A., 481 U.S. 787, 801 (1987)).

III.

ADOPTING THE NINTH CIRCUIT’S RULE WILL

CORRUPT THE INCENTIVES OF EVERYONE THE

DECREE TOUCHES.

The panel’s remaining justification was

practical. Without the “spirit” rule, it contends,

“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.” Pet. App. 12a (citation omitted).

The district court put the same thought more vividly:

it would not play “whack-a-mole.” Id. at 159a. But the

way to end whack-a-mole is with a decree that names

the mole—not to whack a party for conduct the order

never mentioned.

If a decree’s “spirit” is enforceable retroactively,

no rational plaintiff will ever move to modify. Why

shoulder the burden of justifying a new command when

the old one can be stretched after the fact—with

compensatory sanctions and attorney’s fees as the

prize? Vagueness becomes an asset; precision, a

liability. The less an injunction says, the more its

“spirit” can be made to mean.

Continuing decrees contemplate continuing

supervision. Wright, 364 U.S. at 647. Requiring the

decree’s beneficiary to return to court before new

obligations attach keeps the burden of justifying

coercion where equity has always placed it—on the

party seeking it. See Trump v. CASA, Inc., 606 U.S.

18

831, 854 (2025) (“the broader and deeper the remedy

the plaintiff wants, the stronger the plaintiff’s story

needs to be” (citation omitted)). And it guarantees the

defendant notice and a hearing before its conduct

becomes punishable. A motion to modify is no quirk in

the system. It is the system.

Parties subject to arbitrary decrees, meanwhile,

cannot price that risk. A business under an “obey the

spirit” decree must guess not only at what the words

forbid but at what a judge may later say those words

secretly meant. This record shows how far that inquiry

can travel: from an order about links and buttons, Pet.

App. 166a, to a contempt finding about a price term the

order never mentioned, id. at 34a n.9, to a new decree

fixing that price at zero, id. at 159a, to a remand at

which the price will be fixed yet again, id. at 34a. No

compliance program can be built on a moving target,

because compliance programs distribute words—to the

officers, agents, and servants whom Rule 65(d)(2)

binds.

The predictable response to all this uncertainty

is overcompliance: forgoing products, terms, and prices

the order does not address, because proximity to the

decree’s shadow is itself a litigation risk. In a case

brought in the name of competition, that is a perverse

result. A remedy meant to free the market will instead

teach it to flinch. A textualist standard, by contrast,

costs the plaintiff only what equity has always

demanded of it—a motion, on notice, carrying the

burden of justifying a new command and showing that

it fits the wrong adjudicated—and it is the only regime

under which both sides know their obligations at the

time of decision rather than at the moment of

condemnation.

19

*

*

*

The Court should reverse, and in doing so it need

not break any new ground. Taggart already supplies

the rule: no civil contempt where the order’s explicit

terms leave a fair ground of doubt—and silence about

the offending conduct itself always leaves one. Nor

should the Court fear that reversal would disarm

district courts. The judge who faces an evasive party

holds four tools, every one of them textual: construe the

ambiguous term, draft the broad one, bind the

confederate, and modify the decree for tomorrow. On

remand, the district court remains free to frame

explicit, prospective commands within the limits of the

violation it actually adjudicated—and to enforce them

to the letter.

This Court should not revive the chancellor’s

foot. Much like the Ninth Circuit’s fear of evasion,

Selden’s complaint has been answered for centuries.

The answer for both is a decree that means what it says

and says what it means. This Court should require no

less of injunctions—and permit no more of contempt.

20

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

September 16, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org