Apple’s battle with Epic over Fortnite could reach jury trial next July

Apple and Epic met in a virtual court hearing on Monday to debate whether Fortnite should be allowed to remain in Apple’s App Store while the two fight an even bigger battle over whether Apple is violating federal antitrust law. California Judge Yvonne Gonzalez Rogers said didn’t issue any update to her previous ruling, which upheld Apple’s ban on Fortnite while the antitrust case is ongoing. Instead she said the companies should expect to hear from her in writing.

Rogers said that it’s likely the case, which she added was “the frontier of antitrust law,” will be heard in July 2021. She recommended a trial by jury in order that the final judgement reached would be more likely stand up to appeal, although said it’s up to Apple or Epic to request this.

“I know that I’m just a stepping stone for all of you,” she said. “Whoever loses is going to take it up and say everything I did was wrong — that’s what litigators do. There’s no hard feelings, that’s the job. But I think it is important enough to understand what real people think.”

The suit began on Aug. 13, when Epic turned on undisclosed code buried in its popular Fortnite battle royale game for iPhones and iPads. The game, which pits up to 100 players against one another in a cartoonish but complex last-man-standing shootout, counts more than 250 million players. And that Thursday, Epic circumvented Apple’s payments systems for the app, allowing customers to buy items like new looks for their characters directly from Epic, rather than through Apple’s payment system that charges up to a 30% commission.

Katherine Forrest, lawyer for Epic, said that by doing so the company was not cheating or sabotaging Apple, as the company has claimed. But Rogers challenged Epic over its decision to circumvent Apple’s policy in spite of its explicit contractual relations with the company.

“You were not forthright,” she said. “You were told you couldn’t do it, and you did. There’s an old saying, a rose by any other name is still a rose […] There are plenty of people in the public could consider you guys heroes for what you did, but it’s still not honest.”

As a compromise, Rogers suggested that Apple could allow Fortnite back on the App Store if the money collected by Epic in the meantime was held in an escrow account for the duration of the trial. Apple’s lawyers said they would have to confer with the company, but agreed with the judge that it solved some of the issues. But Epic’s lawyers immediately shot down the offer saying the court should not provide assistance to “unlawful provisions by monopolists.”

CNET’s Ian Sherr contributed to this report.