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Epic Games, Inc v Apple Inc [2021] FCAFC 122

Michael Hodge QC (with D Roche) appeared for the First Intervener, instructed by the Australian Government Solicitor in the matter of Epic Games, Inc v Apple Inc [2021] FCAFC 122.

Epic Games alleged that Apple contravened ss 45, 46, and 47 (Pt IV) of the Competition and Consumer Act 2010 (Cth) concerning its App Store restrictions on iOS devices. Epic also alleged Apple contravened s 21 of the Australian Consumer Law. An app developer agreement governed their relationship. An exclusive jurisdiction clause required litigation between Epic and Apple to occur in the Northern District of California. Apple had sought a stay of the proceedings and succeeded at first instance. Epic appealed. On appeal, Epic contended, amongst other things, that the primary judge erred in failing to give effect to the public policy considerations in favour of the Federal Court determining the claims notwithstanding the exclusive jurisdiction clause. The ACCC was granted leave to intervene and made submissions as to the strong public policy in favour of the Federal Court determining Pt IV claims.

The Court determined that the primary judge had made three errors in his consideration of whether there was a strong reason to refuse to grant the stay: he had not made a cumulative assessment of factors against the grant of a stay; he had not recognised the juridical disadvantages of the claims being heard in a US Court; he had not correctly recognised the role of Apple Pty Ltd, the Australian subsidiary that was also a respondent. It therefore fell to the Full Court to re-exercise the discretion and the Full Court concluded that there were public policy considerations in favour of the Federal Court determining Pt IV claims that provided strong reasons for declining to stay the proceeding.

The judgment is published here.

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