No. 21-16506 IN THE U STATES COURT OF A N C

1 No. 21-16506 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EPIC GAMES, INC., Plaintiff-counter-defendant-Appellant, v. APPLE, INC., Defendant-counter-claimant-Appellee. On Appeal from the United STATES District COURT for the Northern District of California No. 4:20-cv-05640-YGR Hon. Yvonne Gonzalez Rogers BRIEF OF UTAH AND 34 OTHER STATES AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-COUNTER-DEFENDANT-APPELLANT AND REVERSAL Office of the attorney General 350 N. State Street, Ste. 230 Box 142320 Salt Lake City, UT 84114 (801) 538-9600 SEAN D. REYES attorney General of Utah MELISSA A. HOLYOAK* Solicitor General STANFORD E. PURSER Deputy Solicitor General *Counsel of Record Counsel for Amici STATES Additional counsel listed with signature block Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 1 of 35 i TABLE OF CONTENTS TABLE OF AUTHORITIES.

2 Ii INTRODUCTION AND INTEREST OF AMICI STATES .. 1 SUMMARY OF THE ARGUMENT .. 2 ARGUMENT .. 5 I. The district COURT erred in holding that Section 1 of the Sherman Act does not apply to unilateral contracts.. 5 A. Under rules of statutory interpretation, a Section 1 contract includes unilateral contracts.. 6 B. Excluding unilateral contracts from Section 1 contract is inconsistent with Supreme COURT precedent.. 12 C. Excluding unilateral contracts or contracts of adhesion from Section 1 is bad public policy because it would impede antitrust enforcement.. 14 II. The district COURT s rule-of-reason analysis failed to balance the overall competitive effects of Apple s restraints.. 18 CONCLUSION.

3 25 ADDITIONAL COUNSEL .. 27 CERTIFICATE OF COMPLIANCE .. 29 CERTIFICATE OF SERVICE .. 30 Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 2 of 35 ii TABLE OF AUTHORITIES Federal Cases Abramski v. United STATES , 573 169 (2014).. 11 Aerotec Int l, Inc. v. Honeywell Int l, Inc., 836 1171 (9th Cir. 2016) .. 5 Albrecht v. Herald Co., 390 145 (1968).. 14 Arizona v. Maricopa Cnty. Med. Soc y, 457 332 (1982).. 20 Bd. of Trade of Chicago v. United STATES , 246 231 (1918).. 18 Bhan v. NME Hosps., Inc., 929 1404 (9th Cir. 1991) .. 24 Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020) .. 7 Business Elecs. Corp. v. Sharp Elecs. Corp., 485 717 (1988).. 12 Cal. Dental Ass n v.

4 , 526 756 (1999).. 21 Cleveland v. United STATES , 531 12 (2000) .. 11 Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 1148 (9th Cir. 2001) .. 24 Continental , Inc. v. GTE Sylvania Inc., 433 36 (1977) .. 20 Copperweld Corp. v. Independence Tube Corp., 467 752 (1984).. 3, 13, 14 Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 3 of 35 iii Davis v. Michigan Dep t of Treasury, 489 803 (1989).. 10 In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058 ( Cal. 2019) .. 23 Mem l Coliseum Comm n v. NFL, 726 1381 (9th Cir. 1984) .. 24 Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 877 (2007).. 19, 20, 22 Morissette v. United STATES , 342 246 (1952).

5 8 Nat l Soc y of Pro. Eng rs v. United STATES , 435 679 (1978).. 12, 18 NCAA v. Alston, 141 S. Ct. 2141 (2021) .. 18, 19, 20, 21 NCAA v. Bd. of Regents, 468 85 (1984) .. 19 Richardson v. Hardwick, 106 252 (1882).. 9, 10 Standard Oil Co. v. United STATES , 221 1 (1911) .. 12 State Oil Co. v. Khan, 522 3 (1997) .. 19, 20 United STATES v. Rodgers, 466 475 (1984).. 11 Yates v. United STATES , 574 528 (2015).. 10 Federal Statutes 15 1 .. passim Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 4 of 35 iv 15 15c .. 1 Other Authorities 73 Am. Jur. 2d Statutes 150 (2021) .. 11 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

6 8 Bilateral and unilateral contracts, 1 Williston on Contracts 1:17 (4th ed.) .. 9, 15, 16 Daniel A. Farber & Brett H. McDonnell, Is There a Text in this Class? The Conflict Between Textualism and Antitrust, 14 J. Contemp. Legal Issues 619 (2005) .. 7 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947) .. 8 Gabe Feldman, The Demise of the Rule of Reason, 24 Lewis & Clark L. Rev. 951 (2020) .. 23, 25 Maurice Wormser, The True Conception of Unilateral Contracts, 26 Yale 136 (1916) .. 9 Restatement (First) of Contracts 1 .. 9, 10 Restatement (Second) of Contracts 1 .. passim Samuel J. Stoljar, The False Distinction Between Bilateral and Unilateral Contracts, 64 Yale 515 (1955).

7 15 Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 5 of 35 1 INTRODUCTION AND INTEREST OF AMICI STATES Amici curiae, the State of Utah and 34 other STATES , respectfully submit this brief in support of plaintiff-counter-defendant-appellant Epic Games, Inc. Epic sued defendant-counter-claimant-appellee Apple, Inc. over Ap-ple s practices relating to its iOS App Store. Following a sixteen-day bench trial, the district COURT ruled in favor of Apple on the nine counts alleging violations of state and federal antitrust laws and in favor of Epic on the remaining California unfair competition count. Epic s flagship video game Fortnite had more than 115 million registered players access-ing Fortnite on an iOS device before Apple removed Fortnite from the App Store.

8 Each of the Amici STATES has consumers that use the iOS platform and has an interest in ensuring a competitive marketplace for its con-sumers. Further, the attorneys general of the Amici STATES are authorized by Congress to bring federal antitrust actions to protect their citizens from the harmful effects of anticompetitive conduct. 15 15c. Amici STATES thus have a strong interest in ensuring that federal courts apply clear and effective standards for liability under the Sherman Act, Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 6 of 35 2 15 1 et seq., so that they may effectively enforce antitrust laws in all aspects of the economy, including the smartphone industry which, with hardware, products, and services, is approaching a trillion dollars annually.

9 Accordingly, Amici STATES file this brief to explain why this COURT should reverse the district COURT s order. SUMMARY OF THE ARGUMENT While the Amici STATES generally support Epic s arguments to re-verse the district COURT s decision, the STATES brief focuses on just two of those reasons. First, the district COURT erred in deciding that Section 1 of the Sher-man Act does not apply to a unilateral contract. That s wrong under settled canons of statutory interpretation. In relevant part, Section 1 prohibits [e]very contract, combination, .. conspiracy, in restraint of trade. The Act does not define contract, but the term had a broad, ac-cepted common law meaning when the Act became law in 1890.

10 Then, as now, a unilateral contract was simply one of various types of contracts bilateral, implied, express, formal, informal that were legally enforce-able. Per rules of statutory construction, Congress adopted this common Case: 21-16695, 01/27/2022, ID: 12353946, DktEntry: 42, Page 7 of 35 3 law understanding when using the term contract in Section 1. Like-wise, the interpretive canon requiring statutory terms be read in context shows that Section 1 s broad terms [e]very contract and combina-tion or conspiracy meant to capture a wide range of agreements that could harm competition. The district COURT s interpretation also runs counter to Supreme COURT Section 1 jurisprudence.