In a surprising development, Apple and Epic Games have together declined Judge Yvonne Gonzalez Brown’s suggestion that the Fortnite case be decided by a jury. The parties apparently disagreed with the judge’s statement that “individual judges [don’t] have the be-all and end-all here,” and want her to decide both the facts and merits of Epic’s antitrust allegations against Apple and Apple’s countersuit seeking compensatory damages.

Given this, it would seem neither party anticipated a meaningful advantage coming from a jury trial. WIth Epic’s positioning as the underdog waging a battle of principle against the world’s largest company, one might expect that Epic would want to be presenting to a jury, but perhaps the game developer felt that longstanding broadly positive public views of Apple and its products would limit any advantage there. 

It’s difficult to predict the impact of this development, but one outcome likely will be a trial that moves more quickly through this court on its way to a presumed appeal to the Ninth Circuit (as Judge Gonzalez Roberts predicted with resignation in Monday’s hearing).

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