Epic and Apple agree on one thing: they don’t want a jury trial null

During Monday’s hearing on Epic’s request for an injunction that would force Apple to return Fortnite to the iOS App Store while the legal action between them proceeds, the judge presiding over the matter said she’d prefer that the lawsuit be tried in front of a jury. In a filing made the following day, Epic and Apple were actually able to find common ground on something: They’d prefer not to bring a jury into it.

“During the September 28, 2020, hearing on Epic’s Motion for a Preliminary Injunction, the Court indicated that it ‘[did not] want to try two cases’ and was ‘inclined to try both cases at once,’ and asked the parties to inform the Court by 5:00 PM PT on September 29, 2020, whether either party demands a jury trial,” the filing states.

“Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the Court, and not by a jury. Therefore, with Epic’s consent, Apple hereby withdraws its demand for a jury trial pursuant to Federal Rule of Civil Procedure 38(d). The parties respectfully request that the case (including any claims and counterclaims) proceed to a bench trial on a schedule determined by the Court.”

The comment about “two cases” is a reminder that there actually two separate actions going on here: Epic’s lawsuit against Apple over “monopolistic practices” on the App Store, and Apple’s breach of contract countersuit against Epic. Apple had initially demanded a trial by jury in its lawsuit.

A bench trial is one in which a judge, rather than a jury, hears the case and delivers a finding. The American Bar Association says that despite what you may have seen on television, bench trials are actually more common in civil matters than jury trials. In theory, a judge should be better equipped to follow complex legal arguments than a jury.

A trial date has not yet been set, but the judge in the case said yesterday that it likely won’t take place until July 2021.

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