In the latest twist to theEpic Games’ lawsuit against Apple and the battle over mandatory fees charged by Apple’s app store, a California judge has recommended that the case be tried by a jury.

Describing it as “the frontier of antitrust law,” Judge Yvonne Gonzalez Rogers said if this this route was pursued, the final judgment reached would be more likely to stand up to appeal, although she said it’s up to Apple and Cary-based Epic to request this. It could be heard as soon as July 2021, reported CNET.

The suggestion came 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 over whether Apple is violating federal antitrust law.

According to CNET, Judge Rogers 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.

She did, however, suggest a compromise. She said 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.

“I know that I’m just a stepping stone for all of you,” she was quoted as saying. “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. Do these security issues concern people or not?”

The legal war erupted on Aug. 13 when Epic released a new payment system that skirts giving Apple and Google a 30 percent cut of the sales.

Epic Games is now offering the “Fornite Mega Drop” — a permanent 20 percent discount on V-Bucks, the in-game currency used in “Fortnite.” However, it only works if players paid Epic Games directly rather than using Apple or Google’s payment systems.

This broke rules applied by both stores.

Google and Apple subsequently banned “Fortnite” from its app stores.

Epic is now suing Google and Apple over the ban, while Apple has filed a countersuit.

In court on Monday, Rogers seemed less than impressed with the Epic’s arguments and challenged the developer over its decision to circumvent Apple’s policy in spite of its explicit contractual relations with the company.

“Don’t try to convince me that you were forthright when you weren’t,” Judge Rogers was quoted as saying.
“You were not forthright,” she said. “You were told you couldn’t do it, and you did. There are plenty of people in the public could consider you guys heroes for what you did, but it’s still not honest.”

Epic Games vs Apple Inc.: Why Apple may win this legal skirmish but lose the war