By Jacob Gershman and Tim Higgins
U.S. District Judge Yvonne Gonzalez Rogers says she abhors when
lawyers use hyperbole and grandstand like they are Perry Mason. She
says lunch breaks are the enemy of productivity and that parents
ought to observe Pi Day by feeding children pies. And she says she
helped her son find success as an aeronautical engineer by denying
him videogames.
Now, the tech world is waiting to hear the biggest pronouncement
of Judge Gonzalez Rogers's career when she decides whether Apple
Inc.'s grip over the distribution and payment of apps on its mobile
devices violates antitrust law. At stake is Epic Games Inc.'s
"Fortnite," a videogame with hundreds of millions of players and
control of the sprawling mobile app marketplace.
"Everyone wants to read her mind," said Chris Sagers, a
Cleveland State University law professor and an antitrust
scholar.
The conflict erupted after Epic Games introduced an in-app
payment system within "Fortnite" that skirted Apple commissions and
its policy requiring developers to use its own payment processing
services. That prompted Apple to expel "Fortnite" from the App
Store, provoking Epic's antitrust lawsuit and its claims that Apple
is exploiting the popularity of its devices to squeeze
developers.
Apple says that it isn't a monopoly and that competition is
flourishing in a distribution landscape that includes Google
Android software and gaming consoles. The trial, which kicked off
last week, is expected to run through May.
Neither Apple nor "Fortnite" maker Epic are newcomers in Judge
Gonzalez Rogers's courtroom in Oakland, Calif.
In 2014, she presided over a lawsuit that accused Apple of
suppressing competition for its iPod music players. A jury sided
with Apple.
Apple later prevailed in another case before Judge Gonzalez
Rogers. She declined to certify a class-action accusing Apple and
AT&T of unlawfully preventing iPhone customers from switching
carriers.
"She seems to keep ruling in favor of Apple," said Prof. Sagers,
but he and other scholars caution against reading too much into the
earlier cases and rulings.
Judge Gonzalez Rogers has hinted in the past that she is willing
to at least entertain an antitrust theory crucial to Epic's legal
argument: that a company can wield excessive power in the market
for its own products and services, according to John Newman, a
University of Miami antitrust law professor. Courts reviewing
antitrust complaints seldom draw the boundaries of a market as
narrowly as Epic is by claiming that Apple is illegally restraining
trade within its own Apple ecosystem.
Just weeks ago, Judge Gonzalez Rogers was clued into the
"Fortnite" craze while hearing a would-be class-action suit against
Epic that ultimately settled.
At a 2019 hearing, a puzzled Judge Gonzalez Rogers asked the
lawyers: "Is 'Fortnite' as big a deal as they're saying it is?"
"My daughters think it's kind of cool that I get to work for
them," Epic's lawyer responded. Judge Gonzalez Rogers offered her
own son as a rebuttal.
"He wanted to play videogames," the 56-year-old judge said. "I
told him 'no' so many times that out of paper, he created his own
and he made little cards that he would put into the sleeve so he
could play games. He's now an aeronautical engineer, and I am quite
happy that I said 'no.' "
Raised in Texas, Judge Gonzalez Rogers attended Princeton
University, working weekends cleaning houses and cutting grass to
help pay tuition.
She earned her law degree from University of Texas, Austin
School of Law and spent her early career as a litigator at Cooley
LLP in San Francisco. In 2008, then-California Gov. Arnold
Schwarzenegger appointed her to the Alameda County Superior Court.
In 2011, then-President Barack Obama elevated her to the federal
bench, with headquarters within an hour's drive of Apple, Google,
Facebook and Twitter.
Her docket is tech-heavy but varied. Last year she made
headlines with a sharply worded decision vacating a Trump
administration rollback of an Obama-era climate regulation. Early
on, she held that Abercrombie & Fitch unlawfully discriminated
against a Muslim employee by requiring her to remove her head
scarf. The teen-apparel retailer said its dress code was essential
to its brand image but agreed to change its "look policy" after the
ruling.
Some of her rulings have been overturned on appeal.
The Ninth U.S. Circuit Court of Appeals overruled her decision
to grant home detention to a man accused of trying to sell a
grenade launcher to an undercover federal agent. Judge Gonzalez
Rogers had allowed him to stay with his grandmother with a
requirement that he spend at least an hour and a half a day doing
book reports on stories of people who overcame difficult
circumstances.
Along the way, Judge Gonzalez Rogers has gained a reputation
among litigators as a jurist not to be trifled with. She has
scolded litigators for gesticulations and facial expressions she
found disrespectful, according to court transcripts.
In 2018, a corporate lawyer asked to extend a filing deadline.
His excuse was a scheduled ankle surgery. The judge was less than
sympathetic. "If you don't like my schedule, go to a magistrate
judge," she said. "They will be a lot nicer to you than I
will."
Others have seen a warmer side. Though not approving of lunch
breaks, she is a believer in snacks, feeding jurors chocolate-chip
cookie-dough muffins baked by her son, muffins made by her mother
and treats from Trader Joe's.
"She takes a sincere and not-so-stuffy interest in the law, but
it's incredibly human," said Thomas P. Brown, an antitrust lawyer
at Paul Hastings LLP in San Francisco.
In the Epic v. Apple trial, Judge Gonzalez Rogers has shown a
willingness to jump into questioning witnesses and had several
sharp ones for Epic Chief Executive Tim Sweeney. In one exchange,
she had dismissed Mr. Sweeney only to stop as she changed her mind
with one more question about what he would do if he lost the case:
"What is your backup plan?"
Mr. Sweeney seemed unprepared. "If Apple's actions are lawful,
then I acknowledge Apple would have the right to remove Epic from
the developer program for any reason or no reason, and then it
would be up to Apple to decide," he said.
Her stance on videogames may be evolving. She has noted that her
daughter has a Nintendo Switch. At a hearing last year, a lawyer
for Epic was trying to make the point that the iPhone was unique
for its portability compared with videogame consoles, when she
interrupted.
"You're forgetting the Switch," she said. "I went online
yesterday, and, at least, in the Bay Area, you can't get a Switch
anywhere."
Write to Jacob Gershman at jacob.gershman@wsj.com and Tim
Higgins at Tim.Higgins@WSJ.com
(END) Dow Jones Newswires
May 12, 2021 08:14 ET (12:14 GMT)
Copyright (c) 2021 Dow Jones & Company, Inc.
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