The U.S. Court of Appeals for the Ninth Circuit’s opinion in Epic Games, Inc. v. Apple, Inc., No. 25-2935 (Dec. 11, 2025), isn’t one the typical readers of this outlet might notice.

After all, it’s mostly about a tech company beef, as the caption might indicate. And the opinion is about one aspect of that beef, where the district court ordered Apple to do something, and then … it didn’t. As the opinion summary details:

After a bench trial, the district court enjoined Apple from certain anticompetitive business practices related to its App Store, and this court affirmed the injunction. Apple claimed to comply with the injunction, but it instead prohibited App Store developers from using buttons, links, and other calls to action without paying a prohibitive commission to Apple, and it restricted the design of the developers’ links to make it difficult for customers to use them.

Slip op. at 2.

The district court then did what district courts tend to do when a party plays way too cute: “[t]he district court found Apple in contempt, and it issued an order to address Apple’s violations of the injunction.” Id.

Apple then did what big tech does and appealed. The Ninth Circuit affirmed the contempt order and findings. That alone did not make this case blogworthy (at least on this blog).

What caused the opinion to appear here is Apple’s argument on appeal that the contempt order was a taking. That’s right, a taking. Not too surprising was Apple’s appeal tactic of throwing everything it had at reversal. What might be surprising is that it make a takings argument.

In what the court labeled “other miscellaneous challenges to the district court’s contempt sanctions,” Apple claimed that it is worked a taking when the district court forbid Apple “from charging a commission on linked-out purchases. According to Apple, the commission prohibition is problematic because it will not receive the compensation that it claims for its intellectual property.” Slip op. at 45.

The Ninth Circuit made short work of this argument, first concluding that Apple had waived it by not raising it in a prior appeal. The court then held that even if not waived, the district court’s contempt order was not a taking. Here’s the entirety of the court’s analysis:

Judicial decisions “contraven[ing] the established property rights” of a person may violate the Takings Clause. Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 733 (2010). “[S]everal factors . . . have particular significance” in deciding whether a taking has occurred, Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978), and those factors do not favor Apple.

First, the “character of the governmental action” matters, and takings are “more readily . . . found when the interference with property can be characterized as a physical invasion by government.” Id. There is no physical taking here. Second, courts consider “[t]he economic impact of the regulation on the claimant.” Id. Here, while the April 30 Order would deprive Apple of “its anticompetitive revenue stream,” see Epic III, 781 F. Supp. 3d at 952, Apple is hardly otherwise uncompensated for its efforts to create the iOS and App Store. It may, for example, charge consumers for iOS devices and for commissions on in-app purchases. Third, an action is more likely a taking if it “interfere[s] with distinct investment-backed expectations.” Penn. Cent., 438 U.S. at 124. Here, Apple had no expectation that it would be able to charge commissions, much less anticompetitive commissions, on linked-out purchases when investing into its iOS system because it previously prohibited such transactions.

Slip op. at 45-46.

Wow.

Epic Games, Inc. v. Apple, Inc., No. 25-2935 (9th Cir. Dec. 11, 2025)