Epic Games Claims Antitrust Fees Not Recoverable, Contractual Breach Claims Not Segregated So As To Be Recoverable, And “Fees On Fees” Not Recoverable Due To A Failure To Meet And Confer Before Filing Of The Substantial Fee Request.
In Epic Games, Inc. v. Apple Inc., Case No. 4-20-CV-05640-YGR-TSH (N.D. Cal., Doc. No 886, dated Feb. 16, 2023), Epic Games is pushing back at a $73.4 million fee reimbursement request by Apple after Epic Games did not prevail on certain antitrust and breach of contract claims. First, Epic Games argues that fees incurred by Apple in the defense of antitrust claims are precluded altogether by Carver v. Chevron U.S.A., Inc., 119 Cal.App.4th 498 (2004), which has been applied to federal antitrust claims says Epic Games in its opposition arguments. Second, fees for a “largely uncontested” contractual breach claim were not recoverable because Apple did not attempt to segregate the fees from those which were incurred on the antitrust claim. Third, “fees on fees”—the work on the fees motion—were not recoverable because Apple did not meet and confer on the fee motion before it was filed.