DOJ urges Supreme Court to reverse Apple’s Epic contempt over 27% commission — but not the ‘plain button’ ban

The U.S. Department of Justice, through the Solicitor General, has filed an amicus brief supporting neither party in Apple Inc. v. Epic Games, Inc., No. 25-1311, asking the Supreme Court to split the Ninth Circuit’s civil-contempt judgment in the long-running App Store anti-steering fight.

The brief PDF is dated September 2026 and was posted on the Court’s docket around September 21. Coverage from 9to5Mac flagged the filing on September 22. This is a distinct step from Apple’s own opening merits brief earlier this month.

What the government asks the Court to do

In the amicus, the United States argues that civil contempt is improper when there is a “fair ground of doubt” about whether an injunction’s express terms barred the conduct—echoing the Court’s Taggart line of cases—and that lower courts erred by leaning on the injunction’s “spirit.”

Applied to this case, the Solicitor General’s office says the Court should:

• Reverse the contempt finding tied to Apple’s 27% commission on directed off-app purchases
• Affirm contempt for Apple’s “plain button”-only restriction
• Vacate and remand the remaining link-placement / call-to-action design contempt holdings for reconsideration under the fair-ground-of-doubt standard

The brief’s conclusion frames the judgment as one that should be reversed in part, affirmed in part, and vacated in part.

Why DOJ says the 27% commission is not clear contempt

The original permanent injunction—quoted in Apple’s filings and the DOJ brief—restrained Apple from prohibiting developers from including buttons, external links, or other calls to action that direct customers to purchasing mechanisms other than In-App Purchase. It does not, on its face, mention commissions or fee schedules.

According to the government, that silence matters. The amicus argues that charging a 27% commission on steered off-app purchases (Apple’s stated figure after a 3% “cost of payments” discount from a 30% IAP-style rate) raises different legal issues than banning steering outright. Even if Epic and the lower courts viewed the fee as making alternatives cost-prohibitive, DOJ says there remains at least a fair ground of doubt that the injunction’s text barred that pricing structure—so civil contempt was the wrong vehicle.

The brief is careful not to bless any particular commission forever; it argues the contempt pathway was improper on notice grounds.

Where DOJ still sides against Apple: ‘plain buttons’

On design restrictions, the government draws a hard line. The injunction separately protects buttons and links. In DOJ’s telling, Apple’s so-called “plain button”—which lower courts described as effectively invisible / indistinguishable from a link—meant Apple allowed only link-like CTAs while prohibiting real buttons. That reading, the brief says, leaves no fair ground of doubt, so contempt on that piece should be affirmed even under the stricter text-based standard.

Other placement and styling limits, DOJ says, should go back to the Ninth Circuit for a clean fair-ground-of-doubt analysis rather than stand on a “spirit of the injunction” framing.

Other amici and the road ahead

9to5Mac also notes parallel amicus briefs from groups including the U.S. Chamber of Commerce, Chamber of Progress, former federal antitrust enforcers, ICLE, CCIA/NetChoice/SIIA, and the Washington Legal Foundation. Those filings broadly urge courts to enforce injunctions by their terms, not a perceived spirit—though they are not the government’s brief and do not all map 1:1 onto DOJ’s split disposition.

Separately, district-court proceedings over what commission (if any) Apple may charge on linked-out purchases continue on a different track while the Supreme Court reviews the contempt standard itself.

Next on the merits calendar: Epic’s response brief remains due November 13, 2026, per the docket timing reflected in Apple’s opening-brief coverage. Oral argument is not yet set.

Sources: DOJ/SG amicus brief (PDF), Supreme Court docket No. 25-1311, 9to5Mac, Apple opening merits brief coverage.