By Natalie DeCoste

The long-awaited legal battle between Apple and Epic is coming closer as the witness lists for the two companies have been released.

Apple and Epic filed tentative witness lists on April 26 for their antitrust battle that is set to take place next week.

Epic Games sued Apple in August of 2020, alleging the tech giant engaged in monopolistic behaviors when Apple pulled Epic’s game Fortnite from its App Store. Apple had removed Fortnite from its App Store, the only way to get an app onto an Apple device, after Epic added a direct payment option to the game to circumvent the 30% cut that Apple takes from all digital transactions.

Apple’s policies require that all payments go through its App Store and do not allow apps to be installed on Apple products if they do not come from the App Store. Many app developers view these measures as a means to stifle competition under the guise of security.

The witness lists are tentative, and they do not guarantee that every witness on the list will be called. Additionally, the lists do not say when exactly the possible witnesses will be taking the stand. The lists do appear to give a good insight into the structure of the arguments that the two companies have prepared for their legal battle.

The expert testimony in the case includes several professors with expertise in law, economics, marketing, computer security, and antitrust.

Witnesses on the list include Lorin M. Hitt, Ph.D; Francine Lafontaine, Ph.D; Richard Schmalensee, Ph.D; Daniel L. Rubinfeld; Dominique Hanssens, Ph.D; Aviel D. Rubin, Ph.D; and James E. Malackowski.

Lorin Hitt is the University of Pennsylvania Professor in Operations, Information, and Decisions who has calculated Apple’s digital game transaction market share to argue on behalf of Apple that the company does not have a monopoly and to point out that Apple’s fees are the same as other game transaction platforms.

“My market share calculations support the conclusion that Apple does not have market or monopoly power in a properly defined market. Apple’s share of the digital game transaction market lies between 23.3% and 37.5%. In light of my conservative approach, these market share estimates, especially at the high end, are likely to overstate Apple’s true market share and are, in any event, inconsistent with Apple having substantial market power. The entry of new game transaction platforms is also inconsistent with Apple having market power.” said Hitt.

Meanwhile Epic’s witness list includes Epic Games CEO Tim Sweeney, who is on both Epic and Apple’s lists, and other Epic employees. The list includes  iTunes chief Eddy Cue and former iOS software chief Scott Forstall. Both companies’ lists include Microsoft Xbox executive Lori Wright. Other leaders in the tech industry are included throughout both lists.

One notable removal from the witness list is Vivek Sharma. Sharma is the vice president of gaming at Facebook and a noted critic of Apple’s app store business. Sharma had been set to testify on behalf of Epic, but is no longer slated to do so. Epic has not responded to requests for comments as to why that may be.

The full witness lists can be found below:

 

APPLE’S WITNESS LIST

Apple employees

  • Tim Cook, CEO 
  • Craig Federighi, senior vice president, software engineering 
  • Matt Fischer, App Store VP 
  • Eric Gray, director of commerce and payments 
  • Trystan Kosmynka, senior director of marketing 
  • Phil Schiller, Apple fellow 
  • Michael Schmid, head of game business development, App Store 
  • Scott Forstall, former senior vice president, iOS Software 
  • Phillip Shoemaker, former technology director, app review 

Epic employees

  • Steve Allison, Epic Games Store general manager 
  • Andrew Grant, engineering fellow 
  • Joseph Kreiner, VP of business development 
  • Thomas Ko, senior director, head of online business strategy and operations 
  • Mark Rein, VP of business development 
  • Tim Sweeney, CEO 
  • Daniel Vogel, COO 
  • Matthew Weissinger, VP of marketing 
  • Joseph Babcock, former CFO 
  • Haseeb Malik, former marketing manager 
  • David Nikdel, online gameplay systems lead 
  • Nick Penwarden, VP of engineering 
  • Alec Shobin, senior marketing manager 

Third-party witnesses

  • Lori Wright, VP of Xbox business development, Microsoft 
  • Benjamin Simon, founder and CEO of Yoga Buddhi Co. 
  • Shelley Gould, president and co-founder of Neuro-Fin / SmartStops 
  • Aashish Patel, director of product management, Nvidia 
  • App Annie 
  • Roblox Corporation

Expert witnesses

  • Richard Schmalensee, emeritus professor of economics, MIT
  • Lorin Hitt, professor of operations, information, and decisions, University of Pennsylvania Wharton
  • Francine LaFontaine, professor of economics, University of Michigan
  • Daniel Rubinfeld, professor of law, NYU
  • James Malackowski, CEO, Ocean Tomo
  • Aviel Rubin, technical director, Johns Hopkins University Information Security Institute
  • Dominique Hanssens, distinguished research professor of marketing, UCLA Anderson Graduate School of Management

 

EPIC’S WITNESS LIST

 

Epic employees

  • Steve Allison, Epic Games Store general manager 
  • Andrew Grant, engineering fellow 
  • Thomas Ko, senior director, head of online business strategy and operations  examination.)
  • Tim Sweeney, CEO 
  • Matthew Weissinger, VP of marketing 

Apple employees

  • Matt Fischer, App Store VP 
  • Trystan Kosmynka, senior director of marketing 
  • Eddy Cue, senior vice president, internet software and services 
  • Craig Federighi, senior vice president, software 
  • Scott Forstall, former senior vice president, iOS software 
  • Eric Friedman, head of fraud engineering, algorithms, and risk 
  • Eric Gray, director of commerce, subscriptions, and pricing 
  • C.K. Haun, senior director, developer technical services 
  • Ron Okamoto, former VP of worldwide developer relations 
  • Carson Oliver, director of business management, App Store 
  • Shaan Pruden, senior director of partnership management and worldwide developer relations 
  • Mark Rollins, finance manager 
  • Phillip Shoemaker, former technology director, app review 

Third-party witnesses

  • Lori Wright, VP of Xbox business development, Microsoft 
  • Benjamin Simon, founder and CEO of Yoga Buddhi Co. 
  • Aashish Patel, director of product management, Nvidia 
  • Adrian Ong, senior VP of operations, Match Group 

Expert witnesses

  • Susan Athey, economics of technology professor, Stanford University Graduate School of Business
  • Ned Barnes, managing director, Berkeley Research Group
  • Michael Cragg, principal and chairman, The Brattle Group
  • David Evans, chairman, Global Economics Group
  • Wenke Lee, chair, College of Computing, Georgia Institute of Technology
  • Nancy Mathiowetz, professor emerita, department of sociology, the University of Wisconsin-Milwaukee
  • James Mickens, professor of computer science, Harvard University
  • Peter Rossi, professor of marketing, economics and statistics, UCLA