The burden of proof falls in plaintiffs Epic Games and not defendants Apple Inc, per legal framework

II. LEGAL FRAMEWORK

Preliminary injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction, is an "extraordinary and drastic remedy," that is never awarded as of right. Munaf v. Geren , 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal citations omitted). "It is so well settled as not to require citation of authority that the usual function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits." Tanner Motor Livery, Ltd. v. Avis, Inc. , 316 F.2d 804, 808 (9th Cir. 1963). A preliminary injunction is "not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment." Sierra On-Line, Inc. v. Phoenix Software, Inc. , 739 F.2d 1415, 1422 (9th Cir. 1984) (citation omitted).

In order to obtain such relief, plaintiffs must establish four factors:

(1) they are likely to succeed on the merits;

(2) they are likely to suffer irreparable harm in the absence of preliminary relief;

(3) the balance of equities tips in their favor; and

(4) an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

With respect to the success on the merits and balance of harms factors, courts permit a strong showing on one factor to offset a weaker showing on the other, so long as all four factors are established. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011). In other words, "if a plaintiff can only show that there are serious questions going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc. , 709 F.3d 1281, 1291 (9th Cir. 2013) (citations and quotations omitted). Thus, under the Ninth Circuit's " ‘sliding scale’ approach to these factors," "when the balance of hardships tips sharply in the plaintiff's favor, the plaintiff need demonstrate only ‘serious questions going to the merits.’ " hiQ Labs, Inc. v. LinkedIn Corp. , 938 F.3d 985, 992 (9th Cir. 2019) (quoting Alliance for the Wild Rockies , 632 F.3d at 1131 ). The Court addresses each.

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