The Institute today hosted a panel of experts to discuss the antitrust standing case Apple v. Pepper, which will be argued before the Supreme Court on November 26. Apple’s Chief Litigation Counsel Noreen Krall and counsel for the plaintiffs, Mark Rifkin, debated the merits of the case, which asks whether iPhone users may sue Apple for alleged monopolization via the App Store, or whether they are barred from suit as “indirect purchasers” under the 1970s Supreme Court case Illinois Brick.
After the parties’ debate, a panel of experts took the stage moderated by Amy Howe of SCOTUSblog and AmyLHowe.com. Morgan Reed, Executive Director of ACT | The App Association, discussed the amicus brief his group filed in support of Apple, which argued that app developers, not iPhone users, are in a direct relationship with Apple for transactions in the iPhone store, and users should be barred from suit.
Sandeep Vaheesan of the Open Markets Institute, which filed an amicus brief in support of plaintiffs, argued that Apple’s influence over app prices and other terms in the App Store shows they are in a direct relationship with iPhone users, who should be able to sue for the harm they allege arises in supracompetitive pricing and restricted outputs in the App Store.
David Ashton, Associate Attorney General in the Texas AG’s Antitrust Division, discussed the brief he led on behalf of Texas, Iowa and 29 other states arguing that Illinois Brick’s distinction between “direct” and “indirect” purchases elevates form over market realities, and should be overturned. The panel was also joined by Rich Parker, partner at Gibson Dunn and former Director of the FTC’s Bureau of Competition from 1998-2001, who argued that Illinois Brick serves an important role so that alleged antitrust violators are not unfairly exposed to double recovery.
An audience of antitrust attorneys, in house counsel, consumer groups, press and students asked the panel’s views about why the Court granted cert, the likely outcome, and broader implications for how the Court views online platforms—including implications of the AmEx case.
The case goes before the Supreme Court on November 26th. You can read the briefs and view commentary at http://www.scotusblog.com/case-files/cases/apple-v-pepper/.