Supreme Court Agrees to Hear Apple Appeal of 9th Circuit Ruling Allowing Antitrust Suit

The Supreme Court agreed to hear an Apple appeal in a class-action antitrust lawsuit alleging it monopolized distribution of App Store applications in Apple v. Robert Pepper, et al., docket 17-204. Justices granted an Apple cert petition asking them to review a 9th U.S. Circuit Court of Appeals ruling that the suit could proceed, said the high court's order list Monday. A district court dismissed the suit under a 1977 Illinois Brick Co. v. Illinois precedent "holding that consumer plaintiffs alleging monopolization of distribution services Apple provides to app developers were necessarily seeking pass-through damages," said the petition. "The Ninth Circuit reversed, holding -- in an acknowledged split with the Eighth Circuit -- that consumers can sue whoever delivers goods to them, even if they seek pass-through damages. The question presented is: Whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense." The solicitor general in May asked the court to grant Apple's petition, arguing the 9th Circuit misapplied the Illinois Brick rule, which prevents indirect purchasers from seeking certain antitrust damages passed on by third parties -- in this case the developers (see 1805090051). Apple argues only the developers, not consumers, can sue in this case. The Supreme Court granted motions of ACT|The App Association and the Washington Legal Foundation to file amicus briefs. The court denied cert to wireless customer petitioners who argued "non-negotiable arbitration" clauses that waive their right to sue providers were "worthy of some constitutional introspection" under the First Amendment, in Marcus A. Roberts, et al. v. AT&T Mobility, docket 17-1287.