On May 13, 2019, the U.S. Supreme Court ruled 5-4 that Apple may face antitrust liability in a consumer suit over purchases made from the Apple App Store. That may sound like an unremarkable proposition (and Apple in fact may still prevail). But the basis for the decision in Apple v. Pepper is one that will reverberate for years in the courts and the U.S. economy – that consumers who buy products from a platform like the App Store may be considered a direct purchaser and thus allowed to bring lawsuits against the platform concerning alleged anticompetitive conduct. Other technology companies may face antitrust liability they did not expect, companies may seek to restructure their business dealings to avoid liability, and there may be continued challenges to the viability of the federal (but not state) antitrust doctrine that limits liability only to direct (not indirect) purchasers. And – in an interesting fact not unnoticed by Supreme Court observers – the majority opinion written by newly-seated Justice Kavanaugh drew a dissenting opinion by his fellow Trump appointee Justice Gorsuch and joined by all of the other Republican-appointed justices.
Come hear immediate reactions to the Apple v. Pepper decision from two experienced antitrust practitioners who participated in the case – Andrew Finch, Principal Deputy Assistant Attorney General in the U.S. Department of Justice Antitrust Division, and Lauren Weinstein of MoloLamken’s Washington, DC, office, who represented a group of 18 antitrust professors that filed an amicus brief in the case. Adam Biegel of Alston & Bird’s Washington, DC, office and a member of the Executive Board of the Federalist Society’s Corporations, Securities, and Antitrust Practice Group, will moderate the teleconference.
Andrew Finch, Principal Deputy Attorney General, Antitrust Division, Department of Justice
Lauren M. Weinstein, Attorney, MoloLamken LLP
Moderator: Adam Biegel, Partner, Alston & Bird