tuesday, 14 may of 2019


Apple Loses at U.S. Supreme Court on iPhone App Antitrust Suit

The U.S. Supreme Court ruled that consumers can press ahead with a lawsuit that accuses Apple Inc. of using its market dominance to artificially inflate prices at its App Store.

The 5-4 ruling could add to pressure the company faces to cut the 30% commission it charges on app sales. Lawyers pressing the case have said they will seek hundreds of millions of dollars on behalf of overpaying consumers. Apple fell 4.6% to $188.08 at 10:44 in New York.

Apple contended the lawsuit was barred under a 1977 Supreme Court ruling that said only direct purchasers of a product can collect damages for overpricing under federal antitrust law. That decision was designed in part to keep companies from having to pay twice for the same misconduct.

But Justice Brett Kavanaugh, joining the court’s liberal wing in the majority, said App Store customers meet that test because they buy directly from Apple.

"The iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain," Kavanaugh wrote. "There is no intermediary in the distribution chain between Apple and the consumer."

Apple and its tech-industry allies had said before the ruling that a decision allowing the lawsuit could lead to expensive antitrust claims against other companies that run online marketplaces, potentially affecting Alphabet Inc.’s Google, Amazon.com Inc. and Facebook Inc.

In dissent, Justice Neil Gorsuch said the ruling "exalts form over substance." He was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.

"To evade the court’s test, all Apple must do is amend its contracts," Gorsuch wrote. "Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers’ payments will flow the other way: directly to the developers, who will then remit commissions to Apple."

When a user buys an app, Apple collects the money, keeps the 30% commission and gives the rest to the developer. The company told the high court it passed $26.5 billion on to developers in 2017.

Apple is part of an app economy that will grow from $82 billion last year to $157 billion in 2022, according to App Annie projections.

Apple argued that the lawsuit’s focus was the 30% commission, something the company said is paid by the developers, not the app purchasers. Although the consumers said they pay for the commissions through higher app prices, Apple said those are the type of "pass-through" damages barred under the Supreme Court’s 1977 Illinois Brick v. Illinois ruling.

Thirty-one states supported the consumers, urging the Supreme Court to allow the lawsuit and also to eliminate the direct-purchaser requirement altogether by overturning the Illinois Brick decision. Most states already allow downstream purchasers to collect damages, and the group says courts have been able to ensure that companies don’t have to double-pay.

The case is Apple v. Pepper, 17-204.

(Published by Bloomberg, May 13, 2019)


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