WASHINGTON—Today, NetChoice filed a brief to the U.S. Supreme Court with Chamber of Progress, asking the high court to grant review of the case Apple v. Epic Games.
Earlier this year, the Ninth Circuit Court of Appeals wrongly upheld a nationwide injunction against Apple’s anti-steering rules under California’s Unfair Competition Law for conduct that was beneficial to competition, rather than anti-competitive — the first federal appellate court to affirm such a holding. The panel reached this flawed conclusion after adopting a novel “categorical legal bar” rule for evaluating evidence in antitrust cases.
To remedy this, Apple is asking the Supreme Court – which recently sustained similar anti-steering rules as procompetitive in Ohio v. Am. Express Co. – to review the Ninth Circuit’s flawed decision.
If the Ninth Circuit’s ruling is allowed to remain in effect, it will effectively blind future courts to some of the most important evidence, public-policy issues, and legal precedent implicated by parallel UCL claims—compromising competition and consumer welfare in the process.
“To ensure key evidence of procompetitive effects is properly considered in this case, we urge the Supreme Court to grant review,” said Nicole Saad Bembridge, NetChoice Associate Director of Litigation. “The Ninth Circuit’s holding will undermine the entire ‘freemium’ business model. If app stores cannot enforce anti-steering rules for in-app purchases, they will need to start charging per download. This would diminish developers’ abilities to acquire new customers, dampen innovation, reduce competition between apps, and increase barriers to entry – the burden of which falls particularly heavily on smaller developers.”
Our brief in support of Apple’s petition explains that the Ninth Circuit’s holding:
- Inaugurates a new legal framework that guarantees future error in the Ninth Circuit;
- Makes the public worse off by improperly labeling commercial practices “unfair” when they are in fact procompetitive; and
- Negates consideration of relevant legal precedents and policies bearing on the legality of anti-steering provisions.
Read our amicus curiae brief with Chamber of Progress here.
Please contact Krista Chavez at press@netchoice.org with inquiries.