SAN FRANCISCO—In the Ninth Circuit Court of Appeals, NetChoice recently filed an amicus curiae brief with Chamber of Progress in the case Epic v. Apple.
Earlier this year, a Ninth Circuit panel affirmed an injunction against Apple under California’s Unfair Competition Law for conduct that was beneficial to competition, not anti-competitive. The panel reached this flawed conclusion after adopting a novel “categorical legal bar” rule for evaluating evidence in antitrust cases.
Apple is now petitioning the Ninth Circuit for a rehearing, arguing that the Court’s prior decision—that a determination of conduct as reasonable under antitrust laws does not prevent it from being enjoined as “unfair” under the Unfair Competition Law—defies binding precedent and effectively rewrites the California statute.
NetChoice and Chamber of Progress filed a brief in support of Apple’s petition. In it, we explain that the “categorical legal bar” rule adopted by the panel is not only out of step with precedent, it also imposes liability on companies for conduct that benefits consumers.
“The rule adopted by the Ninth Circuit will make key evidence of beneficial effects on competition irrelevant when courts assess unfair competition claims,” said Nicole Saad Bembridge, Associate Director of the NetChoice Litigation Center. “As a result of this rule, courts may find companies liable for conduct that benefits consumers and contributes to a healthy, competitive marketplace. To ensure relevant evidence is properly considered in this case, we urge the Court to grant a rehearing.”
As we argue in our brief, the “categorical legal bar” rule is problematic because it (1) negates evidence of procompetitive rationales; (2) disregards key evidence that Apple’s anti-steering provision protects consumers from deceptive off-app services and content; and (3) negates precedents and policies bearing on whether an Unfair Competition claim serves the failure of a parallel antitrust claim.
As such, NetChoice and Chamber of Progress urge the court to grant Apple a rehearing.