Antitrust, UCL and Privacy

Competition: Spring 2019, Vol 29, No. 1

A PRACTITIONER’S PERSPECTIVE: WHY THE SUPREME COURT SHOULD NOT OVERTURN ILLINOIS BRICK IN APPLE V. PEPPER1

By Steven N. Williams2

I. INTRODUCTION

During the course of oral argument in Apple v. Pepper, counsel for plaintiff was asked several times why the plaintiffs’ bar did not support calls for the Supreme Court to overrule Illinois Brick Co. v. Illinois.3This article reviews the issues raised in Pepper, and provides this lawyer’s response to the question of why Illinois Brick should not be disturbed.

The plaintiffs in Pepper purchased apps for their iPhones, iPads and other Apple devices from Apple’s App Store. These apps can only be sold and purchased through Apple’s App Store.4 This model is unique to Apple. The transactions in which the plaintiffs purchase apps are solely between the plaintiffs and Apple. Apple does not mandate the prices that app developers may charge for their products when sold through the App Store. Many are free. If they are not free, their price must end in .99. iPhone users pay Apple when they buy an app from the App Store. Apple retains 30% of the purchase price paid for an app, and remits the remaining 70% to the app developer.

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