Kavanaugh Joins Liberals, Says iPhone Users Can Sue Apple For App Monopoly

Kavanaugh Joins Liberals, Says iPhone Users Can Sue Apple For App Monopoly

Justice Neil Gorsuch wrote a dissent for four conservative justices.

At the heart of the complaint is the so-called "Apple tax", a 30% fee on apps in the App Store that has also prompted a complaint to the European Commission by streaming music rival Spotify.

Apple shares were trading down $10 at 187.04 by midday. -China trade war, only to slump further on an unfavorable ruling by the U.S.

New Justice Brett Kavanaugh joined the court's four liberals in rejecting a plea from Cupertino, California-based Apple to end the lawsuit over the 30% commission the company charges software developers whose more than 2 million apps are sold through the App Store. In an earlier hearing, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor questioned Apple's reference to the Illinois Brick doctrine, relating to direct versus indirect purchasers.

Explaining the ruling from the bench, Kavanaugh said the 1977 precedent was "not a get-out-of-court-free card for monopolistic retailers", an apparent allusion to the popular board game Monopoly.

Apple has argued that they are not a monopoly as consumers could always purchase apps from other app stores by buying another device, a somewhat ridiculous position.

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The court on Monday agreed with the consumers.

"If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier-whether, for example, the retailer employed a markup or kept a commission", Kavanaugh wrote.

The court has not declared Apple monopolists yet, but this ruling does allow the case to proceed. And because Apple doesn't allow app makers to distribute iPhone apps any other way, this behavior is doubly injurious as iPhone users have no other choices.

Tom's Hardware has reached out to Apple for comment, but did not receive an immediate response. They were supported by 30 state attorneys general, including from Texas, California and NY.

A district court decision had said that the iPhone users did not have standing to bring their antitrust claim because the developers - not Apple - are the ones selling the apps.

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