Kavanaugh Sides with Liberal Justices, Court Will Allow Lawsuit over iPhone Apps

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A divided Supreme Court ruled Monday that consumers can pursue an antitrust lawsuit that claims Apple has unfairly monopolized the market for the sale of iPhone apps.

Justice Brett Kavanaugh joined the court’s four liberals in rejecting a plea from Cupertino, California-based Apple to end the lawsuit. Apple charges a 30 percent commission to software developers whose more than 2 million apps are sold through Apple’s App Store, and iPhone users who must purchase software for their smartphones exclusively through the App Store bear that cost in turn.

IPhone users filed the suit. Kavanaugh wrote the majority ruling.

“In other words, Apple as retailer pockets a 30% commission on every app sale,” said Kavanaugh, one of President Donald Trump’s two high court appointees.

That was enough to persuade that at this early stage of the legal fight, the lawsuit can continue, he said.

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Joining Kavanuagh were Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Justice Neil Gorsuch, Trump’s other pick, wrote the dissent on behalf of himself, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

The consumers’ complaint against Apple is the kind of case earlier high court rulings said was not allowed under federal laws that prohibit unfair control of a market, Gorsuch wrote.

Apple had argued it’s merely a pipeline between app developers and consumers, and that iPhone users have no claims against Apple under antitrust law.

The suit could force Apple to cut the commission it charges software developers. A judge could triple the compensation to consumers under antitrust law if Apple ultimately loses the suit.

There has been exponential growth in the availability of apps since Apple created the App Store in 2008 with 500 choices.

“‘There’s an app for that’ has become part of the 21st-century American lexicon,” Kavanaugh said.

Tech giants were firmly against allowing the lawsuit to proceed, according to The Washington Post.

The App Association, a trade group representing Facebook and Google, among others, argued it would hurt software developers and make other storefronts for third-party apps vulnerable to litigation.

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In the short term, we’ll have to see if law firms look to create class action lawsuits against those platforms,” The App Association’s Executive Director Morgan Reed told The Post.

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

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