Supreme Court Considers How the Illinois Brick Doctrine Applies to Apple’s App Store and Other Electronic Marketplaces
The Supreme Court heard oral arguments in Apple v. Pepper, No. 17-204, on November 26, 2018, to decide if purchasers of “apps” on the Apple iPhone may sue Apple for alleged monopolization of the market for iPhone apps, despite the fact that those apps are developed and priced by third parties. During argument, the Court re-considered the Illinois Brick doctrine—which prohibits suits under the Sherman Act by so-called “indirect purchaser” plaintiffs—and its application to this case. Justices Breyer, Ginsburg, Kagan, Kavanaugh, and Sotomayor pushed Apple’s counsel on how Illinois Brick applies to this set of circumstances where app purchasers did buy apps directly from Apple. By contrast, Chief Justice Roberts, and to some extent Justices Alito and Gorsuch, questioned Plaintiffs’ counsel more extensively on how Plaintiffs’ claim could survive a motion to dismiss under the Illinois Brick doctrine. Justices Alito and Gorsuch also asked counsel for both parties whether Illinois Brick should be overturned.