Supreme Court Associate Justice Brett Kavanaugh on Monday joined the four liberal justices on the high court in rejecting a plea from tech-giant Apple to end a major antitrust lawsuit wrote over its App Store.
Kavanaugh, appointed by President Donald Trump last year, wrote the majority opinion that agreed the lawsuit can move forward in a lower court. Justice Neil Gorsuch, another Trump appointee who joined the court in 2017, wrote the dissent.
Four iPhone users sued Apple, claiming that it was monopolizing the retail market for the sale of apps. The company charges up to a 30% commission to developers who sell their products through the app store and bans them from selling their apps elsewhere.
“The plaintiffs’ allegations boil down to one straightforward claim: that Apple exercises monopoly power in the retail market for the sale of apps and has unlawfully used its monopoly power to force iPhone owners to pay Apple higher-than-competitive prices for apps,” Justice Kavanaugh wrote.
The majority also shut down Apple’s argument that app developers set their own prices, meaning that consumers should not be able to sue the company.
“A ‘who sets the price’ rule,” he wrote, “would draw an arbitrary and unprincipled line among retailers based on retailers’ financial arrangements with their manufacturers or suppliers.”
“Under Apple’s rule a consumer could sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service,” he wrote. “But a consumer could not sue a monopolistic retailer when the manufacturer or supplier set the retail price and the retailer took a commission on each sale.”
Apple said in a statement that it was “confident we will prevail when the facts are presented and that the App Store is not a monopoly by any metric.”
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