Supreme Court of the United States · Official docket →

Apple Inc. v. Robert Pepper, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 14-15000 · judgment January 12, 2017

Decided · May 13, 2019

Pre-decision estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) and its progeny hold that the damages remedy in antitrust disputes belongs only to the immediate victims of the anticompetitive conduct ("direct purchasers"), and not to downstream parties claiming "pass-through" damages ("indirect purchasers"). Electronic marketplaces such as Apple's App Store present a new wrinkle on this doctrine, because the marketplace sponsor (e.g., Apple) interacts with and delivers goods "directly" to consumers, but as an agent on behalf of third party sellers. The district court dismissed this action under Illinois Brick, holding that consumer plaintiffs alleging monopolization of distribution services Apple provides to app developers were necessarily seeking pass-through damages. The Ninth Circuit reversed, holding-in an acknowledged split with the Eighth Circuit-that consumers can sue whoever delivers goods to them, even if they seek pass-through damages. The question presented is: Whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

Counsel of record

For petitioner
Daniel M. Wall
Latham & Watkins LLP

For respondent
David C. Frederick
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Case

Conference history
Distributed for 3 conferences

Amicus briefs
1 cert-stage · 12 merits
(8 supporting pet./neither, 4 respondent)

Argument & decision

Argued November 26, 2018 — Daniel M. Wall · David C. Frederick. Audio and transcript

Decided May 13, 2019. Opinion by Kavanaugh.

Proceedings

Jun 17 2019
JUDGMENT ISSUED.
May 13 2019
Adjudged to be AFFIRMED. Kavanaugh, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
Nov 26 2018
Argued. For petitioner: Daniel M. Wall, San Francisco, Cal.; and Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae). For respondents: David C. Frederick, Washington, D. C.
Oct 29 2018
Reply of petitioner Apple Inc. filed. (Distributed)
Oct 19 2018
CIRCULATED
Oct 17 2018
Application (18A399) granted by The Chief Justice extending the time to file petitioner's reply brief on the merits to and including October 29, 2018.
Oct 15 2018
Record requested from the U.S.C.A. 9th Circuit.
Oct 11 2018
Application (18A399) to extend the time to file a reply brief from October 24, 2018 to October 29, 2018, submitted to The Chief Justice.
Oct 09 2018
SET FOR ARGUMENT ON Monday, November 26, 2018
Oct 01 2018
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Oct 01 2018
Brief amici curiae of Antitrust Scholars filed.
Oct 01 2018
Brief amici curiae of Texas, Iowa, and 29 Other States filed.
Oct 01 2018
Brief amicus curiae of Open Markets Institute filed.
Oct 01 2018
Brief amicus curiae of American Antitrust Institute filed.
Sep 28 2018
Blanket Consent filed by Petitioner, Apple Inc..
Sep 24 2018
Brief of respondents Robert Pepper, et al. filed.
Sep 10 2018
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Aug 17 2018
Brief amicus curiae of Washington Legal Foundation filed.
Aug 17 2018
Brief amicus curiae of United States filed.
Aug 17 2018
Brief amicus curiae of Computer & Communications Industry Association filed.
Aug 17 2018
Brief amicus curiae of Chamber of Commerce of the United States of America filed.
Aug 17 2018
Brief amicus curiae of BSA | The Software Alliance filed.
Aug 17 2018
Brief amicus curiae of Verizon Communications Inc. in support of neither party filed.
Aug 17 2018
Brief amicus curiae of ACT The App Association filed.
Aug 16 2018
Brief amicus curiae of R Street Institute filed.
Aug 10 2018
Brief of petitioner Apple Inc. filed.
Aug 10 2018
Joint appendix filed. (Statement of costs received.)
Aug 07 2018
Blanket Consent filed by Respondent, Robert Pepper, et al.
Jul 03 2018
Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 10, 2018. The time to file respondents' brief on the merits is extended to and including September 24, 2018.
Jun 25 2018
Motion for an extension of time to file the briefs on the merits filed.
Jun 18 2018
Motion for leave to file amicus brief filed by ACT The App Association GRANTED.
Jun 18 2018
Motion for leave to file amicus brief filed by Washington Legal Foundation GRANTED.
Jun 18 2018
Petition GRANTED.
Jun 11 2018
DISTRIBUTED for Conference of 6/14/2018.
May 22 2018
DISTRIBUTED for Conference of 6/7/2018.
May 08 2018
Brief amicus curiae of United States filed.
Oct 10 2017
The Solicitor General is invited to file a brief in this case expressing the views of the United States.
Sep 20 2017
DISTRIBUTED for Conference of 10/6/2017.
Sep 20 2017
Reply of petitioner Apple Inc. filed. (Distributed)
Sep 15 2017
Objection to motions of the App Association and the Washington Legal Foundation to fie briefs in support of petitioner from respondents Robert Pepper, et al. filed.
Sep 06 2017
Motion for leave to file amicus brief filed by Washington Legal Foundation.
Sep 06 2017
Brief of respondents Robert Pepper, et al. in opposition filed.
Sep 06 2017
Motion for leave to file amicus brief filed by ACT The App Association.
Aug 02 2017
Petition for a writ of certiorari filed. (Response due September 6, 2017)