LGN Partner Files Amicus Brief on Behalf of COSAL

LGN Partner Kristen Marttila filed an amicus brief on behalf of the Committee to Support the Antitrust Laws (COSAL) in the Ninth Circuit Epic v. Apple litigation, supporting Plaintiff-Appellant Epic’s petition for en banc review. In the underlying litigation, Epic had alleged that Apple’s prohibition on third-party app stores and in-app-payment (IAP) systems from operating on its proprietary iOS platform violated the antitrust laws.

The panel opinion, like the district court below, gave only cursory treatment to the final step of its Rule of Reason analysis, in which anticompetitive effects of the challenged conduct must be balanced against any pro-competitive justification to determine the net effect of the conduct on consumer welfare. Rather than re-affirming the need for a meaningful balancing step, the panel held that “[i]n most instances,” that step could be satisfied with a single sentence recognizing that “a business practice without a less restrictive alternative is not, on balance, anticompetitive.” COSAL argued that this conclusion failed to recognize that the balancing step is the entire point of the Rule of Reason inquiry, and the panel’s formalistic application would allow even the most egregious anticompetitive conduct if the wrongdoer could offer some minor, pretextual, and post hoc explanation of procompetitive benefit. The brief further argued that Supreme Court precedent and persuasive authority from other courts of appeal make clear that courts must engage in a robust balancing process in Rule of Reason cases, and that this robust inquiry is needed to protect consumers and competition.

Ms. Marttila chairs COSAL’s amicus committee. Also representing COSAL in this matter were Geoffrey Kozen, Stephen Safranski, and Matthew Leighton at Robins Kaplan.

LGN is a longtime member of COSAL, which was founded in 1986 to promote and support the enactment, preservation, and enforcement of a strong body of antitrust laws in the United States.