COVID-19 Reporting App Developers Appeal Loss to Apple Over Alleged Antitrust, Censorship Violations

On Tuesday, the creators of the “Coronavirus Reporter,” an application created at the outset of the global pandemic designed to collect and share “bioinformatics data” from users about COVID-19 symptoms, appealed a trial court decision in favor of Apple Inc. over its alleged monopolistic operation of the App Store and censorship of apps, including the plaintiffs’ own. 

Allegedly, the Coronavirus Reporter app was ready on Mar. 3, 2020, ahead of any competing COVID-19 apps. Yet, the developers claim that Apple refused to place it in the App Store, citing a policy that Apple could only accept software from verified sources such as the government, hospitals, NGOs, and healthcare companies.

Coronavirus Reporter contested Apple’s finding, but did not succeed in securing a place in the store. The plaintiffs filed suit in the District of New Hampshire in January 2021, seeking to vindicate Apple iPhone users’ right to enjoy the unrestricted use of their phones, including downloading innovative applications created by third party developers, the complaint said.

The New Hampshire case was voluntarily dismissed six months after it was filed, then refiled in San Francisco, California in July as a class action. On November 30, Judge Edward M. Chen dismissed the plaintiffs’ amended complaint’s antitrust claims for failure to plead a relevant market and antitrust injury.

Among other issues, the court ruled that the complaint “lacks clarity as to the relevant product markets for Plaintiffs’ antitrust claims,” noting that it proposes six markets, none of which considered cross-elasticity of demand for certain products or services. As to antitrust injury, the court found the plaintiffs’ theory, “asserting that Apple’s App Review process necessarily injures competition by excluding a number of developers from launching apps on Apple’s App Store,” flawed for two reasons.

First, the court said it only alleges injury on only one side of the transaction, developers, but fails to consider the second side implicating consumers, thereby undermining its viability. Second, “even if it is assumed that Apple exercised monopsonist market power in the apps transaction market, its decisions as to which apps are allowed to sell through the App Store is not an act that in itself causes harm the antitrust laws were designed to protect,” Judge Chen opined.

The court also rejected the plaintiffs’ breach of contract and RICO claims in its order denying leave to file an eighth amended complaint. According to Tuesday’s briefing schedule issued by the Ninth Circuit, the appellants’ opening brief is due Apr. 6, 2022.

The plaintiffs are represented by Associated Attorneys of New England and Apple by Gibson, Dunn & Crutcher LLP.