Plaintiffs Seek to Add Claim in Long-Running Apple Antitrust Suit

On Friday, consumer plaintiffs moved for permission to file a fourth amended complaint in the 2011 antitrust case against Apple Inc. for alleged monopolization of the iOS applications aftermarket. The plaintiffs want to add a California Unfair Competition Law (UCL) claim, citing Judge Gonzalez Rogers’ September 10 decision finding Apple liable for violation of the same law in Epic Games’ antitrust suit.

The instant class action, also pending before Judge Gonzalez Rogers, alleges that Apple violated the Sherman Act’s monopolization provision by dominating “the aftermarket for iPhone apps and preventing the sale of any such apps outside the App Store, a closed market Apple created, and thereby forcing consumers to pay supracompetitive prices.”

The case took a trip to the Ninth Circuit after the district court held that the plaintiffs lacked standing under Illinois Brick. The appellate court reversed that determination, and subsequently, the Supreme Court affirmed. After more than five and a half years on appeal the case was remanded for further proceedings.

Presently, the motion explains, discovery is ongoing and the class certification hearing is scheduled for November 16. The plaintiffs argue that amendment is not the result of undue delay and will not prejudice Apple.

The plaintiffs further contend that no new discovery is required for the UCL claim because of its factual overlap with their Sherman Act claims, and that adding the cause of action will not prejudice Apple. The plaintiffs also assert that “the amendment would not be futile since Apple already litigated (and lost) a UCL claim in the related Epic action, which alleged the same antitrust conduct.”

The plaintiffs propose that they file a supplemental brief to address certification of the UCL claim, and that Apple be permitted to file an opposition. According to the motion, these two additional briefs will not delay the court-ordered schedule.

Wolf Haldenstein Adler Freeman & Herz LLP and  Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C.  are proposed co-class counsel and, Calcaterra Pollack LLP is counsel for plaintiff Robert Pepper. Apple is represented by Gibson, Dunn & Crutcher LLP.