Gustafson Gluek attorneys among primary drafters of amicus brief filed to Support Antitrust Laws (“COSAL”) in Ninth Circuit Epic v. Apple appeal.

Gustafson Gluek attorneys Michelle Looby and Kaitlyn Dennis were among the primary drafters of an amicus brief filed by the Committee to Support the Antitrust Laws (“COSAL”) in the Ninth Circuit Epic v. Apple appeal. 

In Epic v. Apple, the district court accepted Apple’s position that as contracts of adhesion, its contracts with developers were immune from liability under Section One of the Sherman Act. COSAL urged the Ninth Circuit to reject that holding, which is contrary to established law and, if accepted, would legalize a broad range of anticompetitive conduct simply because it was undertaken by a dominant market player. COSAL also argued that Apple’s unsuccessful argument—that product design could never, as a matter of law, constitute illegal exclusionary conduct under Section 2—was correctly rejected by the lower court, and that exclusionary product design must be analyzed on a case-by-case basis in light of market realities and context. 

The brief is available on the COSAL website.