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To Be or Not to Be: That is the Question for Illinois Brick in Apple v. Pepper

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On June 18, 2018, the U.S. Supreme Court accepted Apple’s petition for certiorari in Apple Inc. v. Pepper, appealing the Ninth Circuit’s decision that Apple is, by contract, the exclusive distributor of iPhone applications (“apps”) through the online Apple App Store platform, from which consumers purchase app distribution services directly and therefore have standing to challenge Apple’s mandatory 30% commission on all iPhone apps. The case presents a unique opportunity for the Supreme Court to revisit its holding in Illinois Brick[3] prohibiting antitrust claims by indirect purchasers and clarify the specific application of the doctrine to distribution markets—or, as the Department of Justice hinted in its amicus brief, issue a historic decision overturning the doctrine.

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