When Apple v. Pepper goes to trial, Apple likely to win

So say Gene Munster, Jim Cramer and Apple. But they’ve been wrong before.

Excerpts from notes and commentary that have landed on my desktop. More as they come in.

Gene Munster, Loup Ventures: Apple v. Pepper Opens Door for a Lawsuit That Apple Will Likely Win. We do not believe Apple is engaging in anticompetitive behavior. We see the necessity for Apple to charge developers to operate and maintain a platform and ecosystem. The benefits of a single party operating that platform for developers and, ultimately, consumers, include trust, safety, security, curation, and access to customers.

Apple Public Relations: Today’s decision means plaintiffs can proceed with their case in District court. We’re confident we will prevail when the facts are presented and that the App Store is not a monopoly by any metric… Developers set the price they want to charge for their app and Apple has no role in that.  The vast majority of apps on the App Store are free and Apple gets nothing from them. The only instance where Apple shares in revenue is if the developer chooses to sell digital services through the App Store.

Justice Brett Kavanaugh, SCOTUS: Apple Inc. v Pepper: If accepted, Apple’s theory would provide a road map for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.

Katy Huberty, Morgan Stanley: Apple v. Pepper: Spicy, Not Sweet. The loss in Apple v. Pepper means Apple will likely face antitrust lawsuits, by both consumers, and potentially app developers (which raises the threat of Spotify’s recent complaints to the European Commission), and be forced to plead their case in court. It’s worth noting Apple management and others, such as Google Play on the Android platform, have vigorously argued that their App Store business model has solid justification. Supporting this view, Software distribution margins through the competitive retail store and commercial IT distribution markets are historically 20-30%. And, many large technology companies have thrived on the App Store without paying Apple a cut. Outperform. $240.

Ben Thompson, Stratechery: The Implications of Apple v Pepper. Frankly, I do believe that developers are being harmed by Apple’s policies, and I do believe those policies are illegal. The implication of that, though, is that it is developers who should have the right to sue Apple, not consumers… The biggest problem in this case is not the misapplication of precedent, but the fact that both the law generally and precedent specifically are wholly unprepared to deal with the realities of technology.

Eriq Gardner, Hollywood Reporter: How Apple’s Loss at Supreme Court Could Impact Entertainment. Buying an app at the iTunes store may be analogous to using Ticketmaster to purchase access to a live concert. Thus, the high court’s decision on who can sue over antitrust injury could become impactful in different contexts.

Ashley Gold and Christopher Stern, The Information: Apple’s Grip on Apps Faces Challenge From Supreme Court Ruling. Other tech companies that, like Apple with its App store, serve as platforms for selling services should be a ‘little bit spooked,’ said [Sally Hubbard, director of enforcement strategy at Open Markets]. The ruling should also be a wake-up call for the Justice Department, which filed a brief in support of Apple, that it was on the wrong side of a Supreme Court case, she added.

Samik Chatterjee, J.P. Morgan: Latest thoughts on lawsuits and tariffs. While it is difficult to precisely attribute the magnitude of the share price decline between tariffs and the lawsuits, we think it is fair to say that the majority of the share price decline is driven by tariff concerns.

Krish Sankar, Cowen: Quantifying the long-term impact. The SCOTUS ruling does not take a stance on any wrongdoing or anti-competitive behavior. While there are several possible outcomes, any remediation that entails some “giveback” of prior revenues generated from the App Store fee could range from $3.1B to $9.2B (2.7% of gross cash at the midpoint) assuming consumers receive 10-30% of giveback with developers. Through the end of FY18, we estimate cumulative App Store net operating profit at $30.7B or 13.6% of gross cash.

Jim Cramer, Real Money: You Better Strap Yourself In. But let’s go back to the real worry here for this market: Apple. It was a one-two punch here because first the U.S. Supreme Court is allowing the possibility of a lawsuit against Apple for inflated prices for apps because of its monopoly-like power. That doesn’t at all mean that the plaintiffs will prevail. It does mean the case is not going to be thrown out. And second, Apple could really feel some pain if China boycotts it. I just think that if it happens the Chinese would be very afraid to lose all of the manufacturing that Apple does. But who knows?

Adam Liptak and Jack Nicas, New York Times: Supreme Court Allows Antitrust Lawsuit Against Apple to Proceed. The court’s 5-to-4 vote featured an unusual alignment of justices, with President Trump’s two appointees on opposite sides. Justice Brett M. Kavanaugh, who joined the court in October, wrote the majority opinion, which was also signed by the court’s four more liberal justices. Justice Neil M. Gorsuch, who joined the court in 2017, wrote the dissent.

Noah Feldman, Bloomberg Opinion: Kavanaugh Takes a Shot at Apple, and Big Tech Should Take Note. To grasp the significance, you have to realize that under Supreme Court precedent, the suit against Apple could reasonably have come out either way… The underlying ideological issue is how difficult or easy the court should make it to sue Apple. And that’s why Kavanaugh’s surprise vote matters going forward. His vote signals that in potential future cases, he won’t reflexively go with the conservative impulse to make it harder to sue big companies over antitrust issues.

My take: Apple insists it is not a monopoly “by any metric,” but isn’t every platform a monopoly in its own domain?

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One Comment

  1. Fred Stein said:

    Eriq gets it. The Supreme Court has opened Pandora’s box for suits of all sorts against all forms of controlled selling on and off line. They have set a precedent that such suits can be brought against defendants that don’t have Apple’s deep pockets.

    Amusement Parks, Country Clubs, and to a lesser degree, shopping malls provide controls to protect the consumers and their brands.

    Turning the case itself: Apple only controls 15% of the SmartPhone business. It is much higher in the US. There is almost no need to buy any Apps, as there are free versions of nearly every service you need. Customers can jai break their iPhones and lose the safety and privacy measures that Apple enforces as part of the App Store.

    0
    May 14, 2019

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