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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: President Joe Biden's latest list of judicial nominations is all

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Speaker 1: about California, where the federal district courts have the most

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Speaker 1: emergencies and vacancies of any state, joinings Professor Carl Tobias

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Speaker 1: of the University of Richmond Law School, So how many

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Speaker 1: nominations did Biden make to California courts? Last Wednesday? The

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Speaker 1: President nominated three nominees for the ninth Circuit from California

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Speaker 1: and to Central District of California and one Eastern District

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Speaker 1: California nominees. But there are still in California many many openings.

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Speaker 1: There are emergencies another fifteen district ones that have no nominees.

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Speaker 1: So still the state is the word case scenario. But

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Speaker 1: it's great to have at least some nominees, and and

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Speaker 1: to have the three for the nine Circuit is important,

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Speaker 1: of course, because President Trump confirmed ten people for that

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Speaker 1: twenty nine judge court. Senator Diane Feinstein said in a

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Speaker 1: tweet after reviewing more than three hundred applications to the

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Speaker 1: federal judiciary, I'm confident that these nominees will make outstanding juris.

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Speaker 1: If they've reviewed hundreds of applications, why haven't they proposed

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Speaker 1: more nominees to fill the spots. Well, that's a good question.

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Speaker 1: I assume that she and Senator Padea sent much smaller

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Speaker 1: packages of recommendations to the White House, and my guess

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Speaker 1: is they are in the White House, but there are

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Speaker 1: many other vacancies around the country, and other senators I

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Speaker 1: think sent their recommendations earlier, and so there may be

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Speaker 1: a bit of a backlog there. But the White House

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Speaker 1: has been moving very quickly, and I assume we'll have

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Speaker 1: another package of californ on your nominees in the short term,

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Speaker 1: so hopefully that will work more efficiently and more quickly

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Speaker 1: going forward. So let's talk about the nominees for the

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Speaker 1: ninth Circuit three vacancies. And you have Lucy co she's Asian,

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Speaker 1: you have Gabriel Sanchez who's Latino, and Holly Thomas, who's Black.

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Speaker 1: So is the attempt here to diversify the ninth Circuit. Well,

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Speaker 1: certainly those nominees are diverse in terms of ethnicity and

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Speaker 1: to some extent experience, though all three are sitting judges,

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Speaker 1: and of course Lucy Co is one of the finest

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Speaker 1: district judges in the nation, was nominated by President Obama,

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Speaker 1: but the Senate majority Republicans refused to give her a

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Speaker 1: confirmation vote, I think because they were afraid that then

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Speaker 1: she would make a record and be positioned for the

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Speaker 1: Supreme Court. And so the nominees are very experienced and

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Speaker 1: of course bring ethnic and gender diversity to the court.

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Speaker 1: Also diversity in experience. Judge Sanchez dealt with corrections and

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Speaker 1: criminal justice matters when he was in the Jerry Brown administration,

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Speaker 1: and Judge Thomas was a civil rights lawyer. Yes, and

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Speaker 1: she worked at the Department of Justice Civil Rights Division

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Speaker 1: as well. So you're exactly right. They bring experiential diversity,

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Speaker 1: as do almost all of the appellate and many district nominees.

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Speaker 1: So far from this president has President Biden nominated any

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Speaker 1: white male. A few, for example, down in the four

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Speaker 1: Circuit where I am Toby Heightens was a solicitor general

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Speaker 1: is a Solicitor General for Virginia, and Clerkford, Justice Ginsburg

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Speaker 1: and Eddie Becker on the third Sir Kit and he

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Speaker 1: is a white male. But there are very few others.

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Speaker 1: That's exactly right, And Lucy co would be the first

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Speaker 1: Korean American federal appellate judge. That's sort of hard to

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Speaker 1: believe that she's the first. Do you think she'll be

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Speaker 1: attacked by Republicans for some of her rulings? Well, she maybe,

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Speaker 1: but she has handled some incredibly difficult and complex cases

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Speaker 1: emanating from Silicon Valley, Uh, And I think uh done

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Speaker 1: a fine job in those cases, and so I don't

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Speaker 1: think there's any issue about what a fine judge she is,

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Speaker 1: and so I'm certain that she will be confirmed. You

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Speaker 1: mentioned that former President Trump put ten nominees on the

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Speaker 1: ninth circuit. Is that circuit more Democratic appointees more Republican

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Speaker 1: appointees at this point? And will these new nominations change anything?

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Speaker 1: They won't change the composition in terms of appointing president.

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Speaker 1: They're sixteen appointed by Democratic presidents and thirteen appointed by

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Speaker 1: Republican presidents. And the three who are assuming senior status,

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Speaker 1: we're all appointed by Democratic presidents. But you're earning twenty

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Speaker 1: or thirty year because these nominees are much younger, of

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Speaker 1: course than the people assuming senior status or in their

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Speaker 1: sixties or seventies. So now tell us about the nominees

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Speaker 1: to the district courts. Well, there are two for the

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Speaker 1: Central District, and one is named Frempong is her last name,

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Speaker 1: and she brings ethnic and gender diversity. Second is her

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Speaker 1: nan Vera, and he brings ethnic diversity. Both of them

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Speaker 1: are presently judges I think in the state system California.

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Speaker 1: And then Jennifer Thurston, who's a magistrate judge in the

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Speaker 1: Eastern District of California, which is in Sacramento, though I

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Speaker 1: think she sits in Bakersfield. So they're all very experienced judges.

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Speaker 1: They will be I think ready to assume the federal

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Speaker 1: District Court responsibilities. And of course the Central District is

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Speaker 1: very much underwater these days. Um it has still six

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Speaker 1: vacancies on a twenty eight judge court, and it has

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Speaker 1: a huge docket. The judges decide twice as many civil

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Speaker 1: cases annually as judges in the rest of the country,

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Speaker 1: and Eastern is even worse. For decades they have been underwater,

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Speaker 1: and so it's great to have one more. But of

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Speaker 1: course the judges ships bills, based on the recommendations of

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Speaker 1: the Judicial Conference to Congress called for fifteen new district

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Speaker 1: judges in the Central District, and think four or five

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Speaker 1: in the Eastern District and see if that passes. There

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Speaker 1: was a hearing in February, but it's not clear that

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Speaker 1: Republicans will sign on, of course, because that would allow

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Speaker 1: the President to make more appointments. Of course, if you

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Speaker 1: don't fill all the vacancies, you may never get to

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Speaker 1: the new judge ships, should Congress choose to create them.

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Speaker 1: The Eastern District of California's chief judge, Kimberly Muller, in

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Speaker 1: July called the vacancy's crushing and I have to ask you,

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Speaker 1: why is California? Why are they in this crisis situation

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Speaker 1: all the time. Is it the fault of the senators

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Speaker 1: from California not nominating enough or not working with the

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Speaker 1: prior administration. Well, to some extent it may be. I

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Speaker 1: think Vice President Harris, when she represented California and the Senate,

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Speaker 1: was opposed to a number of the nominees because she

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Speaker 1: felt they weren't appropriate to sit in California. And some

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Speaker 1: of it was political, but I think most of it

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Speaker 1: was she felt either weren't qualified or they were very

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Speaker 1: uh conservative. And I think that was true, though more

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Speaker 1: so at the appellate level. For example, the Ninth Circuit

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Speaker 1: nominees and appointees from Trump were quite conservative and have

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Speaker 1: shown that since they've been on the bench, and so

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Speaker 1: I think she opposed the number. It's a huge state

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Speaker 1: that many many district and circuit judges, and so it's

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Speaker 1: unless you stay on top of that situation, it's very

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Speaker 1: hard to catch up. And so that's what I think

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Speaker 1: we're seeing. But I'm optimistic from what you said, the

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Speaker 1: Senator Feinstein's at about three hundred people vetted and then

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Speaker 1: hopefully recommendations sitting in the White House that it will move.

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Speaker 1: And the Senate has been moving very quickly. Every two

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Speaker 1: weeks the Senate is in session, there's a hearing usually

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Speaker 1: for at least one appellate judge in four or five

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Speaker 1: district judges. In fact, there's one scheduled for tomorrow, so

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Speaker 1: there's no lads. From the Senate's perspective, the White House

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Speaker 1: is moving. Seems to be a well oiled nomination and

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Speaker 1: confirmation system that the president and the Senate majority haven't place.

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Speaker 1: And we talked before Biden was nominating faster than any

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Speaker 1: other president in modern days. Well, I think that's still true.

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Speaker 1: If you were to look at the time right before

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Speaker 1: the Senate recessed, I think you have to go back

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Speaker 1: to Nixon to find as many appointees and probably even

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Speaker 1: further to find as many nominees. There forty three nominees now,

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Speaker 1: but you have to keep in mind right now on

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Speaker 1: the floor there are two appellate nominees on the floor

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Speaker 1: who could have votes this week, and about ten more

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Speaker 1: district nominees who could and Culture has been filed in

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Speaker 1: a couple So once those aren't confirmed by the Senate,

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Speaker 1: then I think again, by that point, you know, in

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Speaker 1: September or whatever, after the rese probably will eclipse the

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Speaker 1: number that Nixon even had, and so it may be unprecedented.

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Speaker 1: The number is the Biden administration racing to get in

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Speaker 1: as many nominees as they can before the mid term elections. Yes,

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Speaker 1: I think they have been very straightforward about that, and

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Speaker 1: they've made every effort to have the Senator's recommendations come

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Speaker 1: in as soon as possible and to process them as

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Speaker 1: soon as possible, and then to move them to the

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Speaker 1: Senate as quickly as possible. At some point, the calendar

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Speaker 1: dictates some issues. For example, when you get into the

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Speaker 1: holidays Thanksgiving and Christmas and New Year's the Senate will

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Speaker 1: be out and and it'll be hard to confirm a

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Speaker 1: lot of people. But when they come back in January,

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Speaker 1: they'll start again, and so I think that we could

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Speaker 1: see huge numbers even by the time Senate recesses in December.

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Speaker 1: So maybe as many as ten or fifteen appellate and

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Speaker 1: probably fifty or so district judges appointed, which probably would

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Speaker 1: be close to records for a first year or any president.

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Speaker 1: So now let's switch to a court that Biden wishes

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Speaker 1: he could nominate someone to the Supreme Court. Just as

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Speaker 1: Amy Coney Barrett appeared at an event to mark the

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Speaker 1: thirtieth anniversary of the University of Louisville's McConnell Center, she

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Speaker 1: told the crowd, quote, my goal today is to convince

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Speaker 1: you that this court is not comprised of a bunch

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Speaker 1: of partisan hacks. What's your reaction to her speech. Well,

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Speaker 1: that's interesting coming from her, and it seems to me

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Speaker 1: what you should do is watch what they're doing, not

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Speaker 1: what they're saying. And of course there's huge firestorm over

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Speaker 1: what happened with SP eight in Texas, and the Court

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Speaker 1: used at shadow docket to allow that draconian measure to

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Speaker 1: go into effect. So that makes the populists somewhat nervous

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Speaker 1: about what's going on at Supreme Court. It's not terribly transparent.

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Speaker 1: You don't have hearings, uh, you don't have any oral argument,

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Speaker 1: you don't have much by way of briefing in that

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Speaker 1: kind of situation. And so when justices appear at political events,

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Speaker 1: which is fine, they sometimes say things that may seem political.

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Speaker 1: And of course we do value the respect that the

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Speaker 1: people have for the Court. So it should not be

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Speaker 1: viewed as a part of an institution. And Justice Prior

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Speaker 1: has just written a book on that, and he's been

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Speaker 1: speaking out about that, and so it's important. In chief

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Speaker 1: Justice Roberts is a strong institutionalist and is always concerned

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Speaker 1: about the credibility of the Supreme Court. Thanks Carl that,

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Speaker 1: Professor Carl Tobias of the University of Richmond Law School.

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Speaker 1: After a year long legal battle between Apple and Epic Games,

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Speaker 1: a llich has ordered Apple to make a major change

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Speaker 1: the way it generates money from its app store, a

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Speaker 1: ruling that chips away at the iPhone maker's grip on

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Speaker 1: the one billion dollar market for mobile games. So why

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Speaker 1: is it that it's Epic that's appealing the judge's decision.

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Speaker 1: Joining me is Mark Rifkin, a partner Wolf Haldenstein who

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Speaker 1: represents consumers in an antitrust lawsuit against Apple. So who

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Speaker 1: won this case? Did anyone win this case? I think

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Speaker 1: it's a tie. I think there are parts of the

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Speaker 1: court's decisions that each side can claim as victory. Well,

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Speaker 1: certainly Epic can claim an enormous victory in the court's

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Speaker 1: decision to enjoin the anti steering provisions for I A.

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Speaker 1: I think that's an important part of Apple's business model,

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Speaker 1: and as it stands now, Apple cannot continue that particular practice,

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Speaker 1: which is a major victory or EPIC. So I think

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Speaker 1: that's a big deal. I think it's also a big

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Speaker 1: deal at the court found that Apple's commission was anti

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Speaker 1: competitive and essentially unjustified. Some say that that could wipe

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Speaker 1: billions from Apple's profits. I think that opening I a

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Speaker 1: P so that developers can sell directly two consumers, at

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Speaker 1: least for in app purchases, who risks a substantial revenue

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Speaker 1: stream for Apple. I won't predict what that will be,

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Speaker 1: but it certainly is a substantial revenustry. Whether Apple can

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Speaker 1: retain those developers after the court's order becomes effective. It's

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Speaker 1: a huge question, and the effect on Apple's revenue is

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Speaker 1: something that we're all going to watch over the next

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Speaker 1: you know, several months in year or so. For the

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Speaker 1: average person, how will it work in the future. You'll

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Speaker 1: go into the app store and you'll get a choice

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Speaker 1: whether to pay through Apple or whether to pay through

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Speaker 1: the developer. I think that's exactly right. I think. And

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Speaker 1: it's not on the app Store that this happens. It's

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Speaker 1: it's within the app. I A p is an in

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Speaker 1: app purchase. So let's talk about for example, let's talk

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Speaker 1: you have the option to buy a game token or

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Speaker 1: a game piece, or extra lives or whatever it may be.

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Speaker 1: That's a purchase that you make while playing the app.

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Speaker 1: It's an in app purchase, and you can do that

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Speaker 1: from your phone or from your iOS device, if you're

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Speaker 1: playing on a tablet, whatever it is. But that payment, now,

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Speaker 1: under the court's decision, does not need to be processed

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Speaker 1: through Apple. Apple won't get to collect the revenue and

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Speaker 1: won't get to impose its commission on that feat. You'll

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Speaker 1: be able to pay the developer directly from the app

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Speaker 1: or that in app purchase. So that's a that's a

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Speaker 1: significant and change to the way Apple is processing payments

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Speaker 1: on in app purchases. But there are other in app

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Speaker 1: purchases as well that are just as support. For example,

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Speaker 1: if you have the New York Times app on your

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Speaker 1: phone and you subscribe to the New York Times, you

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Speaker 1: can now do it directly through the New York Times

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Speaker 1: when the judge's order is implemented from your phone, without

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Speaker 1: having to leave your phone. Go to a web browser,

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Speaker 1: log into your New York Times account and subscribe. That way,

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Speaker 1: you can do it directly from the app. So those

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Speaker 1: are those are big changes, no doubt about. So let's

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Speaker 1: talk a little bit about her ruling. The key was

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Speaker 1: defining the market in question, and basically she disagreed with

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Speaker 1: both sides about the definition of the market. So why

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Speaker 1: is the key defining the market and how did she

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Speaker 1: define it? Well? In in any antitrust case, the first

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Speaker 1: fundamental question you have to ask is what's the relevant

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Speaker 1: market in which the allegement offomists is supposed to be operating.

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Speaker 1: And here she picked a market of international portable game applications.

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Speaker 1: It was both broader than and narrower were than the

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Speaker 1: markets that each side was proposed, and what it meant

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Speaker 1: was her analysis of Apple's ability to control the market

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Speaker 1: and the effects on competition in the market that she

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Speaker 1: defined is driven by the definition of the market, and

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Speaker 1: ultimately she concluded that Apple did not have monopoly power

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Speaker 1: and did not exert monopoly power in the particular market

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Speaker 1: that you point. So the judge wrote, success is not illegal.

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Speaker 1: She cautioned that it's market share of more than wasn't

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Speaker 1: enough to sustain a monopoly case, But did she indicate

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Speaker 1: that in the future it could be a monopoly if

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Speaker 1: it gets higher. Well, she made a point to say

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Speaker 1: that there's no magic number, that there's a rain of

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Speaker 1: numbers in which some cases have said it's enough, in

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Speaker 1: some cases have said it's not. She balanced all of

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Speaker 1: the factors in the record before her, and she concluded

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Speaker 1: on the basis of all those facts that Apple did

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Speaker 1: not possess sufficient monopoly power in the relevant market that

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Speaker 1: she defined. But it doesn't change the overall legal framework

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Speaker 1: of what constitutes the requisite monopoly power. In other words,

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Speaker 1: it's a very case specific, fact intensive kind of inquiry,

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Speaker 1: and she acknowledged that in her decision. So now, Apple

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Speaker 1: had argued that that it has a wall garden model

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Speaker 1: and that it needed to control the entire app store

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Speaker 1: ecosystem to ensure privacy and protect consumers from being ripped off.

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Speaker 1: Did the judge agree with that? The judge found, on

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Speaker 1: the basis of the evidence presented in the epic trial,

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Speaker 1: that she could not conclude that there was anything anti

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Speaker 1: competitive about the wall of the garden. She recognized that

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Speaker 1: it was a differentiating factor for Apple, but she did

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Speaker 1: not have enough evidence in the record before her, or

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Speaker 1: at least this was her conclusion that she did not

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Speaker 1: have enough evidence in the record before her to make

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Speaker 1: a decision that that was any competitive I'm just wondering

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Speaker 1: if this decision will affect antitrust regulators bringing an antitrust

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Speaker 1: action against Apple. Well, no, because I think that where

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Speaker 1: in court found in Apple's favor, it was as much

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Speaker 1: because of the evidence that was presented in the trial

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Speaker 1: and what she felt was insufficient evidence. And I won't

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Speaker 1: comment on whether I agree or disagree with that, but

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Speaker 1: she said that she felt that there was insufficient evidence

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Speaker 1: on some of the issues that she needed to address.

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Speaker 1: But that doesn't mean that in another context, in another case,

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Speaker 1: that someone couldn't present more evidence or different evidence. And so,

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Speaker 1: for example, when we look at the case and we

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Speaker 1: look at what was offered by way of the security

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Speaker 1: justifications for locking the app store, we may choose to

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Speaker 1: present different evidence in our case than Epic presented in

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Speaker 1: its trial because the focus of our case will be different,

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Speaker 1: and on the basis of the record that we create

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Speaker 1: in our trial, the court may reach a different conclusion.

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Speaker 1: Explain that finding of this judge about commission. Well, in

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Speaker 1: a in a nutshell, what the judge said is Apple

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Speaker 1: decided to charge without any justification. We're doing so and

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Speaker 1: it has proven to be immensely profitable for Apple. And

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Speaker 1: despite the fact that there have been enormous changes in

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Speaker 1: the scope of the app store, Apple has by and

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Speaker 1: large adhered to that single commission, which the court found

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Speaker 1: to be unjustified on a competitive basis. Tell us about

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Speaker 1: your case. Remind us, so we represent the consumers who

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Speaker 1: have been locked into this ecosystem by Apple's virtual monopoly

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Speaker 1: over the App Store. If you buy an iPhone or

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Speaker 1: an iOS device and you want to put apps on

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Speaker 1: your device, you have nowhere to go, and nowhere in

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Speaker 1: the shop except the App Store. So in our case,

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Speaker 1: Apple doesn't have the market Apple has of the market,

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Speaker 1: and so clearly Apple has market power in the market

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Speaker 1: that we believe is relevant in our case. And so

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Speaker 1: that's that's one differentiation between our case and Epics Kings.

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Speaker 1: Your case went up to the Supreme Court, give us

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Speaker 1: a little bit of the history of it. So we

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Speaker 1: began litigating this case way back in two thousand seven

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Speaker 1: when the iPhone was first introduced, and we sued both

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Speaker 1: Apple and A T and T. And we were successful

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Speaker 1: all the way up to the point when the Supreme

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Speaker 1: Court decided A T and T versus concepts Ione and

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Speaker 1: reversed what was the law in the Ninth Circuit that

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Speaker 1: made arbitration agreements essentially unlawful. So at that point, the

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Speaker 1: court decided that we had to arbitrate our claims against

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Speaker 1: A T and T, and so we split the case

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Speaker 1: between Apple and A T and T. We only pursued Apple,

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Speaker 1: and and we've been litigating the case ever since then.

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Speaker 1: We now have two separate cases, one on behalf of

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Speaker 1: iPhone customers who complained about excessive voice and data charges,

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Speaker 1: and the other the one that went to the Supreme

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Speaker 1: Court on behalf of consumers iPhone consumers who complain about

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Speaker 1: excessive prices for apps in app purchases because of Apple's

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Speaker 1: monopolization of the App store, and they're super competitive commission.

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Speaker 1: So this case and the Court's finding that the thirty

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Speaker 1: commission was anti competitive is an enormous helped us. What

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Speaker 1: was the ruling when you went to the Supreme Court?

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Speaker 1: So the Supreme Court had to consider whether we were

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Speaker 1: direct purchasers from Apple for purposes of standing under the

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Speaker 1: what is called the Illinois Brick line of cases that

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Speaker 1: the Supreme Court decided in and they're the In our case,

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Speaker 1: the Supreme Court said, yes, app store purchases buy apps

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Speaker 1: and obviously make in app purchases directly from Apple because

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Speaker 1: that's the way Apple set the store up. So that

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Speaker 1: if if you own an iPhone or or an iOS

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Speaker 1: device and you want to put an app on the phone,

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Speaker 1: you want to make an in app purchase, at least

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Speaker 1: up to this point in time, you had to do

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Speaker 1: so directly from Apple fourteen years. I mean, is this

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Speaker 1: an exceptional case that it's been litigated for fourteen years

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Speaker 1: or is this par for the course with Apple? Well,

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Speaker 1: it's it's an exceptional case. It's not completely unheard of.

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Speaker 1: Apple certainly is known to litigate cases aggressively, you know,

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Speaker 1: to the end, and sometimes complex cases, particularly any trust

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Speaker 1: cases that involve multiple appeals, as our case has. You know,

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Speaker 1: fourteen years is long, but not not so long that

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Speaker 1: that it's unthinkable and and it's unfortunate because you know, people,

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Speaker 1: people do suffer injury while the case is proceeding. I

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Speaker 1: wish there were a faster and more efficient way to

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Speaker 1: litigate these cases, but but this is what it is.

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Speaker 1: What stage are you at now? So we're in the

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Speaker 1: class certification phase of the case, where we're asking court

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Speaker 1: to let us proceed on behalf of the class of

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Speaker 1: all Apple customers in the United States who pay for

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Speaker 1: apps or in app purchases after buying their iOS devices,

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Speaker 1: and that that will continue. Briefing will continue for another

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Speaker 1: few weeks and then hopefully report will your argument and

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Speaker 1: make a decision in the not to dis a future

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Speaker 1: and then you'll go to trial. Well, we'll probably have

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Speaker 1: to finish some discovery, although we've done an awful lot

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Speaker 1: of discovery because we were we were forced to complete

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Speaker 1: a lot of discovery on the same schedule as Epic.

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Speaker 1: There's probably some some additional discovery that we want to take,

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Speaker 1: but we're scheduled to go to trial in I believe

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Speaker 1: in September of two September of next year, before the

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Speaker 1: same judge, before the same ye Thanks so much, Mark.

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Speaker 1: That's Mark Rifkin, a partner Wolf hallden Stein. Remember you

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Speaker 1: can always get the latest legal news on our Bloomberg

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Speaker 1: Lawn podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: in a www dot Bloomberg dot com slash podcast slash Law.

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Speaker 1: I'm Joon Brunso and you're listening to Bloomberg