WEBVTT - Biden's Rush to Appoint Judges

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<v Speaker 1>This is Bloomberg Law with June Brussel from Bloomberg Radio.

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<v Speaker 1>President Joe Biden's latest list of judicial nominations is all

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<v Speaker 1>about California, where the federal district courts have the most

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<v Speaker 1>emergencies and vacancies of any state, joinings Professor Carl Tobias

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<v Speaker 1>of the University of Richmond Law School, So how many

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<v Speaker 1>nominations did Biden make to California courts? Last Wednesday? The

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<v Speaker 1>President nominated three nominees for the ninth Circuit from California

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<v Speaker 1>and to Central District of California and one Eastern District

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<v Speaker 1>California nominees. But there are still in California many many openings.

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<v Speaker 1>There are emergencies another fifteen district ones that have no nominees.

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<v Speaker 1>So still the state is the word case scenario. But

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<v Speaker 1>it's great to have at least some nominees, and and

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<v Speaker 1>to have the three for the nine Circuit is important,

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<v Speaker 1>of course, because President Trump confirmed ten people for that

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<v Speaker 1>twenty nine judge court. Senator Diane Feinstein said in a

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<v Speaker 1>tweet after reviewing more than three hundred applications to the

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

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<v Speaker 1>If they've reviewed hundreds of applications, why haven't they proposed

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

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<v Speaker 1>I assume that she and Senator Padea sent much smaller

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<v Speaker 1>packages of recommendations to the White House, and my guess

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<v Speaker 1>is they are in the White House, but there are

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<v Speaker 1>many other vacancies around the country, and other senators I

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<v Speaker 1>think sent their recommendations earlier, and so there may be

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<v Speaker 1>a bit of a backlog there. But the White House

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<v Speaker 1>has been moving very quickly, and I assume we'll have

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<v Speaker 1>another package of californ on your nominees in the short term,

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<v Speaker 1>so hopefully that will work more efficiently and more quickly

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<v Speaker 1>going forward. So let's talk about the nominees for the

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

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

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<v Speaker 1>So is the attempt here to diversify the ninth Circuit. Well,

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<v Speaker 1>certainly those nominees are diverse in terms of ethnicity and

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<v Speaker 1>to some extent experience, though all three are sitting judges,

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<v Speaker 1>and of course Lucy Co is one of the finest

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<v Speaker 1>district judges in the nation, was nominated by President Obama,

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<v Speaker 1>but the Senate majority Republicans refused to give her a

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<v Speaker 1>confirmation vote, I think because they were afraid that then

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<v Speaker 1>she would make a record and be positioned for the

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<v Speaker 1>Supreme Court. And so the nominees are very experienced and

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<v Speaker 1>of course bring ethnic and gender diversity to the court.

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<v Speaker 1>Also diversity in experience. Judge Sanchez dealt with corrections and

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<v Speaker 1>criminal justice matters when he was in the Jerry Brown administration,

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<v Speaker 1>and Judge Thomas was a civil rights lawyer. Yes, and

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<v Speaker 1>she worked at the Department of Justice Civil Rights Division

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

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<v Speaker 1>as do almost all of the appellate and many district nominees.

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<v Speaker 1>So far from this president has President Biden nominated any

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<v Speaker 1>white male. A few, for example, down in the four

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<v Speaker 1>Circuit where I am Toby Heightens was a solicitor general

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<v Speaker 1>is a Solicitor General for Virginia, and Clerkford, Justice Ginsburg

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<v Speaker 1>and Eddie Becker on the third Sir Kit and he

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<v Speaker 1>is a white male. But there are very few others.

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<v Speaker 1>That's exactly right, And Lucy co would be the first

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<v Speaker 1>Korean American federal appellate judge. That's sort of hard to

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<v Speaker 1>believe that she's the first. Do you think she'll be

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<v Speaker 1>attacked by Republicans for some of her rulings? Well, she maybe,

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<v Speaker 1>but she has handled some incredibly difficult and complex cases

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<v Speaker 1>emanating from Silicon Valley, Uh, And I think uh done

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<v Speaker 1>a fine job in those cases, and so I don't

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

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<v Speaker 1>and so I'm certain that she will be confirmed. You

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<v Speaker 1>mentioned that former President Trump put ten nominees on the

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<v Speaker 1>ninth circuit. Is that circuit more Democratic appointees more Republican

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<v Speaker 1>appointees at this point? And will these new nominations change anything?

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<v Speaker 1>They won't change the composition in terms of appointing president.

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<v Speaker 1>They're sixteen appointed by Democratic presidents and thirteen appointed by

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<v Speaker 1>Republican presidents. And the three who are assuming senior status,

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<v Speaker 1>we're all appointed by Democratic presidents. But you're earning twenty

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<v Speaker 1>or thirty year because these nominees are much younger, of

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<v Speaker 1>course than the people assuming senior status or in their

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<v Speaker 1>sixties or seventies. So now tell us about the nominees

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<v Speaker 1>to the district courts. Well, there are two for the

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<v Speaker 1>Central District, and one is named Frempong is her last name,

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<v Speaker 1>and she brings ethnic and gender diversity. Second is her

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<v Speaker 1>nan Vera, and he brings ethnic diversity. Both of them

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<v Speaker 1>are presently judges I think in the state system California.

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<v Speaker 1>And then Jennifer Thurston, who's a magistrate judge in the

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<v Speaker 1>Eastern District of California, which is in Sacramento, though I

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

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<v Speaker 1>They will be I think ready to assume the federal

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<v Speaker 1>District Court responsibilities. And of course the Central District is

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<v Speaker 1>very much underwater these days. Um it has still six

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<v Speaker 1>vacancies on a twenty eight judge court, and it has

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<v Speaker 1>a huge docket. The judges decide twice as many civil

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<v Speaker 1>cases annually as judges in the rest of the country,

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<v Speaker 1>and Eastern is even worse. For decades they have been underwater,

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<v Speaker 1>and so it's great to have one more. But of

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<v Speaker 1>course the judges ships bills, based on the recommendations of

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<v Speaker 1>the Judicial Conference to Congress called for fifteen new district

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<v Speaker 1>judges in the Central District, and think four or five

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<v Speaker 1>in the Eastern District and see if that passes. There

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<v Speaker 1>was a hearing in February, but it's not clear that

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<v Speaker 1>Republicans will sign on, of course, because that would allow

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<v Speaker 1>the President to make more appointments. Of course, if you

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<v Speaker 1>don't fill all the vacancies, you may never get to

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<v Speaker 1>the new judge ships, should Congress choose to create them.

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<v Speaker 1>The Eastern District of California's chief judge, Kimberly Muller, in

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

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<v Speaker 1>why is California? Why are they in this crisis situation

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<v Speaker 1>all the time. Is it the fault of the senators

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<v Speaker 1>from California not nominating enough or not working with the

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<v Speaker 1>prior administration. Well, to some extent it may be. I

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<v Speaker 1>think Vice President Harris, when she represented California and the Senate,

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<v Speaker 1>was opposed to a number of the nominees because she

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<v Speaker 1>felt they weren't appropriate to sit in California. And some

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<v Speaker 1>of it was political, but I think most of it

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<v Speaker 1>was she felt either weren't qualified or they were very

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<v Speaker 1>uh conservative. And I think that was true, though more

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<v Speaker 1>so at the appellate level. For example, the Ninth Circuit

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<v Speaker 1>nominees and appointees from Trump were quite conservative and have

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<v Speaker 1>shown that since they've been on the bench, and so

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<v Speaker 1>I think she opposed the number. It's a huge state

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<v Speaker 1>that many many district and circuit judges, and so it's

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<v Speaker 1>unless you stay on top of that situation, it's very

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<v Speaker 1>hard to catch up. And so that's what I think

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

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<v Speaker 1>Senator Feinstein's at about three hundred people vetted and then

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<v Speaker 1>hopefully recommendations sitting in the White House that it will move.

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<v Speaker 1>And the Senate has been moving very quickly. Every two

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<v Speaker 1>weeks the Senate is in session, there's a hearing usually

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<v Speaker 1>for at least one appellate judge in four or five

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

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<v Speaker 1>there's no lads. From the Senate's perspective, the White House

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<v Speaker 1>is moving. Seems to be a well oiled nomination and

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<v Speaker 1>confirmation system that the president and the Senate majority haven't place.

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<v Speaker 1>And we talked before Biden was nominating faster than any

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

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<v Speaker 1>If you were to look at the time right before

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<v Speaker 1>the Senate recessed, I think you have to go back

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<v Speaker 1>to Nixon to find as many appointees and probably even

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<v Speaker 1>further to find as many nominees. There forty three nominees now,

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<v Speaker 1>but you have to keep in mind right now on

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<v Speaker 1>the floor there are two appellate nominees on the floor

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<v Speaker 1>who could have votes this week, and about ten more

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<v Speaker 1>district nominees who could and Culture has been filed in

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<v Speaker 1>a couple So once those aren't confirmed by the Senate,

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<v Speaker 1>then I think again, by that point, you know, in

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<v Speaker 1>September or whatever, after the rese probably will eclipse the

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<v Speaker 1>number that Nixon even had, and so it may be unprecedented.

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<v Speaker 1>The number is the Biden administration racing to get in

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<v Speaker 1>as many nominees as they can before the mid term elections. Yes,

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<v Speaker 1>I think they have been very straightforward about that, and

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<v Speaker 1>they've made every effort to have the Senator's recommendations come

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<v Speaker 1>in as soon as possible and to process them as

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<v Speaker 1>soon as possible, and then to move them to the

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<v Speaker 1>Senate as quickly as possible. At some point, the calendar

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<v Speaker 1>dictates some issues. For example, when you get into the

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<v Speaker 1>holidays Thanksgiving and Christmas and New Year's the Senate will

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<v Speaker 1>be out and and it'll be hard to confirm a

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<v Speaker 1>lot of people. But when they come back in January,

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<v Speaker 1>they'll start again, and so I think that we could

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<v Speaker 1>see huge numbers even by the time Senate recesses in December.

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<v Speaker 1>So maybe as many as ten or fifteen appellate and

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<v Speaker 1>probably fifty or so district judges appointed, which probably would

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<v Speaker 1>be close to records for a first year or any president.

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<v Speaker 1>So now let's switch to a court that Biden wishes

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<v Speaker 1>he could nominate someone to the Supreme Court. Just as

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<v Speaker 1>Amy Coney Barrett appeared at an event to mark the

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<v Speaker 1>thirtieth anniversary of the University of Louisville's McConnell Center, she

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<v Speaker 1>told the crowd, quote, my goal today is to convince

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<v Speaker 1>you that this court is not comprised of a bunch

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

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<v Speaker 1>that's interesting coming from her, and it seems to me

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<v Speaker 1>what you should do is watch what they're doing, not

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

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<v Speaker 1>what happened with SP eight in Texas, and the Court

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<v Speaker 1>used at shadow docket to allow that draconian measure to

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<v Speaker 1>go into effect. So that makes the populists somewhat nervous

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

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<v Speaker 1>You don't have hearings, uh, you don't have any oral argument,

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<v Speaker 1>you don't have much by way of briefing in that

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<v Speaker 1>kind of situation. And so when justices appear at political events,

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<v Speaker 1>which is fine, they sometimes say things that may seem political.

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<v Speaker 1>And of course we do value the respect that the

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<v Speaker 1>people have for the Court. So it should not be

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<v Speaker 1>viewed as a part of an institution. And Justice Prior

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<v Speaker 1>has just written a book on that, and he's been

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

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<v Speaker 1>Justice Roberts is a strong institutionalist and is always concerned

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<v Speaker 1>about the credibility of the Supreme Court. Thanks Carl that,

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<v Speaker 1>Professor Carl Tobias of the University of Richmond Law School.

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<v Speaker 1>After a year long legal battle between Apple and Epic Games,

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<v Speaker 1>a llich has ordered Apple to make a major change

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<v Speaker 1>the way it generates money from its app store, a

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<v Speaker 1>ruling that chips away at the iPhone maker's grip on

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<v Speaker 1>the one billion dollar market for mobile games. So why

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<v Speaker 1>is it that it's Epic that's appealing the judge's decision.

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<v Speaker 1>Joining me is Mark Rifkin, a partner Wolf Haldenstein who

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<v Speaker 1>represents consumers in an antitrust lawsuit against Apple. So who

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<v Speaker 1>won this case? Did anyone win this case? I think

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<v Speaker 1>it's a tie. I think there are parts of the

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

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<v Speaker 1>certainly Epic can claim an enormous victory in the court's

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<v Speaker 1>decision to enjoin the anti steering provisions for I A.

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<v Speaker 1>I think that's an important part of Apple's business model,

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<v Speaker 1>and as it stands now, Apple cannot continue that particular practice,

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<v Speaker 1>which is a major victory or EPIC. So I think

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<v Speaker 1>that's a big deal. I think it's also a big

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<v Speaker 1>deal at the court found that Apple's commission was anti

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<v Speaker 1>competitive and essentially unjustified. Some say that that could wipe

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<v Speaker 1>billions from Apple's profits. I think that opening I a

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<v Speaker 1>P so that developers can sell directly two consumers, at

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<v Speaker 1>least for in app purchases, who risks a substantial revenue

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

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<v Speaker 1>but it certainly is a substantial revenustry. Whether Apple can

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<v Speaker 1>retain those developers after the court's order becomes effective. It's

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<v Speaker 1>a huge question, and the effect on Apple's revenue is

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<v Speaker 1>something that we're all going to watch over the next

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<v Speaker 1>you know, several months in year or so. For the

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

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<v Speaker 1>go into the app store and you'll get a choice

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<v Speaker 1>whether to pay through Apple or whether to pay through

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<v Speaker 1>the developer. I think that's exactly right. I think. And

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<v Speaker 1>it's not on the app Store that this happens. It's

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<v Speaker 1>it's within the app. I A p is an in

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<v Speaker 1>app purchase. So let's talk about for example, let's talk

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<v Speaker 1>about a gaming app. If you're playing a game and

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<v Speaker 1>you have the option to buy a game token or

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<v Speaker 1>a game piece, or extra lives or whatever it may be.

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<v Speaker 1>That's a purchase that you make while playing the app.

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<v Speaker 1>It's an in app purchase, and you can do that

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<v Speaker 1>from your phone or from your iOS device, if you're

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<v Speaker 1>playing on a tablet, whatever it is. But that payment, now,

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<v Speaker 1>under the court's decision, does not need to be processed

0:15:42.360 --> 0:15:46.840
<v Speaker 1>through Apple. Apple won't get to collect the revenue and

0:15:46.920 --> 0:15:51.920
<v Speaker 1>won't get to impose its commission on that feat. You'll

0:15:51.960 --> 0:15:56.040
<v Speaker 1>be able to pay the developer directly from the app

0:15:56.240 --> 0:15:59.480
<v Speaker 1>or that in app purchase. So that's a that's a

0:15:59.520 --> 0:16:03.600
<v Speaker 1>significant and change to the way Apple is processing payments

0:16:03.600 --> 0:16:05.960
<v Speaker 1>on in app purchases. But there are other in app

0:16:06.000 --> 0:16:08.600
<v Speaker 1>purchases as well that are just as support. For example,

0:16:09.080 --> 0:16:11.520
<v Speaker 1>if you have the New York Times app on your

0:16:11.520 --> 0:16:14.520
<v Speaker 1>phone and you subscribe to the New York Times, you

0:16:14.520 --> 0:16:17.240
<v Speaker 1>can now do it directly through the New York Times

0:16:17.760 --> 0:16:21.360
<v Speaker 1>when the judge's order is implemented from your phone, without

0:16:21.400 --> 0:16:25.000
<v Speaker 1>having to leave your phone. Go to a web browser,

0:16:25.200 --> 0:16:29.760
<v Speaker 1>log into your New York Times account and subscribe. That way,

0:16:29.760 --> 0:16:31.920
<v Speaker 1>you can do it directly from the app. So those

0:16:31.920 --> 0:16:34.800
<v Speaker 1>are those are big changes, no doubt about. So let's

0:16:34.840 --> 0:16:37.800
<v Speaker 1>talk a little bit about her ruling. The key was

0:16:37.920 --> 0:16:42.560
<v Speaker 1>defining the market in question, and basically she disagreed with

0:16:42.640 --> 0:16:45.560
<v Speaker 1>both sides about the definition of the market. So why

0:16:45.680 --> 0:16:48.240
<v Speaker 1>is the key defining the market and how did she

0:16:48.280 --> 0:16:53.560
<v Speaker 1>define it? Well? In in any antitrust case, the first

0:16:53.600 --> 0:16:56.240
<v Speaker 1>fundamental question you have to ask is what's the relevant

0:16:56.280 --> 0:16:59.600
<v Speaker 1>market in which the allegement offomists is supposed to be operating.

0:16:59.640 --> 0:17:06.960
<v Speaker 1>And here she picked a market of international portable game applications.

0:17:07.160 --> 0:17:10.879
<v Speaker 1>It was both broader than and narrower were than the

0:17:10.960 --> 0:17:15.960
<v Speaker 1>markets that each side was proposed, and what it meant

0:17:16.080 --> 0:17:20.359
<v Speaker 1>was her analysis of Apple's ability to control the market

0:17:20.440 --> 0:17:23.760
<v Speaker 1>and the effects on competition in the market that she

0:17:23.960 --> 0:17:28.240
<v Speaker 1>defined is driven by the definition of the market, and

0:17:28.359 --> 0:17:32.280
<v Speaker 1>ultimately she concluded that Apple did not have monopoly power

0:17:32.800 --> 0:17:36.800
<v Speaker 1>and did not exert monopoly power in the particular market

0:17:36.880 --> 0:17:41.679
<v Speaker 1>that you point. So the judge wrote, success is not illegal.

0:17:42.200 --> 0:17:45.880
<v Speaker 1>She cautioned that it's market share of more than wasn't

0:17:45.960 --> 0:17:49.399
<v Speaker 1>enough to sustain a monopoly case, But did she indicate

0:17:49.480 --> 0:17:52.919
<v Speaker 1>that in the future it could be a monopoly if

0:17:52.920 --> 0:17:56.840
<v Speaker 1>it gets higher. Well, she made a point to say

0:17:56.880 --> 0:18:00.720
<v Speaker 1>that there's no magic number, that there's a rain of

0:18:00.840 --> 0:18:03.280
<v Speaker 1>numbers in which some cases have said it's enough, in

0:18:03.280 --> 0:18:06.280
<v Speaker 1>some cases have said it's not. She balanced all of

0:18:06.320 --> 0:18:10.480
<v Speaker 1>the factors in the record before her, and she concluded

0:18:10.760 --> 0:18:14.920
<v Speaker 1>on the basis of all those facts that Apple did

0:18:14.920 --> 0:18:20.320
<v Speaker 1>not possess sufficient monopoly power in the relevant market that

0:18:20.359 --> 0:18:24.480
<v Speaker 1>she defined. But it doesn't change the overall legal framework

0:18:24.840 --> 0:18:29.639
<v Speaker 1>of what constitutes the requisite monopoly power. In other words,

0:18:30.200 --> 0:18:33.800
<v Speaker 1>it's a very case specific, fact intensive kind of inquiry,

0:18:34.000 --> 0:18:37.720
<v Speaker 1>and she acknowledged that in her decision. So now, Apple

0:18:38.160 --> 0:18:41.159
<v Speaker 1>had argued that that it has a wall garden model

0:18:41.680 --> 0:18:44.440
<v Speaker 1>and that it needed to control the entire app store

0:18:44.520 --> 0:18:49.160
<v Speaker 1>ecosystem to ensure privacy and protect consumers from being ripped off.

0:18:49.560 --> 0:18:55.040
<v Speaker 1>Did the judge agree with that? The judge found, on

0:18:55.080 --> 0:18:59.040
<v Speaker 1>the basis of the evidence presented in the epic trial,

0:18:59.320 --> 0:19:03.840
<v Speaker 1>that she could not conclude that there was anything anti

0:19:03.840 --> 0:19:07.879
<v Speaker 1>competitive about the wall of the garden. She recognized that

0:19:07.960 --> 0:19:13.920
<v Speaker 1>it was a differentiating factor for Apple, but she did

0:19:13.920 --> 0:19:17.240
<v Speaker 1>not have enough evidence in the record before her, or

0:19:17.280 --> 0:19:20.080
<v Speaker 1>at least this was her conclusion that she did not

0:19:20.200 --> 0:19:23.040
<v Speaker 1>have enough evidence in the record before her to make

0:19:23.080 --> 0:19:27.080
<v Speaker 1>a decision that that was any competitive I'm just wondering

0:19:27.119 --> 0:19:33.160
<v Speaker 1>if this decision will affect antitrust regulators bringing an antitrust

0:19:33.200 --> 0:19:38.320
<v Speaker 1>action against Apple. Well, no, because I think that where

0:19:38.440 --> 0:19:42.080
<v Speaker 1>in court found in Apple's favor, it was as much

0:19:42.160 --> 0:19:45.280
<v Speaker 1>because of the evidence that was presented in the trial

0:19:45.640 --> 0:19:49.560
<v Speaker 1>and what she felt was insufficient evidence. And I won't

0:19:49.560 --> 0:19:51.920
<v Speaker 1>comment on whether I agree or disagree with that, but

0:19:52.320 --> 0:19:54.960
<v Speaker 1>she said that she felt that there was insufficient evidence

0:19:55.040 --> 0:19:58.200
<v Speaker 1>on some of the issues that she needed to address.

0:19:58.240 --> 0:20:01.560
<v Speaker 1>But that doesn't mean that in another context, in another case,

0:20:02.600 --> 0:20:07.359
<v Speaker 1>that someone couldn't present more evidence or different evidence. And so,

0:20:07.440 --> 0:20:10.240
<v Speaker 1>for example, when we look at the case and we

0:20:10.359 --> 0:20:14.280
<v Speaker 1>look at what was offered by way of the security

0:20:14.440 --> 0:20:19.760
<v Speaker 1>justifications for locking the app store, we may choose to

0:20:19.800 --> 0:20:23.720
<v Speaker 1>present different evidence in our case than Epic presented in

0:20:23.720 --> 0:20:27.320
<v Speaker 1>its trial because the focus of our case will be different,

0:20:28.280 --> 0:20:32.119
<v Speaker 1>and on the basis of the record that we create

0:20:32.720 --> 0:20:36.800
<v Speaker 1>in our trial, the court may reach a different conclusion.

0:20:38.160 --> 0:20:43.679
<v Speaker 1>Explain that finding of this judge about commission. Well, in

0:20:43.680 --> 0:20:46.000
<v Speaker 1>a in a nutshell, what the judge said is Apple

0:20:46.119 --> 0:20:51.000
<v Speaker 1>decided to charge without any justification. We're doing so and

0:20:51.160 --> 0:20:55.919
<v Speaker 1>it has proven to be immensely profitable for Apple. And

0:20:55.960 --> 0:20:58.960
<v Speaker 1>despite the fact that there have been enormous changes in

0:20:59.000 --> 0:21:04.280
<v Speaker 1>the scope of the app store, Apple has by and

0:21:04.359 --> 0:21:09.560
<v Speaker 1>large adhered to that single commission, which the court found

0:21:09.600 --> 0:21:14.439
<v Speaker 1>to be unjustified on a competitive basis. Tell us about

0:21:14.440 --> 0:21:20.280
<v Speaker 1>your case. Remind us, so we represent the consumers who

0:21:20.680 --> 0:21:28.480
<v Speaker 1>have been locked into this ecosystem by Apple's virtual monopoly

0:21:28.880 --> 0:21:32.359
<v Speaker 1>over the App Store. If you buy an iPhone or

0:21:32.400 --> 0:21:35.480
<v Speaker 1>an iOS device and you want to put apps on

0:21:35.680 --> 0:21:39.200
<v Speaker 1>your device, you have nowhere to go, and nowhere in

0:21:39.200 --> 0:21:42.920
<v Speaker 1>the shop except the App Store. So in our case,

0:21:43.160 --> 0:21:48.000
<v Speaker 1>Apple doesn't have the market Apple has of the market,

0:21:48.480 --> 0:21:52.639
<v Speaker 1>and so clearly Apple has market power in the market

0:21:53.160 --> 0:21:56.960
<v Speaker 1>that we believe is relevant in our case. And so

0:21:57.119 --> 0:22:01.160
<v Speaker 1>that's that's one differentiation between our case and Epics Kings.

0:22:02.760 --> 0:22:04.560
<v Speaker 1>Your case went up to the Supreme Court, give us

0:22:04.560 --> 0:22:07.600
<v Speaker 1>a little bit of the history of it. So we

0:22:07.720 --> 0:22:10.639
<v Speaker 1>began litigating this case way back in two thousand seven

0:22:11.040 --> 0:22:13.880
<v Speaker 1>when the iPhone was first introduced, and we sued both

0:22:13.920 --> 0:22:18.840
<v Speaker 1>Apple and A T and T. And we were successful

0:22:18.920 --> 0:22:20.960
<v Speaker 1>all the way up to the point when the Supreme

0:22:20.960 --> 0:22:25.359
<v Speaker 1>Court decided A T and T versus concepts Ione and

0:22:25.520 --> 0:22:29.640
<v Speaker 1>reversed what was the law in the Ninth Circuit that

0:22:29.800 --> 0:22:34.720
<v Speaker 1>made arbitration agreements essentially unlawful. So at that point, the

0:22:34.800 --> 0:22:38.679
<v Speaker 1>court decided that we had to arbitrate our claims against

0:22:38.760 --> 0:22:41.040
<v Speaker 1>A T and T, and so we split the case

0:22:41.119 --> 0:22:45.800
<v Speaker 1>between Apple and A T and T. We only pursued Apple,

0:22:46.640 --> 0:22:49.520
<v Speaker 1>and and we've been litigating the case ever since then.

0:22:50.040 --> 0:22:53.919
<v Speaker 1>We now have two separate cases, one on behalf of

0:22:54.520 --> 0:22:59.040
<v Speaker 1>iPhone customers who complained about excessive voice and data charges,

0:22:59.160 --> 0:23:01.320
<v Speaker 1>and the other the one that went to the Supreme

0:23:01.320 --> 0:23:06.440
<v Speaker 1>Court on behalf of consumers iPhone consumers who complain about

0:23:07.480 --> 0:23:12.480
<v Speaker 1>excessive prices for apps in app purchases because of Apple's

0:23:12.680 --> 0:23:18.040
<v Speaker 1>monopolization of the App store, and they're super competitive commission.

0:23:18.160 --> 0:23:20.720
<v Speaker 1>So this case and the Court's finding that the thirty

0:23:21.119 --> 0:23:27.040
<v Speaker 1>commission was anti competitive is an enormous helped us. What

0:23:27.200 --> 0:23:29.000
<v Speaker 1>was the ruling when you went to the Supreme Court?

0:23:30.119 --> 0:23:33.880
<v Speaker 1>So the Supreme Court had to consider whether we were

0:23:33.920 --> 0:23:37.840
<v Speaker 1>direct purchasers from Apple for purposes of standing under the

0:23:38.560 --> 0:23:42.159
<v Speaker 1>what is called the Illinois Brick line of cases that

0:23:42.240 --> 0:23:47.040
<v Speaker 1>the Supreme Court decided in and they're the In our case,

0:23:47.080 --> 0:23:51.280
<v Speaker 1>the Supreme Court said, yes, app store purchases buy apps

0:23:51.400 --> 0:23:56.080
<v Speaker 1>and obviously make in app purchases directly from Apple because

0:23:56.080 --> 0:23:57.879
<v Speaker 1>that's the way Apple set the store up. So that

0:23:58.040 --> 0:24:00.600
<v Speaker 1>if if you own an iPhone or or an iOS

0:24:00.640 --> 0:24:03.240
<v Speaker 1>device and you want to put an app on the phone,

0:24:03.440 --> 0:24:06.440
<v Speaker 1>you want to make an in app purchase, at least

0:24:06.520 --> 0:24:08.760
<v Speaker 1>up to this point in time, you had to do

0:24:08.840 --> 0:24:13.720
<v Speaker 1>so directly from Apple fourteen years. I mean, is this

0:24:13.800 --> 0:24:17.080
<v Speaker 1>an exceptional case that it's been litigated for fourteen years

0:24:17.200 --> 0:24:20.320
<v Speaker 1>or is this par for the course with Apple? Well,

0:24:20.520 --> 0:24:24.879
<v Speaker 1>it's it's an exceptional case. It's not completely unheard of.

0:24:25.840 --> 0:24:29.760
<v Speaker 1>Apple certainly is known to litigate cases aggressively, you know,

0:24:30.280 --> 0:24:34.680
<v Speaker 1>to the end, and sometimes complex cases, particularly any trust

0:24:34.720 --> 0:24:39.679
<v Speaker 1>cases that involve multiple appeals, as our case has. You know,

0:24:40.240 --> 0:24:44.240
<v Speaker 1>fourteen years is long, but not not so long that

0:24:44.840 --> 0:24:49.919
<v Speaker 1>that it's unthinkable and and it's unfortunate because you know, people,

0:24:50.240 --> 0:24:54.560
<v Speaker 1>people do suffer injury while the case is proceeding. I

0:24:54.600 --> 0:24:56.960
<v Speaker 1>wish there were a faster and more efficient way to

0:24:57.280 --> 0:25:01.240
<v Speaker 1>litigate these cases, but but this is what it is.

0:25:01.800 --> 0:25:05.200
<v Speaker 1>What stage are you at now? So we're in the

0:25:05.240 --> 0:25:08.280
<v Speaker 1>class certification phase of the case, where we're asking court

0:25:08.359 --> 0:25:12.080
<v Speaker 1>to let us proceed on behalf of the class of

0:25:12.560 --> 0:25:16.840
<v Speaker 1>all Apple customers in the United States who pay for

0:25:17.400 --> 0:25:22.680
<v Speaker 1>apps or in app purchases after buying their iOS devices,

0:25:22.880 --> 0:25:27.119
<v Speaker 1>and that that will continue. Briefing will continue for another

0:25:27.200 --> 0:25:30.560
<v Speaker 1>few weeks and then hopefully report will your argument and

0:25:30.600 --> 0:25:32.479
<v Speaker 1>make a decision in the not to dis a future

0:25:32.840 --> 0:25:36.359
<v Speaker 1>and then you'll go to trial. Well, we'll probably have

0:25:36.480 --> 0:25:39.280
<v Speaker 1>to finish some discovery, although we've done an awful lot

0:25:39.320 --> 0:25:43.440
<v Speaker 1>of discovery because we were we were forced to complete

0:25:43.440 --> 0:25:45.480
<v Speaker 1>a lot of discovery on the same schedule as Epic.

0:25:46.240 --> 0:25:49.359
<v Speaker 1>There's probably some some additional discovery that we want to take,

0:25:49.440 --> 0:25:53.040
<v Speaker 1>but we're scheduled to go to trial in I believe

0:25:53.080 --> 0:25:57.720
<v Speaker 1>in September of two September of next year, before the

0:25:57.760 --> 0:26:02.160
<v Speaker 1>same judge, before the same ye Thanks so much, Mark.

0:26:02.680 --> 0:26:06.240
<v Speaker 1>That's Mark Rifkin, a partner Wolf hallden Stein. Remember you

0:26:06.280 --> 0:26:08.360
<v Speaker 1>can always get the latest legal news on our Bloomberg

0:26:08.400 --> 0:26:11.720
<v Speaker 1>Lawn podcast. You can find them on Apple Podcasts, Spotify,

0:26:11.880 --> 0:26:16.600
<v Speaker 1>in a www dot Bloomberg dot com slash podcast slash Law.

0:26:17.240 --> 0:26:19.400
<v Speaker 1>I'm Joon Brunso and you're listening to Bloomberg