The Court issued its 5–4 decision on May 13, 2019, affirming the Ninth Circuit's decision that consumers were "direct purchasers" of apps from Apple's store and had standing under
Illinois Brick to sue Apple for antitrust practices.
[14] Justice
Brett Kavanaugh, writing for the majority, stated that under the test of
Illinois Brick, consumers were directly affected by Apple's fee and were not secondary purchasers; that consumers could sue Apple directly since it was Apple's fee that affected the prices of the apps; and that while the structure for any damages that consumers may win in the continuing suit may be complicated, that is not a factor to determine the standing of the suit. The Court stated that Apple's interpretation of
Illinois Brick "did not make a lot of sense" and served only to "gerrymander Apple out of this and similar lawsuits."
[15] Disagreeing with Apple's reasoning, the Court explained that if adopted, it would "directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases." Kavanaugh was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The decision remanded the class-action case to continue in lower courts but did not rule on any of the antitrust factors otherwise at the center of the case.
[15]
-- but the distribution/dissemination of (digital) content can be rather more scrupulously monitored and controlled.
