Third-Party App Store's Antitrust Complaint 'Hopelessly Time-Barred': Apple

SaurikIT’s December 2020 antitrust complaint against Apple for its alleged illegal monopoly of software distribution on its App Store is “hopelessly time-barred,” said Apple’s Monday appellee brief (docket 22-16527) in the 9th Circuit U.S. Court of Appeals.

Apple moved to dismiss the complaint under the applicable four-year statute of limitations. The district court recognized that plaintiff sat “on the sidelines since 2008,” the brief noted, “until springing a ‘copy cat’ suit in the long wake of other lawsuits challenging the same fundamental business model,” it said.

Apple’s response followed a January opening brief from SaurikIT, parent of the Cydia App Store, asserting the U.S. District Court for Northern California’s “change” theory applied in SaurikIT v. Apple (see 2301130035) is “tantamount to the idea that because a business has committed an antitrust violation before, it can continue to commit the same antitrust violation with impunity.”

SaurikIT, whose Cydia third-party app store is available only on jailbroken Apple iOS devices, was “obviously aware of [Apple’s challenged actions] back in 2008, 2009 and did nothing,” said Apple in the Monday brief: “Plaintiff’s only argument to salvage its claims is a continuing-violation theory.”

Following an amendment with allegations to support that theory, “the district court rightly recognized that Plaintiff had not identified, and could not identify, ‘a new and independent act that is not merely a reaffirmation of a previous act’ or that ‘inflict[ed] a new and accumulating injury on the plaintiff,’” it said.

SaurikIT failed to allege any actions by Apple that are new and independent from the business model it adopted 2008-2009, Apple said. Apple barred third-party app distributors like Cydia in 2008 and introduced an in-app purchase requirement in 2009, but SaurikIT “did not sue then or in the four years that followed,” Apple said. All its claims of “new acts” -- such as longstanding warranty requirements, provisions in developer agreements and concomitant enforcement policies -- are the “unabated inertial consequences” of Apple’s initial adoption of a centralized distribution platform, said the brief.

There are no allegations of conduct during the limitations period that inflicted new and accumulating injury on the Cydia store, which was barred from the iOS operating system in 2008, and “Apple has remained steadfast since,” said the brief. SaurikIT’s “steering” theory is that Apple’s continued imposition and enforcement of its pre-limitations policy “somehow causes Plaintiff new and accumulating injury,” Apple said. The theory is contrary to the court’s precedent in Hennegan v. Pacifico Creative Services that “irrevocable, immutable, permanent and final” policies don’t give rise to continuing violations, the brief said.

SaurikIT’s claims under state law and for injunctive relief under federal law are time-barred, too, “points Plaintiff ignores and thereby forfeits,” said the brief. The 9th Circuit Court should “affirm the judgment in its entirety.”