US: Latham & Watkins’ lawyer fights to keep app store win

A lawyer for Apple faced pointed questions on Wednesday from a Ninth Circuit panel considering whether to revive an antitrust lawsuit challenging the company’s model for selling apps.

Apple takes a 30 percent cut of all proceeds from iPhone applications sold through its App Store. Wolf Haldenstein Adler Freeman & Herz sued the company on behalf of a class of iPhone buyers in 2011 claiming that Apple holds monopoly power over the market for apps for the phones.

Daniel Wall and his colleagues at Latham & Watkins previously convinced a federal judge in Oakland that app buyers lacked standing to sue under the federal antitrust laws since the 30 percent fee is charged to app developers rather than to the purchasers.

That distinction seemed less convincing to the three-judge panel that heard an appeal of the dismissal on Wednesday.

“In a normal pass-through case the purchaser is not dealing with the alleged monopolist,” Circuit Judge William Fletcher said. He said that in the Apple case there is “zero ambiguity” that app buyers are paying Apple, the alleged monopolist, directly.

Latham’s Wall replied that Apple simply acts as an agent for developers through the App Store. Wall said that allowing developers to price their own apps was the “defining feature” of Apple’s model, and electronic-commerce companies commonly charge similar distribution fee.

Full content: The Recorder

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