Late last week, Apple moved to dismiss a suit brought by French app developers and a French association representing app developers, contending that their claims are barred by the Foreign Trade Antitrust Improvements Act (FTAIA), among other defenses. Apple said that suit unfairly seeks to dovetail on claims resolved with domestic app developers but is not sufficiently different to give rise to a new, timely action subject to the jurisdiction of the California federal court where the French plaintiffs filed suit.
As previously reported, the complaint took issue with Apple App Store practices and policies, and chiefly, the up to 30% commission Apple extracted from the plaintiffs and other French app developers on both app sales and in-app purchases for more than a decade. In addition, the class action cited the minimum price for apps, a $99 annual fee assessed to app developers, Apple’s interference between developers and end-users, and its App Tracking Transparency (ATT) feature, which allows users the chance to opt out of certain third-party tracking by developers, as problematic.
The suit stated claims under federal and California antitrust law for monopoly abuses and unfair business practices and is before Judge Yvonne Gonzalez Rogers, the same judge who oversaw the domestic app developers’ collective action (Cameron v. Apple), which settled for $100 million in 2021.
Last week’s motion dedicated page space to the Cameron v. Apple litigation, spearheaded by the same firm representing the plaintiffs here, Hagens Berman Sobol Shapiro LLP. Apple commented that despite the threshold obstacles to and meritlessness of the French plaintiffs’ claims, they, “indifferent to the waste of party and judicial resources, demand the opportunity to relitigate these issues.”
Apple said that at bottom, the FTAIA bars “transactions between French developers and foreign consumers, made on foreign App Store storefronts, in foreign currency, and through a foreign (non-party) Apple entity are foreign non-import commerce.” Without any FTAIA exception, the foreign plaintiffs may not invoke US antitrust law to remedy their alleged grievances, the dismissal bid said.
In addition, Apple argued that the plaintiffs have no standing to contest ATT, “a pro-consumer and privacy-enhancing feature that does not (and cannot) give rise to any injury in fact to plaintiffs.” The filing further alleged that plaintiff le GESTE, self-described as an association of “online publishers,” lacks any injury to support constitutional or statutory standing to sue on its own behalf and thus has no associational standing. “Among other problems, this litigation is not germane to le GESTE’s purpose and neither federal nor state antitrust or unfair competition laws provide a right of action to an uninjured association,” the filing said.
Other defenses included timeliness issues and failure to state a claim. A dismissal hearing is scheduled for mid-March in Oakland, Calif. Apple is represented by Gibson Dunn & Crutcher LLP.
