Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 1 of 13
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`
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`Steven C. Sunshine (admitted pro hac vice)
`Julia K. York (admitted pro hac vice)
`SKADDEN, ARPS, SLATE, MEAGHER &
`FLOM LLP
`1440 New York Avenue, N.W.
`Washington, DC 20005-2111
`Telephone: (202) 371-7000
`Facsimile: (202) 393-5760
`Email: steven.sunshine@skadden.com
`Email: julia.york@skadden.com
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`
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`Jack P. DiCanio (SBN 138752)
`SKADDEN, ARPS, SLATE, MEAGHER &
`FLOM LLP
`525 University Avenue
`Palo Alto, California 94301
`Telephone: (650) 470-4660
`Facsimile: (213) 621-5430
`Email: jack.dicanio@skadden.com
`
`Karen Hoffman Lent (admitted pro hac vice)
`Michael A. Lanci (admitted pro hac vice)
`SKADDEN, ARPS, SLATE, MEAGHER &
`FLOM LLP
`One Manhattan West
`New York, New York 10001
`Telephone: (212) 735-3000
`Facsimile: (212) 735-2000
`Email: karen.lent@skadden.com
`Email: michael.lanci@skadden.com
`
`Attorneys for Defendants Apple Inc. and Tim
`Cook
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`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND DIVISION
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`CASE NO. 4:21-cv-10001-HSG
`
`CALIFORNIA CRANE SCHOOL, INC.,
`on behalf of itself and all others similarly
`situated,
`
`Plaintiff,
`
`v.
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`GOOGLE LLC, ALPHABET INC., XXVI
`HOLDINGS INC., APPLE INC., TIM
`COOK, SUNDAR PICHAI, and ERIC
`SCHMIDT,
`
`Defendants.
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`
`
`APPLE DEFENDANTS’ SUPPLEMENTAL
`BRIEF IN SUPPORT OF THEIR MOTION
`TO DISMISS PLAINTIFF’S AMENDED
`COMPLAINT
`
`Date: September 29, 2022
`Time: 2:00 p.m.
`Place: Courtroom 2
`Judge: Hon. Haywood S. Gilliam, Jr.
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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`I.
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`II.
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 2 of 13
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .................................................................................................................. 1
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`ARGUMENT .......................................................................................................................... 1
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`A.
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`B.
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`C.
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`Plaintiff’s Section 1 and Section 2 Claims Fail Because Plaintiff Does Not
`Allege a Plausible Horizontal Conspiracy .................................................................. 1
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`Plaintiff’s Section 2 Claim Must Be Dismissed Because Plaintiff Does Not
`Plausibly Allege That Apple Possessed the Requisite Specific Intent ....................... 3
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`Plaintiff’s Section 1 and Section 2 Claims Must Be Dismissed Because
`Plaintiff Fails to Establish Antitrust Standing ............................................................ 4
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`III.
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`CONCLUSION ....................................................................................................................... 7
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 3 of 13
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`American Ad Management, Inc. v. General Telephone Co. of California,
`190 F.3d 1051 (9th Cir. 1999) ........................................................................................ 5, 6, 7
`
`A-World Trade, Inc. v. Apmex, Inc.,
`No. 21-55262, 2022 WL 1262010 (9th Cir. Apr. 28, 2022) ................................................... 2
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ............................................................................................................ 2, 3
`
`Bubar v. Ampco Foods, Inc.,
`752 F.2d 445 (9th Cir. 1985) .................................................................................................. 6
`
`City of Oakland v. Oakland Raiders,
`20 F.4th 441 (9th Cir. 2021) ................................................................................................... 7
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`City of Pittsburgh v. West Penn Power Co.,
`147 F.3d 256 (3d Cir. 1998).................................................................................................... 7
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`Eclectic Properties East, LLC v. Marcus & Millichap Co.,
`751 F.3d 990 (9th Cir. 2014) .................................................................................................. 2
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`Federal Trade Commission v. Qualcomm Inc.,
`969 F.3d 974 (9th Cir. 2020) .................................................................................................. 5
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`G.U.E. Tech, LLC v. Panasonic Avionics Corp.,
`No. SACV 15-00789-CJC(DFMx), 2015 WL 12696203 (C.D. Cal. Sept. 15, 2015) ............ 5
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`Innovation Marine Protein, LLC v. Pacific Seafood Group,
`No. 6:17-cv-00815-MC, 2018 WL 1461501 (D. Or. Mar. 23, 2018) ..................................... 7
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`Kendall v. Visa U.S.A., Inc.,
`518 F.3d 1042 (9th Cir. 2008) ............................................................................................ 2, 7
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`Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers,
`795 F.3d 1124 (9th Cir. 2015) ................................................................................................ 3
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`Prime Healthcare Services, Inc. v. Service Employees International Union,
`No. 11-cv-2652-GPC-RBB, 2013 WL 3873074 (S.D. Cal. July 25, 2013), aff’d, 642
`F. App’x 665 (9th Cir. 2016) .................................................................................................. 3
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`Ramsey v. National Ass’n of Music Merchants (In re Musical Instruments & Equipment
`Antitrust Litig.),
`798 F.3d 1186 (9th Cir. 2015) ................................................................................................ 2
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`-ii-
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 4 of 13
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`
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`Rutman Wine Co. v. E. & J. Gallo Winery,
`829 F.2d 729 (9th Cir. 1987) .................................................................................................. 4
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`Standfacts Credit Services, Inc. v. Experian Information Solutions, Inc.,
`405 F. Supp. 2d 1141 (C.D. Cal. 2005), aff’d in part, 294 F. App’x 271 (9th Cir.
`2008) ....................................................................................................................................... 4
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`Stanislaus Food Products Co. v. USS-POSCO Industries,
`No. CV F 09-0560 LJO SMS, 2011 WL 2678879 (E.D. Cal. July 7, 2011) .......................... 4
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`Ticketmaster LLC v. Designer Tickets & Tours, Inc.,
`No. CV 07-1092 ABC (JCx), 2008 WL 649804 (C.D. Cal. Mar. 10, 2008) .......................... 5
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`7
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`Toscano v. PGA Tour, Inc.,
`201 F. Supp. 2d 1106 (E.D. Cal. 2002)................................................................................... 6
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`Statutes
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`15 U.S.C. § 15b ................................................................................................................................... 8
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 5 of 13
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`I.
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`INTRODUCTION
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`Plaintiff’s Amended Complaint should be dismissed for all the reasons set forth in
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`Defendants’ Motion to Dismiss.1 See Defs.’ Mot. to Dismiss Pl.’s Amended Complaint (“Mot.” or
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`“Motion to Dismiss”), ECF No. 51; Defs.’ Reply in Support of Mot. to Dismiss Pl.’s Amended
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`Complaint (“Reply”), ECF No. 64. But with the scope of the Court’s review now focused on
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`Plaintiff’s allegations against Apple alone, certain infirmities in Plaintiff’s Amended Complaint
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`merit further emphasis. First, Plaintiff’s Amended Complaint asserts implausible conspiracy claims
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`based on no more than conclusory assertions that ignore obvious alternative explanations for the
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`Apple Defendants’ alleged conduct. Mot. 7–13. Second, Plaintiff advances a Sherman Act
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`conspiracy-to-monopolize claim without any plausible allegations addressing whether the Apple
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`Defendants specifically intended to empower Google—the only entity even alleged to participate in
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`any market potentially at issue—or itself with monopoly power. Mot. 15–16. Finally, Plaintiff fails
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`to establish antitrust standing, relying on an impermissibly tenuous and speculative theory of injury.
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`Mot. 16–21. Plaintiff’s Opposition, which largely pasted verbatim from Plaintiff’s Amended
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`Complaint and relies on decades-old, inapposite caselaw, see Pl.’s Opp’n To Defs.’ Mot. To Dismiss
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`Pl.’s Amended Complaint (“Opp’n”), ECF No. 63, did nothing to move the needle in Plaintiff’s favor
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`on any of these independent grounds for dismissal. The case should therefore be dismissed.
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`II.
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`ARGUMENT
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`A.
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`Plaintiff’s Section 1 and Section 2 Claims Fail Because Plaintiff Does Not Allege
`a Plausible Horizontal Conspiracy
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`Plaintiff’s Section 1 and Section 2 claims are both deficient because the Amended Complaint
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`does not plausibly allege evidentiary facts to support Plaintiff’s assertion that Apple and Google
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`entered into an unlawful horizontal agreement not to compete. Mot. 7–13; Reply 1–5. Whether the
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`alleged anticompetitive conduct at issue “stem[s] from independent decision or from an agreement,
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`tacit or express” is the “crucial question” in cases involving claims of a horizontal conspiracy under
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`1 Defendants Google LLC, Alphabet Inc., XXVI Holdings Inc., Sundar Pichai, and Eric Schmidt
`collectively are referred to herein as “Google,” or the “Google Defendants,” unless otherwise noted.
`Similarly, Defendants Apple Inc. (“Apple”) and Tim Cook are together referred to herein as the
`“Apple Defendants,” unless otherwise noted.
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`the Sherman Act. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 (2007) (alteration in original)
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`(citation omitted). To that end, a plaintiff raising such claims must plead “evidentiary facts,” Kendall
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`v. Visa U.S.A., Inc., 518 F.3d 1042, 1047–48 (9th Cir. 2008), that either directly or circumstantially
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`support the existence of an unlawful agreement, see Ramsey v. Nat’l Ass’n of Music Merchs. (In re
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`Musical Instruments & Equip. Antitrust Litig.), 798 F.3d 1186, 1193 (9th Cir. 2015).
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`As the Apple Defendants explained in their Motion to Dismiss, Plaintiff provides no such
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`facts here. Mot. 7–13; Reply 1–6. Instead, Plaintiff conjures a horizontal agreement not to compete
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`from scattered (and, in many cases, innocuous and public) comments made over the course of almost
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`two decades, see Am. Compl. ¶ 80, ECF No. 39, “secret meetings” between executives that were
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`held in plain view at public restaurants, see id. ¶¶ 13, 101, 103, 124–25, and a nonexclusive vertical
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`agreement between two companies with complementary, not competing, assets, see id. ¶¶ 89–93, 95.
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`These allegations are simply insufficient to state any sort of conspiracy claim.
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`Critically, in concocting the alleged horizontal agreement not to compete, Plaintiff ignores
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`numerous “obvious alternative explanation[s]” for Apple’s alleged conduct. Eclectic Props. E., LLC
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`v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (citation omitted). One such obvious
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`alternative explanation is that Apple integrated Google Search into its products for procompetitive
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`purposes—i.e., to offer better products in markets in which (unlike the “search business”) it actually
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`does participate. See A-World Trade, Inc. v. Apmex, Inc., No. 21-55262, 2022 WL 1262010, at *1–
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`2 (9th Cir. Apr. 28, 2022) (memorandum opinion) (explaining that an “obvious alternative
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`explanation” for the defendant’s alleged conduct was its participation in a related program for
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`“rational, economic reasons” such as “to obtain a higher volume of sales”). After all, as the Amended
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`Complaint concedes, Apple is a device manufacturer and web browser developer. See Am. Compl.
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`¶¶ 72, 95. It is therefore unsurprising that, as Plaintiff notes, Apple would integrate a supplier’s
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`search product—like Google Search—into its Safari web browser, its Siri voice assistant, and its
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`Spotlight system-wide desktop search feature, see id. ¶¶ 89, 92, to improve those products and
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`features. Another obvious alternative explanation is that Apple’s and Google’s executives met in
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`connection with that procompetitive vertical arrangement. See In re Musical Instruments, 798 F.3d
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`at 1196–97 (declining to infer an unlawful agreement from mere communications between
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`executives). And yet another is that Apple independently opted to focus its resources on improving
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`the user experience on its existing products and services instead of on developing a general internet
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`search engine. See Name.Space, Inc. v. Internet Corp. for Assigned Names & Nos., 795 F.3d 1124,
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`1130 (9th Cir. 2015) (explaining that an anticompetitive agreement cannot be inferred from facts that
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`“just as easily suggest rational, legal business behavior” (citation omitted)).
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`Plaintiff’s conclusory allegations of a horizontal agreement are precisely the sort of
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`allegations that Twombly and its progeny held are insufficient to support Sherman Act claims. 550
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`U.S. at 557 (explaining that “conclusory allegation[s] of agreement at some unidentified point do[]
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`not supply facts adequate to show illegality”).2 Plaintiff’s failure to plead any nonconclusory facts
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`supporting such an agreement requires dismissal of both its conspiracy-based Sherman Act claims.
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`See Prime Healthcare Servs., Inc. v. Serv. Emps. Int’l Union, No. 11-cv-2652-GPC-RBB, 2013 WL
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`3873074, at *16 (S.D. Cal. July 25, 2013) (dismissing Section 2 conspiracy-to-monopolize claim
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`where plaintiff “failed to plead the existence of a conspiracy for [a] Section 1 violation”), aff’d, 642
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`F. App’x 665 (9th Cir. 2016).3
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`B.
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`Plaintiff’s Section 2 Claim Must Be Dismissed Because Plaintiff Does Not
`Plausibly Allege That Apple Possessed the Requisite Specific Intent
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`Plaintiff’s Section 2 claim also must be dismissed because the Amended Complaint lacks
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`plausible factual allegations that the Apple Defendants had the requisite specific intent to empower
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`Google—the only entity in this action even alleged to participate in any market potentially at issue—
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`or itself with monopoly power. Mot. 15–16; Reply 7–8. To state a claim under Section 2 of the
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`2 Plaintiff may try—as it improperly attempted to do in its portion of the Joint Case Management
`Statement, ECF No. 83 at 2—to suggest that its allegations are rendered plausible because of
`statements Google made in its answer to the complaint in a separate action, United States v. Google,
`Case No. 1:20-cv-03010-APM (D.D.C). However, the Government does not allege a horizontal
`conspiracy in that case, nor is Apple a defendant. In particular, the Government’s allegations—
`which address alleged single-firm conduct by Google only—say nothing about a supposed
`conspiracy with Apple not to compete. Google’s answer in that case has no bearing whatsoever on
`this case against Apple.
`3 As the Apple Defendants explained, both of Plaintiff’s claims are also deficient as against Mr. Cook
`because the Amended Complaint does not plausibly allege his direct participation in, knowing
`approval of, or ratification of inherently wrongful conduct. Mot. 13–14 & n.6 (citing In re Cal. Bail
`Bond Antitrust Litig., 511 F. Supp. 3d 1031, 1050–51 (N.D. Cal. 2021); Murphy Tugboat Co. v.
`Shipowners & Merchs. Towboat Co., 467 F. Supp. 841, 851–54 (N.D. Cal. 1979), aff’d sub nom.
`Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir. 1981)).
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 8 of 13
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`Sherman Act, a plaintiff must plausibly allege that the defendants specifically intended “to empower
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`one of them with monopoly power,” Standfacts Credit Servs., Inc. v. Experian Info. Sols., Inc., 405
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`F. Supp. 2d 1141, 1152 (C.D. Cal. 2005), aff’d in part, 294 F. App’x 271 (9th Cir. 2008), “by
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`destroying or excluding competition within the relevant market.” Stanislaus Food Prods. Co. v.
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`USS-POSCO Indus., No. CV F 09-0560 LJO SMS, 2011 WL 2678879, at *12 (E.D. Cal. July 7,
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`2011).
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`The Amended Complaint wholly lacks allegations addressing any such intent by the Apple
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`Defendants. See Mot. 15–16; Reply 7–8. As far as the Apple Defendants’ conduct is concerned, all
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`the Amended Complaint alleges is that Apple agreed to set Google as the nonexclusive, out-of-the-
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`box general internet search engine on its Safari web browser and devices. Am. Compl. ¶¶ 89–93,
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`95. The Amended Complaint even concedes that Apple permits consumers to freely “change the
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`[default] search provider on their devices after the devices have been purchased.” See id. ¶ 117. This
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`nonexclusive conduct cannot give rise to an inference that Apple possessed the requisite intent either
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`for itself or for Google to monopolize any relevant market,4 as even exclusive distributorships (i.e.,
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`more restrictive arrangements than are at issue here) are “not, standing alone, a violation of antitrust
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`laws.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 735–36 (9th Cir. 1987) (holding
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`that an allegation of specific intent involving exclusive distributorship was “conclusory in the
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`absence of anticompetitive conduct from which . . . specific intent may be inferred”). Plaintiff’s
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`Section 2 claim accordingly must be dismissed.
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`C.
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`Plaintiff’s Section 1 and Section 2 Claims Must Be Dismissed Because Plaintiff
`Fails to Establish Antitrust Standing
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`Plaintiff’s Sherman Act claims must be dismissed as against the Apple Defendants because
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`Plaintiff lacks antitrust standing. Mot. 16–21; Reply 8–12. To determine whether a plaintiff has
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`antitrust standing, courts consider several factors, including (1) whether the plaintiff can establish
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`antitrust injury, (2) the directness of that injury, (3) the speculative measure of the harm the plaintiff
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`incurred, (4) the risk of duplicative recovery, and (5) the complexity in apportioning damages. Am.
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`4 Notably, as regards a relevant market, and as the Apple Defendants’ Motion to Dismiss explained,
`Plaintiff’s relevant market allegations are flawed and insufficient—yet another (independent) reason
`to dismiss Plaintiff’s Section 2 claim. Mot. 14–15; Reply 6–7.
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1054–55 (9th Cir. 1999). While Plaintiff’s
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`Amended Complaint is defective under each of the established antitrust standing factors, three factors
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`in particular illustrate why Plaintiff cannot claim to have standing to sue the Apple Defendants in
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`this action: (i) Plaintiff’s failure to plead antitrust injury, (ii) Plaintiff’s lack of direct injury, and (iii)
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`the speculative measure of the “harm” that Plaintiff attempts to trace back to the Apple Defendants.
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`First, Plaintiff does not plead facts sufficient to establish antitrust injury—a “necessary, but
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`not always sufficient,” predicate for antitrust standing. Id. at 1055 (quoting Cargill, Inc. v. Monfort
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`of Colo., Inc., 479 U.S. 104, 110 n.5 (1986)). Among other things, “[a]ntitrust injury requires the
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`plaintiff to have suffered its injury in the market where competition is being restrained.” Id. at 1057.
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`“Parties whose injuries . . . are experienced in another market do not suffer antitrust injury.” FTC v.
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`Qualcomm Inc., 969 F.3d 974, 992 (9th Cir. 2020) (quoting Am. Ad Mgmt., 190 F.3d at 1057). Here,
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`there is a mismatch between the market allegedly subject to any restraint and the market in which
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`Plaintiff supposedly experienced its injuries.
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`On the one hand, Plaintiff alleges an unlawful restraint in an inadequately defined “search
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`market” and that Defendants conspired to monopolize the “search business.” Am. Compl. ¶¶ 94,
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`136. But on the other hand, Plaintiff claims that it suffered injury by purchasing search advertising
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`placements from Google at inflated rates—i.e., in a still inadequately defined “search advertising
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`market.” See id. ¶¶ 48, 118, 134, 145, 147. In short, Plaintiff’s purported injury in the “search
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`advertising market” occurred outside the “search market” in which Plaintiff alleges the
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`anticompetitive restraint took place. Plaintiff offers the assertion that Apple “had been working on
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`its own search engine,” id. ¶ 127, but that says nothing at all about any efforts or any intention by
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`Apple to develop search advertising capabilities. See G.U.E. Tech, LLC v. Panasonic Avionics
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`Corp., No. SACV 15-00789-CJC(DFMx), 2015 WL 12696203, at *3 (C.D. Cal. Sept. 15, 2015).
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`And Plaintiff offers no explanation for why the markets it references should be assessed as a single
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`market for purposes of antitrust law. See Ticketmaster LLC v. Designer Tickets & Tours, Inc., No.
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`CV 07-1092 ABC (JCx), 2008 WL 649804, at *3–4 (C.D. Cal. Mar. 10, 2008) (dismissing antitrust
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`claim where claimant participated in downstream ticket sales market and not in allegedly
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`monopolized primary ticket distribution market).
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 10 of 13
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`Second, Plaintiff’s allegations also cannot support antitrust standing because Plaintiff cannot
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`establish that its alleged injury “was the direct result of [the defendant’s] allegedly anticompetitive
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`conduct.” Am. Ad Mgmt., 190 F.3d at 1058. That is, Plaintiff’s purported injury is prohibitively
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`indirect. To assess directness, courts “look to the chain of causation between [that] injury and the
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`alleged restraint in the market.” Id. As explained above, Plaintiff alleges that it suffered direct injury
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`because it purchased search advertising placements from Google at rates that were inflated by
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`Apple’s and Google’s supposed agreement not to compete with one another. Am. Compl. ¶ 48;
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`Opp’n 18–19. But saying it had a direct injury does not make it so. In fact, Plaintiff’s theory of
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`injury depends on a tenuous series of implausible assumptions, including that Apple “had been
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`working on its own search engine,” id. ¶ 127—i.e., that Apple would enter a market for general
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`search services. Cf. Bubar v. Ampco Foods, Inc., 752 F.2d 445, 450 (9th Cir. 1985) (explaining that
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`an entity could not be considered a potential competitor without “a genuine intent to enter the market
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`and a preparedness to do so”). It also depends on the assumption that Apple would have developed
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`a corresponding search advertising business that, in turn, would have driven down the prices for
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`search advertising placements. Yet, again, Plaintiff does not even allege any intention by Apple to
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`develop search advertising capabilities—i.e., that Apple would enter a market for search advertising.5
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`See Toscano v. PGA Tour, Inc., 201 F. Supp. 2d 1106, 1117 (E.D. Cal. 2002) (finding “no direct
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`injury” where plaintiff’s claims depended on “a multitude of speculative intervening events”).
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`Plaintiff’s inability to establish a direct injury weighs strongly against any notion that it has antitrust
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`standing here and accordingly militates in favor of dismissal of its antitrust claims.
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`Third, and for these same reasons, Plaintiff’s theory of harm is impermissibly speculative and
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`cannot support antitrust standing. In considering the speculative measure of harm prong of antitrust
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`standing, courts consider whether “the alleged injury was indirect” and whether “the alleged effects
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`. . . may have been produced by independent factors.” Am. Ad Mgmt., 190 F.3d at 1059 (omission
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`5 Indeed, as set forth in Defendants’ Motion to Dismiss, even if Plaintiff had alleged that Apple had
`any intention of offering search advertising services, Plaintiff’s injury would still be premised on an
`impermissibly speculative chain of causation that would require it to demonstrate (1) that Apple
`would have developed a search engine, (2) that Apple’s search engine would have been successful,
`(3) that consumers would use Apple’s search engine, (4) that Apple would have developed a
`corresponding search advertising business, and (5) that Apple’s search advertising business would
`have driven down the prices for search advertising placements. Mot. 19.
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 11 of 13
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`in original) (quoting Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
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`459 U.S. 519, 542 (1983)). Given the “many speculative links in the chain of causation” that would
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`be required under Plaintiff’s theory, there can be “no way of knowing[] what would have occurred”
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`but for Defendants’ alleged conduct, including whether Plaintiff “would have avoided the harm it
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`alleges.” See City of Oakland v. Oakland Raiders, 20 F.4th 441, 459–61 (9th Cir. 2021) (finding
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`that the plaintiff’s damages were inherently speculative for the same reasons that the plaintiff could
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`not establish directness). This factor, too, thus strongly weighs against Plaintiff’s ability to plead
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`antitrust standing here, and likewise supports dismissal. See City of Pittsburgh v. W. Penn Power
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`Co., 147 F.3d 256, 268–69 (3d Cir. 1998) (explaining that alleged injuries, including “non-
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`competitive rates,” were speculative where they “may never occur” and finding “no direct link”
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`between those injuries and alleged agreement whereby one defendant would withdraw an application
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`for regulatory approval and the other defendant would allegedly charge higher, noncompetitive rates
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`for electric utility service).
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`Taken together, these factors demonstrate that Plaintiff lacks antitrust standing: Plaintiff’s
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`indirect and speculative injuries cannot support its claims against the Apple Defendants. Ultimately,
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`no amount of repleading could remedy these deficiencies because it would not make Apple a
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`successful general internet search provider or provider of search advertising services. Plaintiff’s
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`claims therefore must be dismissed with prejudice for lack of antitrust standing—that is, a participant
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`in the only theoretical markets that Plaintiff alleges a restraint. Cf. Innovation Marine Protein, LLC
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`v. Pac. Seafood Grp., No. 6:17-cv-00815-MC, 2018 WL 1461501, at *12 (D. Or. Mar. 23, 2018)
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`(dismissing antitrust action with prejudice for lack of antitrust standing where “[n]o amount of
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`repleading [would] turn [the plaintiff] into a participant in the relevant market”).
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`III. CONCLUSION
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`For the foregoing reasons, and for the reasons articulated in the Apple Defendants’ Motion
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`to Dismiss the Complaint and Reply in Support of their Motion to Dismiss the Complaint, this Court
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`should dismiss Plaintiff’s Complaint with prejudice for failure to state a claim. Kendall, 518 F.3d at
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`1051–52 (explaining that “[d]ismissal without leave to amend is proper if it is clear that the complaint
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 12 of 13
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`could not be saved by amendment” and affirming dismissal with prejudice where the plaintiffs “were
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`already granted leave to amend once”).6
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`DATED: August 25, 2022, By: /s/ Steven C. Sunshine
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`Steven C. Sunshine (admitted pro hac vice)
`Julia K. York (admitted pro hac vice)
`SKADDEN, ARPS, SLATE, MEAGHER & FLOM
`LLP
`1440 New York Avenue, N.W.
`Washington, DC 20005-2111
`Telephone: (202) 371-7000
`Facsimile: (202) 393-5760
`Email: steven.sunshine@skadden.com
`Email: julia.york@skadden.com
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`Jack P. DiCanio (SBN 138752)
`SKADDEN, ARPS, SLATE, MEAGHER & FLOM
`LLP
`525 University Avenue
`Palo Alto, California 94301
`Telephone: (650) 470-4660
`Facsimile: (213) 621-5430
`Email: jack.dicanio@skadden.com
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`Karen Hoffman Lent (admitted pro hac vice)
`Michael A. Lanci (admitted pro hac vice)
`SKADDEN, ARPS, SLATE, MEAGHER & FLOM
`LLP
`One Manhattan West
`New York, New York 10001
`Telephone: (212) 735-3000
`Facsimile: (212) 735-2000
`Email: karen.lent@skadden.com
`Email: michael.lanci@skadden.com
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`Attorneys for Defendants Apple Inc. and Tim Cook
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`6 Even if the Court does not outright dismiss Plaintiff’s claims, Defendants’ Motion to Dismiss also
`demonstrated that the Court should limit the relief Plaintiff seeks. For one thing, the four-year
`limitations period under Section 4 of the Clayton Act, 15 U.S.C. § 15b, precludes damages predating
`December 27, 2017. Mot. 21–24. For another, Plaintiff’s requests for injunctive relief are wholly
`defective, as they all rely on Plaintiff’s novel theory of public injunctive relief, Mot. 25, which this
`Court has already held to be deficient, see ECF No. 86 at 5–8.
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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`Case 4:21-cv-10001-HSG Document 88 Filed 08/25/22 Page 13 of 13
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`SIGNATURE ATTESTATION
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`Pursuant to Civil L.R. 5-1(h)(3), I hereby attest that I have obtained the concurrence in the
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`filing of this document from all the signatories for whom a signature is indicated by a “conformed”
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`signature (/s/) within this e-filed document, and I have on file records to support this concurrence
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`for subsequent production for the Court if so ordered or for inspection upon request.
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`DATED: August 25, 2022 By: /s/ Steven C. Sunshine
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`APPLE DEFENDANTS’ SUPPLEMENTAL BRIEF ISO MOTION TO DISMISS
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`Case No. 4:21-cv-10001-HSG
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