`
`No. _________
`
`================================================================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ♦ ---------------------------------
`
`CORONAVIRUS REPORTER, CALID INC, PRIMARY
`PRODUCTIONS LLC & DR. JEFFREY ISAACS,
`
`v.
`
`APPLE INC.,
`
`Petitioners,
`
`Respondent.
`
`--------------------------------- ♦ ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Ninth Circuit
`
`--------------------------------- ♦ ---------------------------------
`
`PETITION FOR WRIT OF CERTIORARI
`
`--------------------------------- ♦ ---------------------------------
`
`KEITH MATHEWS
`AMERICAN WEALTH PROTECTION
`1000 Elm Street #800
`Manchester, NH 03101
`(603) 622-8100
`keith@awplegal.com
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`1. Did the District Court err in denying leave to
`amend a first-to-file developer antitrust lawsuit
`concerning free digital apps, when Petitioner Dr.
`Jeffrey Isaacs had never amended his complaint
`once as a matter of course, and no Foman v. Davis,
`371 U.S. 178 (1962) factors were analyzed?
`2. Does the tying of digital software distribution
`stores to the iPhone device by Apple Inc., repre-
`sent pernicious conduct subject to the per se anti-
`trust rule established in Northern Pacific Railway
`Co. v. United States, 356 U.S. 1 (1958)?
`3. Does Apple’s contrived digital notary stamp repre-
`sent a modern-day stamp tax which facilitates
`gatekeeping and censorship of software distribu-
`tion, violating Northern Pacific tying rules?
`In light of Aspen Skiing Co. v. Aspen Highlands
`Skiing Corp., 472 U.S. 585 (1985), and its estab-
`lished precedent on the significance of exclusion-
`ary conduct in Section 2 claims, beyond the
`confines of market definition, was a Rule 12 dis-
`missal for purported market definition defects of
`free apps improper?
`Is the failure of the current Brown Shoe pricing
`formulas to define free digital products as a rele-
`vant market, as practiced by Apple Inc., indicative
`of a need for the Court to revisit the original text
`of the Sherman Act or to refine the application of
`Brown Shoe?
`
`5.
`
`4.
`
`
`
`ii
`
`QUESTIONS PRESENTED – Continued
`
`
`6. Does Ninth Circuit Hicks vs. PGA Tour case law
`bypass mandatory fact-finding requirements un-
`der Brown Shoe Co. v. United States, 370 U.S. 294
`(1962), contrast with economic reality and estab-
`lished jurisprudence, and improperly exonerate
`the largest monopoly in history at the pleading
`stage?
`7. Did Apple advance knowingly disingenuous posi-
`tions that violated the sanctity of the oath, includ-
`ing irreconcilable objection to and endorsement of
`Epic’s relevance, and misrepresentation of Mi-
`crosoft exemption for per se tying platforms?
`
`
`
`
`
`iii
`
`PARTIES TO THE PROCEEDING
`
`
`Petitioners are Coronavirus Reporter, CALID Inc,
`
`Primary Productions LLC, and Dr. Jeffrey Isaacs. Peti-
`tioners proceeded as Plaintiffs in the United States
`District Court for the Northern District of California,
`and as Appellants in the United States Court of Ap-
`peals for the Ninth Circuit.
`
`Respondent Apple Inc. proceeded as Defendant in
`
`the District Court and Appellee in the Ninth Circuit.
`
`
`
`CORPORATE DISCLOSURE STATEMENT
`
`The corporate entity Petitioners each do not have
`
`any parent corporations, and no publicly held corpora-
`tion owns 10% or more of their stock.
`
`
`
`STATEMENT OF RELATED CASES
`Coronavirus Reporter et al. v. Apple Inc., U.S. Dist.
`Court District of NH 21-c-47-LM.
`Primary Productions LLC v. Apple Inc., U.S. Dist. Court
`District of Maine 21-c-137-JDL.
`Jeffrey D. Isaacs, Dr. and Coronavirus Reporter; Calid,
`Inc.; Primary Productions, LLC v. Apple Inc. and Fed-
`eral Trade Commission, 9th Circuit Court of Appeals
`22-15166, District Court Northern District of CA No.
`3:21-cv-05567.
`
`
`
`
`
`iv
`
`STATEMENT OF RELATED CASES – Continued
`
`
`Coronavirus Reporter; Calid, Inc.; Primary Produc-
`tions LLC and Jeffrey D. Isaacs, Dr. v. Apple Inc. and
`Federal Trade Commission, 9th Circuit Court of Ap-
`peals 22-15166, District Court Northern District of CA
`No. 3:21-cv-05567.
`
`
`
`
`
`v
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ................................
`i
`PARTIES TO THE PROCEEDING ......................
`iii
`CORPORATE DISCLOSURE STATEMENT ......
`iii
`STATEMENT OF RELATED CASES ..................
`iii
`TABLE OF CONTENTS ......................................
`v
`TABLE OF AUTHORITIES ................................. viii
`PETITION FOR WRIT OF CERTIORARI ...........
`1
`OPINIONS BELOW .............................................
`4
`JURISDICTIONAL STATEMENT ......................
`5
`STATUTORY PROVISIONS ................................
`5
`STATEMENT OF THE CASE..............................
`6
`REASONS FOR GRANTING THE PETITION ... 16
`
`I. THE DISTRICT COURT ERRED IN DENY-
`ING LEAVE TO AMEND A FIRST-TO-FILE
`DEVELOPER ANTITRUST LAWSUIT
`CONCERNING FREE DIGITAL APPS,
`WHEN PETITIONER DR. JEFFREY
`ISAACS HAD NEVER AMENDED HIS
`COMPLAINT ONCE AS A MATTER OF
`COURSE, AND NO FOMAN V. DAVIS, 371
`U.S. 178 (1962) FACTORS WERE ANA-
`LYZED ........................................................ 16
`
`
`
`vi
`
`TABLE OF CONTENTS – Continued
`
`Page
` II. APPLE’S DESIGN OF THE IPHONE RE-
`QUIRES END-USERS TO PURCHASE
`SOFTWARE, I.E. APPS, THROUGH THE
`PROPRIETARY APP STORE. TYING
`DIGITAL SOFTWARE DISTRIBUTION
`STORES TO THE IPHONE DEVICE REP-
`RESENTS PERNICIOUS CONDUCT PUR-
`SUANT TO NORTHERN PACIFIC ............. 20
` III. THE PANEL’S OVERLOOK OF NOTARY
`STAMPS AS A MODERN-DAY STAMP
`TAX DISREGARDS NORTHERN PA-
`CIFIC ......................................................... 26
` IV. THE NINTH CIRCUIT’S OVERLOOK OF
`APPLICANT’S INVOCATION OF ASPEN
`SKIING CO. V. ASPEN HIGHLANDS SKI-
`ING CORP. DISREGARDED SUPREME
`COURT PRECEDENT ON EXCLUSION-
`ARY CONDUCT, RATHER THAN RELE-
`VANT MARKET, AS THE FOUNDATION
`OF CERTAIN SECTION 2 CLAIMS ......... 29
` V. THE PANEL’S MISAPPLICATION OF REL-
`EVANT MARKET STANDARDS IS ER-
`RONEOUS UNDER BROWN SHOE ........ 31
` VI. FREE APPS ARE UNDEFINED UNDER
`BROWN SHOE PRICING FORMULAS,
`AND REQUIRED THE COURT REVERT
`BACK TO THE ORIGINAL TEXT OF
`SHERMAN OR MODIFY BROWN SHOE
`FOR SSNDQ .............................................. 34
`
`
`
`vii
`
`TABLE OF CONTENTS – Continued
`
`Page
` VII. APPLE’S LITIGATION CONDUCT VIO-
`LATED THE SANCTITY OF THE OATH
`WHEN THE CORPORATION ADVANCED
`CONTRADICTORY POSITIONS THAT
`CAN NOT BE RECONCILED ................... 37
`CONCLUSION ..................................................... 40
`
`APPENDIX
`Appendix A
` United States Court of Appeals for the Ninth
`Circuit, Opinion, November 3, 2023 ................ App. 1
`Appendix B
` United States District Court, Northern District
`of California, Order Granting Defendant’s
`Motion to Dismiss, and Denying Plaintiffs’
`Motions for Preliminary Injunction, to Strike,
`and to Append Claim, November 30, 2021 .... App. 19
`Appendix C
` United States Court of Appeals for the Ninth
`Circuit, Denial of Rehearing, January 4,
`2024 ................................................................ App. 74
`Appendix D
` Correspondence .............................................. App. 76
`
`
`
`viii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Aspen Skiing Co. v. Aspen Highlands Skiing
`Corp., 472 U.S. 585 (1985) ........................ 3, 11, 29-31
`Brown Shoe Co. v. United States, 370 U.S. 294
`(1962) ............................................ 2, 13, 17, 31, 33-36
`Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d
`864 (9th Cir. 1991) ................................................... 22
`Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336
`(9th Cir. 1984) .......................................................... 22
`Eastman Kodak v. Image Technical Services,
`Inc., 504 U.S. 451 (1992) .......................................... 24
`Edward Darcy Esquire v Thomas Allin of Lon-
`don Haberdasher (1602) 74 ER 1131 ....................... 2
`Eminence Capital, LLC et al. v. Aspeon, Inc., 316
`F.3d 1048 (9th Cir. 2003) ................................... 17, 18
`Foman v. Davis, 371 U.S. 178 (1962) .............. 16, 17, 18
`FTC v. Qualcomm Inc., 969 F.3d 974 (9th Cir.
`2020) ........................................................................ 34
`Hicks v. PGA Tour, Inc., 897 F.3d 1109 (9th Cir.
`2018) ...................................................... 12, 13, 17, 18
`International Salt Co. v. United States, 332 U.S.
`392 (1947), ............................................................... 26
`Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466
`U.S. 2 (1984) ...................................................... 22, 26
`Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d
`1038 (9th Cir. 2008) ................................................. 13
`
`
`
`ix
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Northern Pacific Railway Co. v. United States,
`356 US 1 (1958) ................ 2, 11, 17, 20, 23, 24, 26, 41
`Pepper v. Apple, 587 U.S. __ (2019) ............................. 41
`Polich v. Burlington Northern, Inc., 942 F.2d
`1467 (9th Cir.1991) ................................................. 17
`United States v. Microsoft Corp., 253 F.3d 34
`(D.C. Cir. 2001) ............................................ 21, 22, 40
`
`
`OTHER AUTHORITIES
`Loyola Law Review’s Epic Games v. Apple: Tech-
`Tying and the Future of Antitrust, Vol. 41, Is-
`sue 3, 215 (2021) ............................................... 14, 25
`
`
`
`1
`
`PETITION FOR WRIT OF CERTIORARI
`
`This Petition arises from a District Court’s dis-
`
`missal of a class action Sherman Act antitrust law-
`suit, brought by several developers as lead Plaintiffs,
`against Apple Inc. The District Court, and the affirm-
`ing en banc Ninth Circuit, erroneously determined
`that the First Amended Complaint failed to state a
`claim of relief, pursuant to Rule 12 of the Federal
`Rules of Civil Procedure. The underlying complaint
`presented compelling evidence of Respondent’s anti-
`competitive practices. A Department of Justice lawsuit,
`filed last week, invokes similar allegations concerning
`identical conduct alleged by Petitioners. In light of the
`serious error of the courts below, Petitioners Corona-
`virus Reporter et al. submit this Petition for writ of cer-
`tiorari to prevent ongoing censorship of software and
`to establish a Developer Compensation Fund to miti-
`gate damages from this historic monopoly.
`
`In their Answering Brief, Apple declared to the
`
`United States Court of Appeals that “censorship is not
`an antitrust injury.” Apple’s position throughout the
`underlying litigation is wholly inexcusable and neces-
`sitates a clear correction, in the form of a writ of certi-
`orari from the Supreme Court of the United States.
`Apple’s censorship declaration is at odds with centu-
`ries of competition law. The earliest antitrust ruling in
`English Common Law, the Case of Monopolies, found
`that “a monopoly prevents persons who may be skilled
`in a trade from practicing their trade, and therefore
`promotes idleness. A monopoly damages not only
`tradesmen in that field, but everyone who wants to use
`
`
`
`2
`
`the product, because the monopolist will raise the
`price, but will have no incentive to maintain the qual-
`ity of the goods sold.” Edward Darcy Esquire v Thomas
`Allin of London Haberdasher (1602) 74 ER 1131. From
`its origins, antitrust and competition law concerned in-
`jury to skilled tradesman. Whether it be a writer,
`painter, or a world-renowned scientist, as in this case,
`censorship by a monopoly is an injury to society at
`large, because it promotes idleness as defined by
`Darcy.
`
`Apple’s censorship mechanism functions primar-
`
`ily by tying app distribution to its iPhone smartphone,
`using a “notary stamp” to mark each piece of software
`approved in the App Store. The failure to address the
`illegal per se tying as elucidated in Northern Pacific
`Railway Co. v. United States, 356 U.S. 1 (1958) threat-
`ens the very pillars of free commerce and discourse
`over the internet. The District Court and Ninth Circuit
`decisions both neglect to mention Petitioner’s tying
`claims, undermining decades of established antitrust
`enforcement, and setting a dangerous precedent that
`portends a technological monopoly.
`
`By preventing a jury fact-finding of the relevant
`
`markets, the Ninth Circuit defied the stringent stand-
`ards set forth in Brown Shoe Co. v. United States, 370
`U.S. 294 (1962). It effectively exempted Apple from a
`lawsuit concerning anticompetitive conduct within
`the App Store and the broader smartphone app dis-
`tribution market. This denial of Petitioners’ right for
`determination of facts by jury is indefensible and con-
`stitutes a severe miscarriage of justice, circumscribing
`
`
`
`3
`
`the autonomy of the Sherman Act as it relates to the
`digital era.
`
`Petitioners’ Sherman Act claims have been cast
`
`aside by failing to contemplate metrics beyond price as
`seen in modern digital ecosystems. Likewise, the Ninth
`Circuit ignored the realities of the notary stamp as a
`tax, representing a departure from economic sensibil-
`ity and a willful blindness to the predatory strategies
`employed by Apple to profit from and censor every as-
`pect of software distribution.
`
`Additionally, disregard for the crucial precedent of
`
`Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472
`U.S. 585 (1985) allows Apple Inc. to circumvent the pro-
`hibition against exclusionary conduct without so much
`as judicial reproach. This precedent is indispensable to
`a cognizable understanding of Section 2 claims, and its
`exclusion smacks of inexcusable judicial oversight.
`
`The Ninth Circuit has abdicated its judicial re-
`
`sponsibility, allowing Apple unfettered exploitation of
`its userbase for its own economic and political agenda.
`A prompt remand of this case is indicated to preclude
`further irreparable harm to not only competition, but
`our American culture and the freedom it embraces.
`Coronavirus Reporter embodies the perfect vehicle
`
`to redress Apple’s conduct without delay and establish
`a Developer Compensation Fund. This Petition will
`demonstrate that, had the District Court and Ninth
`Circuit properly analyzed the relevant antitrust law,
`then it follows that the underlying Complaint stated a
`claim for relief.
`
`
`
`4
`
`This nation is confronted with the immeasurable
`
`influence of Apple Inc., a multi-national giant that war-
`rants the most rigorous antitrust scrutiny. Apple’s con-
`duct presents an existential threat to consumer choice,
`market competition, and even the broader socio-politi-
`cal fabric. The outright dismissal of this lawsuit by the
`District Court, and affirming Ninth Circuit, has effec-
`tively permitted Apple’s continuation of practices that
`constitute an unprecedented level of censorship and
`market control, under the guise of technological ad-
`vancement, editorial curation, and other pretext.
`
`Despite comprehensive briefing spanning two
`
`years, the Ninth Circuit failed to meaningfully address
`the actual issues raised on appeal. Monopolistic behav-
`ior, especially the coupling of the iPhone and App Store
`markets, has been allowed to perpetuate. This case
`presents sound, straightforward legal theory justifying
`a claim for relief pursuant to Sherman Act.
`--------------------------------- ♦ ---------------------------------
`
`OPINIONS BELOW
`A Petition for Rehearing and Rehearing en banc
`
`was denied by the United States Court of Appeals for
`the Ninth Circuit on January 4, 2024. The text order of
`the United States Court of Appeals for the Ninth Cir-
`cuit, affirming the District Court’s dismissal pursuant
`to FRCP Rule 12(b)(6), is attached hereto as Appendix
`A. Extensive FRAP Rule 28(j) correspondence coin-
`cided with the appellate briefing process, notably ref-
`erencing a related guilty jury verdict against Google
`
`
`
`5
`
`LLC’s Google Play store, and is hereto attached as Ap-
`pendix B. The Ninth Circuit conducted a hearing on
`March 29, 2023, which is published on the internet:
`https://www.youtube.com/watch?v=tdV_1ZX6xpI.
`
`The text of the order dismissing for failure to state
`
`a claim for relief by the United States District Court
`for Northern District of California is attached hereto
`as Appendix C.
`
`--------------------------------- ♦ ---------------------------------
`
`JURISDICTIONAL STATEMENT
`
`The Supreme Court of the United States has juris-
`
`diction under 28 U.S.C. § 1254(1) to grant a writ of cer-
`tiorari.
`
`--------------------------------- ♦ ---------------------------------
`
`STATUTORY PROVISIONS
`Sherman Act of 1890, Section 1
`
`Every contract, combination in the form of
`trust or otherwise, or conspiracy, in restraint
`of trade or commerce among the several
`States, or with foreign nations, is declared to
`be illegal. Every person who shall make any
`contract or engage in any combination or con-
`spiracy hereby declared to be illegal shall be
`deemed guilty of a felony, and, on conviction
`thereof, shall be punished by fine not exceed-
`ing $100,000,000 if a corporation, or, if any
`other person, $1,000,000, or by imprisonment
`
`
`
`6
`
`not exceeding 10 years, or by both said pun-
`ishments, in the discretion of the court.
`Sherman Act of 1890, Section 2
`Every person who shall monopolize, or at-
`tempt to monopolize, or combine or conspire
`with any other person or persons, to monopo-
`lize any part of the trade or commerce among
`the several States, or with foreign nations,
`shall be deemed guilty of a felony, and, on con-
`viction thereof, shall be punished by fine not
`exceeding $100,000,000 if a corporation, or, if
`any other person, $1,000,000, or by imprison-
`ment not exceeding 10 years, or by both said
`punishments, in the discretion of the court.
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF THE CASE
`
`Dr. Robert Roberts, the Chief Medical Officer for
`
`Coronavirus Reporter, is a widely recognized figure in
`academia whose work has impacted the lives of many.
`Prerequisite to nearly every cardiac procedure or hos-
`pital screening for myocardial infarction (“heart at-
`tack”) is laboratory blood analysis to detect damaged
`cardiac muscle tissue. In the 1980s, Dr. Roberts pio-
`neered the MBCK blood test used for two decades as a
`“gold standard,” and which directly laid the foundation
`for the current troponin lab test. Dr. Roberts earned
`the trust of NASA as Shuttle Cardiologist. Apple, how-
`ever, deprived its userbase the benefit of Dr. Roberts’
`scientific expertise and dedication towards saving
`lives, when the Respondent corporation improperly
`
`
`
`7
`
`blocked his app in February 2020 to develop their own.
`Apple’s SARS-CoV-2 tracing system never reached wide-
`spread availability or implementation in the United
`States. Dr. Roberts’ voluntary symptom reporting app,
`the first of its kind, was exactly the app needed four
`years ago, at the onset of the pandemic. Notably, Apple
`blocked the entire class of independent COVID apps,
`even those with institutional affiliation such as Dr.
`Roberts, a Director of Cardiac Translational Research
`at University of Arizona.
`
`Apple today wields authoritarian control over the
`
`vast network of interconnected smartphones that,
`combined, represent an extraordinary computational-
`communications capability (“network effect”). After
`the United States government spent decades build-
`ing what is now known as the Internet, we as a nation
`collectively invested in putting a smartphone, an amal-
`gamation of sensors, operating software, and commu-
`nication devices, in the hands of nearly every citizen,
`forming a network with capabilities amounting to sci-
`ence-fiction of prior generations. But it is Apple that
`benefits from growing “services revenue” representing
`its own tax on nearly the entire internet economy cre-
`ated by the United States government.
`
`The underlying action was brought to assert that
`
`the vast network capabilities of interconnected smart-
`phones are the property of the customers who paid for
`them. Apple iPhone users should enjoy unrestricted use
`of their smartphones to run necessary applications,
`
`
`
`8
`
`such as Coronavirus Reporter1, that ultimately are the
`raison d’être of this network. Free markets should de-
`fine what apps are selected by end-users, as opposed to
`Apple’s regime.
`
`There exist serious and growing ramifications of
`
`the monopoly. Apple’s anticompetitive proceeds, a de
`facto tax on the Internet and developers, are increas-
`ingly influencing geopolitical matters. Apple endorsed
`changing “Made in Taiwan” product labels to “Made in
`Chinese Taipei.” Similarly, the company’s CEO was
`last year discovered to have made a surreptitious $270
`billion payment to China, never disclosed to Apple
`shareholders. Political censorship of an entire domestic
`political party during an election, i.e. the Parler app,
`was highlighted in the underlying case. Apple has
`more recently attempted to censor Elon Musk’s Twit-
`ter/X on the basis of similar political ideological differ-
`ences. Censoring Dr. Roberts, trusted by NASA for
`John Glenn’s final mission, was an assault on science,
`and certainly un-American.
`
`There are reasons the Sherman Act was legislated
`
`to preempt one company taking on monopoly powers
`that could ultimately endanger not only the progress
`of scientific medical work like Coronavirus Reporter,
`but even geopolitical entities. The underlying Com-
`plaint describes an “international consensus,” which
`
`1 Primary Productions’ “Bitcoin Lottery” app was similarly
`
`censored by Apple. Dr. Jeffrey Isaacs’ WebCaller app was “Sher-
`locked” three years after its release when Apple copied its core
`functionality into FaceTime 15. The Petitioners, as co-lead Plain-
`tiffs, represent a class of developers damaged by Apple’s conduct.
`
`
`
`9
`
`Apple never refuted exists, that denounces Apple’s an-
`ticompetitive censorship.
`
`Apple’s opposition to Sherman Act enforcement
`
`echoes discredited fear-based arguments similar to
`those historically used by AT&T, claiming that safety
`and quality will decline. When the United States
`sought regulation of AT&T, the monopolist warned
`that telecommunication quality and cost would suffer
`from government intervention. That of course was
`plain wrong, as a telecommunications revolution oc-
`curred the following decade. The stakes here are
`higher than in 1984: 80% of commerce now takes place
`on Apple devices, and the entire free speech of a nation
`depends on its “network effect” infrastructure.
`
`This case is an unprecedented confrontation with
`
`the largest monopoly in history, Apple Inc. – a $3 tril-
`lion behemoth whose market valuation eclipses that of
`the classic textbook example, the British East India
`Company, by tenfold. With iPhone’s 65% market share,
`the vast majority of Americans find themselves with
`limited alternatives for conducting the essential tasks
`of daily life. Respondent’s illegal trust operations ex-
`tend beyond economic ambitions; this case concerns
`Apple’s desire to censor health care and effect cultural
`political development on a worldwide basis. Apple’s
`control over their userbase forms the largest censor-
`ship and surveillance network in world history.
`
`Every effort until now has failed to stop Apple. In
`
`2010, the United States Copyright Office recognized
`
`
`
`10
`
`the right of iPhone users to utilize their property free
`from Apple’s control:
`“the activity of an iPhone owner who modifies
`his or her iPhone’s firmware/operating system
`in order to make it interoperable with an ap-
`plication that Apple has not approved, but that
`the iPhone owner wishes to run on the iPhone,
`fits comfortably within the four corners of fair
`use.”
`
`Apple swiftly maneuvered around the Copyright Of-
`fice’s decision by implementing aggressive changes to
`its programming code. Seventy-three percent of Amer-
`icans supported now-disappeared 2023 legislation in
`the United States Senate to address app censorship
`and self-preferencing, which Senior Senator Blumen-
`thal described as the “most offensive practice of how
`[Apple] strangles new app development.” Senate Ma-
`jority Leader Chuck Schumer of California never
`brought the bill to floor vote.
`Coronavirus Reporter filed for a preliminary in-
`
`junction to end Apple’s monopolistic control of the in-
`ternet immediately, which was dismissed as moot by
`the District Court under Rule 12(b)(6)2. Despite Apple
`
`2 The Denial of the Injunction was the subject of Application
`
`23A718 to this Court. Dr. Isaacs was not a party to the Prelimi-
`nary Injunction motion. This Petition specifically concerns the
`premature dismissal under Rule 12, and the plausible relevant
`markets & Sherman Act theories that definitively stated a claim
`for relief. Should this Honorable Court grant writ of certiorari, it
`is respectfully requested that it issue an opinion on Apple’s per se
`tying defenses to help direct the progression of the underlying
`case and any renewed injunctive motions.
`
`
`
`11
`
`forfeiting critical arguments related to per se tying
`in Microsoft, the Ninth Circuit Panel failed to even
`acknowledge the extensive two-year briefing process
`and substantial oral argument before dismissing the
`FAC markets as ‘not based on economic reality’ – an
`erroneous conclusion by the District Court now en-
`dorsed without scrutiny. The Ninth Circuit Panel’s af-
`firmance is in stark defiance of the Congressional
`Subcommittee’s warning and objection, and hence, un-
`ambiguous legislative intent:
`
`------------------------------------------------------------------------------------------------------------------------------------
`“courts have adopted the view that
`underenforcement of the antitrust laws
`is preferable to overenforcement, a
`position at odds with the clear legislative
`intent of the antitrust laws.”
`------------------------------------------------------------------------------------------------------------------------------------
`
`As Petitioners articulated in the appellate oral ar-
`
`gument, three different approaches were pleaded to in-
`voke Sherman Act. First, a per se tying claim between
`the iPhone and App Store exemplifies pernicious con-
`duct under Northern Pacific. That tying claim also al-
`leges a Notary Stamp tax – which amounts to the
`largest Stamp Tax in history. Second, Petitioners de-
`scribed an App Market for free apps. Third, Petitioners
`defined exclusionary behavior under Aspen Skiing that
`leveraged its userbase access monopoly.
`
`The Ninth Circuit failed to meaningfully address
`
`any of these three approaches, which were not only
`reasonably based on economic reality, they were spot
`
`
`
`12
`
`on. Instead, the Panel parroted the farcical narrative
`Apple told the District Court that the FAC was an
`“eighth amendment” at “fifteen relevant Sherman Act
`markets.”
`A 12(b)(6) dismissal meant Coronavirus Reporter
`
`never benefitted from the requisite fact-finding inquiry
`of its relevant markets during trial. Coronavirus Re-
`porter’s primary market is hard to dispute: the U.S.
`Smartphone market, of which Apple controls 65%. This
`is consistent with Tim Cook’s own testimony that “Ap-
`ple sells devices.” The FAC named all competitors, such
`as Android phones and even Blackberry, and incorpo-
`rated a Congressional Subcommittee report detailing
`the U.S. Smartphone market. The lower courts simply
`ignored that Petitioners got the primary market cor-
`rect.3 They then proceeded to replace the FAC’s down-
`stream market for Apps – and App Stores (the “retail
`side of the App Market”) – with an Amex transaction
`market. This was a sleight of hand, and it resulted in
`breathtaking erroneous conclusions by substantial
`press and legal journals that Sherman Act is an im-
`proper tool for digital products.
`Ninth Circuit reliance on Hicks v. PGA Tour, Inc.,
`
`897 F.3d 1109, 1120 (9th Cir. 2018), a case involving a
`
`
`3 The recent DOJ/Apple lawsuit alleges one relevant market
`
`very similar to Petitioner’s “U.S. Smartphone” market, and an al-
`ternative “U.S. Superphone” market where Apple holds over 70%
`market share. Assuming the DOJ complaint is not dismissed un-
`der 12(b)(6), which seems almost certain, that fact alone should
`warrant the remand of Petitioner’s case, to uphold equal and con-
`sistent application of the law.
`
`
`
`13
`
`golf caddie advertising market deemed implausible,
`was plainly used to circumvent Supreme Court Brown
`Shoe authority. The Ninth Circuit was not even con-
`sistent with its own case law; Hicks is based on Newcal,
`which exempts per se tying from rigorous market defi-
`nition: “Plaintiffs must plead a relevant market to
`state an antitrust claim under the Sherman Act, un-
`less they assert a per se claim.” Newcal Indus., Inc. v.
`Ikon Office Sol., 513 F.3d 1038,1044–45 (9th Cir. 2008).
`
`Apple’s Ninth Circuit Answering Brief and oral ar-
`
`gument presented no viable defense to the legitimacy
`of Petitioner’s Sherman markets. In fact, Respondent
`conceded that Notarization stamps are an Apple “mark
`of approval,” refuting the District Court opinion that
`Notarization Stamps didn’t reflect economic reality.
`Applicant’s Closing Brief described how Apple ad-
`vanced contradictory positions to its own CEO’s testi-
`mony, violating the sanctity of the oath. This amounted
`to forfeiture of key Microsoft arguments with respect
`to Sherman Act illegal per se tying arrangements.
`
`This case presents a unique opportunity to effi-
`
`ciently curtail Apple’s unprecedented antitrust mis-
`conduct in the form a Developer Compensation Fund
`stemming from this private right of action, which com-
`plements any corrective measures sought by DOJ in
`their lawsuit. This case corroborates the Subcommit-
`tee Report revelation that Apple “closely monitors the
`success of apps in the App Store, only to copy the most
`successful. Apple takes other companies innovative
`features.” Petitioners’ software products were sub-
`jected to the conduct spotlighted in the Subcommittee
`
`
`
`14
`
`Report. Petitioners have properly invoked a tying
`cause of action which is the same tying scrutinized by
`multiple academic papers on the Apple monopoly, such
`as Loyola Law Review’s Epic Games v. Apple: Tech-
`Tying and the Future of Antitrust, Vol. 41, Issue 3, 215
`(2021). The appropriate per se should streamline and
`simplify the underlying trial, when compared to DOJ,
`Epic, or other cases concerning more complex rule-of-
`reason analysis.
`
`The public interest could not be more compelling
`
`or immediate. Every moment that Respondent’s anti-
`competitive practices endure, the very values that un-
`derpin the American marketplace are eroded. It is not
`simply a matter of economic theory but the safeguard-
`ing of consumer welfare, promotion of innovation, and
`the prevention of a monopolist sculpting the digital
`and cultural framework of society.
`
`This Petition seeks to mitigate the never-ending
`
`expansion of a digital monopoly that has been given
`free rein by the judiciary for nearly two decades. At
`stake is the open market itself and the very principles
`of freedom and innovation that foster the American
`ideal. For the reasons stated herein, Petitioners im-
`plore this Honorable Court to grant the writ of certio-
`rari, to uphold the antitrust framework that has been
`ignored too long, and to affirm the promise of American
`innovation driven by competition rather than coercion.
`
`The significance of the litigation against Apple Inc.
`
`before this Court transcends mere economic concerns.
`It calls to question the very fabric of our societal order,
`
`
`
`15
`
`defined and heavily influenced under the shadow of
`Apple’s internet dominance. Apple’s conduct, unchecked
`for over a decade, threatens this nation on a cultural,
`economic, and security basis. For nearly fifteen years,
`the internet as most Americans know it has been
`crafted and controlled by Apple Inc’s exploitative poli-
`cies. This has resulted in consequences that are admit-
`tedly difficult to assess, as for many it is difficult to now
`imagine a world without the iPhone. But what we do
`know is that Apple monetized people’s attention, en-
`couraging addicting apps and services that now consti-
`tute about a third – and growing – portion of Apple’s
`profits. In other words, Apple as an ongoing concern re-
`quires increasing monetization of daily activities, ra-
`ther than sale o
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