February 27, 2024
With a Department of Justice lawsuit appearing imminent, Apple (AAPL) may have provided last-minute evidence to bolster the DOJ’s case against its potentially anticompetitive behavior in the wake of the Epic Games trial.
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“Whether Apple’s “compliance” with Judge Gonzalez Roger’s order is anticompetitive is a trickier question than you might think,” said Daniel McCuaig, a partner at Cohen Milstein Sellers & Toll who previously served as an attorney in the DOJ’s antitrust division. But DOJ lawyers “won’t be amused. Apple’s demonstration of disdain for both competition and a court’s lawful order surely makes the Division at least marginally more likely to file suit. And I would expect the episode to be included in the complaint – it offers a compelling narrative of a company that not only believes itself to be above the law but also will require a very clear and firm injunction to convince it otherwise . . . The remedy that Apple now is flouting could have been imposed for a Sherman Act violation. In which case, Apple achieving the same result by these different means would properly be viewed as anticompetitive.”