Antitrust Law Daily Wrap Up, ANTITRUST—D.D.C.: Apple fails to secure stay pending appeal of intervention denial in Google antitrust case, (Feb 4, 2025)

By Justin Marcus Smith, J.D.

Among other things, the court chafed that Apple’s motion to preserve the status quo would thwart the public interest because it would perpetuate the unlawful Google conduct already adjudicated.

Apple failed to justify why it should be entitled to stay remedy proceedings in the government’s long-running antitrust action against Google, held the federal district court in Washington, D.C. Apple said the company’s interests in contracts with Google are in jeopardy, but the court faulted Apple for being light on specifics. The case had been going on for long enough. The court held the public interest actually weighed against a stay because it would perpetuate the unlawful Google activity the court already adjudicated in the liability phase. The court said Apple was not bereft of an ability to defend its contractual interests in its pending appeal of intervention denial. The court also noted that Apple already enjoyed the status of amicus curia for making whatever arguments it wanted, arguments the court may have already heard (U.S. v. Google LLC, No. 1:20-cv-03010-APM (D.D.C. Feb. 2, 2025)).

Background. On August 5, 2024, the court found Google liable in two consolidated antitrust actions initiated in 2020 by the Department of Justice and the attorneys general of most U.S. states. Now in the remedy phase, the Justice Department plaintiffs and Google filed their respective proposed final judgments; however, on December 23, 2024, non-party Apple, Inc. (Apple) filed a motion to intervene for the stated limited purpose of protecting its contractual interests in its own Information Service Agreements (ISAs) with Google. Only a week ago, on Jan. 28, 2025, the court denied Apple’s motion to intervene.

No stay. The court denied Apple’s emergency motion for a stay or miscellaneous relief. Apple said it wanted to stay the remedy proceedings pending its appeal of the court’s order denying Apple’s motion for limited intervention. The court explained that a stay is an intrusion on ordinary process. It is not a matter of right, even if irreparable harm might result. The court concluded Apple did not satisfy the “stringent requirements” for obtaining the “extraordinary relief” of a stay pending its appeal.

First, and most critically, the court reasoned that Apple did not establish a likelihood of success on the merits. In the court’s opinion, Apple did not contend that the court applied the wrong legal standard or failed to consider all of the circumstances that Apple said called for its limited intervention. The court also said Apple did not explain why the court clearly erred in finding that Apple waited too long, i.e., 76 days, to seek intervention after the government’s proposed remedy framework ostensibly revealed potential inadequacies in Google’s representation that would supposedly prejudice Apple interests. In the court’s view, Apple simply reasserted, in conclusory fashion, that it was not dilatory in moving to intervene. That did not show a likelihood of success on the merits.

The court said Apple fared no better with respect to irreparable harm. Apple said it would suffer irreparable harm if excluded from the remedies phase because it would be left without an ability to defend its right to contract with Google. The court disagreed, first, that Apple was not bereft of an ability to defend its contractual interests. Apple already had leave to participate as amicus curia. Second, Apple indicated an intent to move to expedite its appeal. If granted, the court reasoned that would likely permit resolution of Apple’s intervention before the remedies trial. The court said Apple acknowledged this dynamic. In any event, Apple again failed to provide any specifics about irreparable harm. The court said Apple did not explain why it needed to be a party to offer the evidence it wants to present and did not even articulate how such evidence would differ from what the court already heard during the liability phase. Apple also failed to distinguish its own preferred remedy from what Google proposed. Accordingly, the court said Apple left it without anything to determine what harm would come without a stay.

Last, the court noted how harm to the existing public parties and interest weighed heavily against a stay. The case was over four years old, and the court could see that further postponement of the remedies evidentiary hearing would add months of delay. Preserving the status quo would be against the public interest because it would perpetuate the unlawful Google activity the court already found with respect to exclusive search distribution agreements involving Apple and other companies.

The Case is No. 1:20-cv-03010-APM.

Judge: Mehta, A.

Attorneys: Amanda J. Wentz, Office of the Attorney General, for State of Arkansas. R. S. Palmer, Office of the Attorney General, for State of Florida. Jake Marvin Shields, U.S. Department of Justice, for the U.S. John E. Schmidtlein (Williams & Connolly LLP) for Google LLC.

Companies: Google LLC; Apple

Cases: Antitrust AntitrustDivisionNews DistrictofColumbiaNews