Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Apple seeks to intervene in federal antitrust case against Google, (Jan 10, 2025)

By Christopher M. Longo, J.D.

Apple contends that Google cannot adequately represent its interests in the remedies phase of the case.

Following a ten-week liability trial and a decision by the federal district court for the District of Washington, D.C finding that Google LLC violated Section 2 of the Sherman Act by using exclusive distribution agreements to maintain its monopoly power in the markets for general search services and general search text advertising, Apple has filed a motion to intervene in the remedies phase of the case, claiming that Google cannot adequately defend its interests in the companies’ Information Services Agreement (ISA), and that Apple’s interest in the ISA, and right to contract with Google, is a protectable property interest. In their opposition motions, the Justice Department’s Antitrust Division and the Colorado plaintiff states claim that that Apple's intervention is both untimely and unnecessary, and that Apple has been aware of the case's focus on the ISA since the complaints were filed in 2020 and chose to remain on the sidelines (U.S. v. Google LLC, No. 1:20-cv-03010-APM (D.D.C. Jan. 9, 2025)).

Apple's motion to intervene. Apple's motion to intervene comes as the court considers remedies following a liability decision against Google. Apple's motion is rooted in its desire to protect its “property interest in its existing contract with Google” and “its ability to enter into future contracts with Google across a host of domains, including general search, AI, and other related areas.” Apple argues that the proposed final judgment (PFJ) the plaintiffs recently filed would terminate the ISA and restrict “Apple's ability to enter into new commercial arrangements with Google for the next decade.” Apple contends that the PFJ is based on incorrect assumptions, such as its potential entry into the general search market. Apple asserts that it must be allowed to present evidence and arguments to dispel these assumptions.

Apple further argues that Google cannot adequately represent its interests in this case. Apple argues that “the breadth of Plaintiffs’ PFJ makes it impossible for Google to give sufficient attention to defending the ISA,” and that because the PFJ goes beyond the ISA and “targets Apple’s ability to explore or enter into future commercial arrangements with Google,” Google cannot adequately represent Apple’s interests. As to the timeliness of its motion, Apple argues that the plaintiff’s filing of their PFJ “dramatically impacted Apple’s assessment of adequate representation,” and that because it moved promptly “after ‘the potential inadequacy of representation came into existence,’” its motion is timely.

Justice Department’s opposition. The DOJ asserts that Apple has been aware of the case’s focus on the ISA since the complaints were filed in 2020, and that during the “three years of discovery,” which “culminat[ed] in a 10-week liability trial in Fall 2023,” Apple participated in liability discovery as a non-party and “produc[ed] documents and provid[ed] testimony at depositions, the majority of which focused on the ISA.” Despite this, the DOJ states that “Apple argues that it needs to intervene at this late stage due to a sudden misalignment of interests between Google and Apple created by Plaintiffs’ PFJ.

The motion argues that Google’s and Apple’s interests are “identically aligned” in that “Google’s PFJ seeks full preservation of Apple’s rights under the ISA since it would ‘permit Google to enter contracts for default status on Apple’s (and other browsers’) search access points’” and “permit Apple (and other search distributors) to continue receiving value for distributing Google Search to users on Apple’s search access points.” The DOJ contends that Google has adequately represented Apple's interests throughout the litigation.

Opposition from Colorado plaintiff states. Joining the opposition, the Colorado plaintiff states argue that Apple has not demonstrated a legally protected interest in the remedies phase of the case. They argue that Apple's interest in preserving the status quo of its relationship with Google is not legally protectable, as the court has already declared that in the case at bar, “the ‘status quo’ is a liability holding that the ISA contributes to an illegal monopoly.” Furthermore, they contend that Apple's interest in potential future contracts with Google is too speculative to warrant intervention.

The Colorado plaintiff states assert that Apple's motion fails to meet the requirements for intervention as of right under Rule 24(a) because it lacks a legally protected interest that the action would threaten to impair. They contend that “Apple’s purported interest in potential future contracts with Google…is entirely contingent, indirect, and generalized,” and that courts “routinely hold that such hypothetical, future actions are not a concrete interest to justify intervention.”

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

Judge: Mehta, A.

Attorneys: David E. Dahlquist, Department of Justice, for the U.S. Phillip Weisner, Attorney General of Colorado, for Colorado plaintiff states. Alfred C. Pfeiffer, Jr. (Latham & Watkins LLP) for Apple, Inc.

Companies: Google LLC; Apple, Inc.

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