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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES, et al.,

Plaintiffs,
v. Civil Action No. 2-24-cv-04055
(JXN-LDW)
APPLE, INC.
ORAL ARGUMENT REQUESTED
Defendant.

PLAINTIFFS’ BRIEF IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS
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TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................................................................... ii
INTRODUCTION .....................................................................................................1
FACTUAL BACKGROUND ....................................................................................3
LEGAL STANDARD ................................................................................................7
ARGUMENT .............................................................................................................8
I. The Complaint Alleges Monopoly Power ..........................................................10
A. The Complaint Pleads U.S. Markets for Smartphones and Performance
Smartphones .............................................................................................11
B. The Complaint Pleads Monopoly Power in Both Smartphone Markets..13
II. Apple Willfully Maintains Its Monopolies Through Anticompetitive Conduct.18
A. The Complaint Alleges Anticompetitive Conduct Under Section 2’s
Burden-Shifting Test.................................................................................18
B. Refusal-to-Deal-with-Rivals Doctrine Does Not Provide a Basis For
Dismissal ..................................................................................................27
i. Apple’s Conduct Is Not a Refusal to Deal ..........................................27
a. Apple Is Not Alleged to Be Refusing to Cooperate with Smartphone
Rivals...................................................................................................28
b. Apple Harms Competition by Restricting Developers and Users...30
c. Apple’s Expansive View of Refusal to Deal Should Be Rejected...34
ii. The Complaint Alleges Anticompetitive Conduct Even Under a
Refusal-to-Deal-with-Rivals Analysis ................................................36
[Link] Complaint Alleges Attempted Monopolization...........................................38
IV. The State Plaintiffs Have Standing.....................................................................39
CONCLUSION........................................................................................................40

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TABLE OF AUTHORITIES

Page(s)

Case

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

458 U.S. 592 (1982) .............................................................................................39
American Tobacco Co. v. United States,
328 U.S. 781 (1946) ...................................................................................... 14, 30
Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585 (1985) ......................................................................... 28, 29, 36, 37
Blix Inc. v. Apple, Inc.,
2021 WL 2895654 (D. Del. July 9, 2021) ............................................................25
Broadcom Corp. v. Qualcomm Inc.,
501 F.3d 297 (3d Cir. 2007).......................................................................... passim
Brown Shoe Co. v. United States,
5 U.S. 294 (1962) .................................................................................................11
California v. American Stores Co.,
495 U.S. 271 (1990) .............................................................................................40
Chase Mfg., Inc. v. Johns Manville Corp.,
84 F.4th 1157 (10th Cir. 2023)..............................................................................29
Continental Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. 690 (1962) .............................................................................................25
Conwood Co. L.P. v. U.S. Tobacco Co.,
290 F.3d 768 (6th Cir. 2002).................................................................................32
Davis v. Wells Fargo,
824 F.3d 333 (3d Cir. 2016)....................................................................................7
Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC,
111 F.4th 337 (4th Cir. 2024)........................................................................ passim
Eastman Kodak Co. v. Image Tech. Servs., Inc.,
504 U.S. 451 (1992) ...................................................................................... 17, 32
Epic Games, Inc. v. Apple Inc.,
559 F. Supp. 3d 898 (N.D. Cal. 2021)..................................................................13
Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009)................................................................................1, 8
FTC v. Wilh. Wilhelmsen Holding ASA,
341 F. Supp. 3d 27 (D.D.C. 2018)........................................................................14
FTC v. AbbVie Inc.,
976 F.3d 327 (3d Cir. 2020)..................................................................................14

ii
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FTC v. IQVIA Holdings Inc.,

2024 WL 81232 (S.D.N.Y. Jan. 8, 2024)..............................................................13
FTC v. Whole Foods Market, Inc.,
548 F.3d 1028 (D.C. Cir. 2008) ............................................................................12
Garshman v. Universal Resources Holding Inc.,
824 F.2d 223 (3d Cir. 1987)..................................................................................26
GN Netcom, Inc. v. Plantronics, Inc.,
967 F. Supp. 2d 1082 (D. Del. 2013)....................................................................11
Hanover 3201 Realty, LLC v. Village Supermarkets, Inc.,
806 F.3d 162 (3d Cir. 2015)..................................................................................12
Harrison Aire, Inc. v. Aerostar International, Inc.,
423 F.3d 374 (3d Cir. 2005)..................................................................................13
Harrison v. Jefferson Parish,
78 F.4th 765 (5th Cir. 2023) .................................................................................40
Host Int’l, Inc. v. Marketplace, PHL, LLC,
32 F.4th 242 (3d Cir. 2022)...................................................................................29
Houser v. Fox Theatres Mgmt. Corp.,
845 F.2d 1225 (3d Cir. 1988)................................................................................14
IDT Corp. v. Bldg. Owners & Managers Ass’n Int’l,
No. 03-cv-4113, 2005 WL 3447615 (D.N.J. Dec. 15, 2005) ...............................26
Illumina, Inc. v. FTC,
88 F.4th 1036 (5th Cir. 2023) ...............................................................................11
In re Adderall XR Antitrust Litig.,
754 F.3d 128 (2d Cir. 2014)..................................................................................29
In re eBay Seller Antitrust Litig.,
545 F. Supp. 2d 1027 (N.D. Cal. 2008)................................................................19
In re Generic Pharms. Pricing Antitrust Litig.,
605 F. Supp. 3d 672 (E.D. Penn. 2022)................................................................39
In re Google Digital Advert. Antitrust Litig.,
627 F. Supp. 3d 346 (S.D.N.Y. 2022)............................................................ 23, 35
In re Google Play Store Antitrust Litig.,
2024 WL 3302068 (N.D. Cal. July 3, 2024) ........................................................20
In re Insurance Antitrust Litig.,
938 F.2d 919 (9th Cir. 1991).................................................................................39
In re Suboxone Antitrust Litig.,
967 F.3d 264 (3d Cir. 2020)..................................................................................25
In re Thalomid & Revlimid Antitrust Litig.,
2015 WL 9589217 (D.N.J. Oct. 29, 2015) .................................................... 36, 38
Iqvia, Inc. v. Veeva Sys. Inc.,
2018 WL 4815547 (D.N.J. Oct. 3, 2018) .............................................................37
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John Wyeth & Brothers Ltd. v. CIGNA Int'l Corp.,

119 F.3d 1070 (3d Cir. 1997)..................................................................................8
Kolon Industries v. E.I. DuPont de Nemours & Co.,
748 F.3d 160 (4th Cir. 2014).................................................................................14
LePage’s, Inc. v. 3M,
324 F.3d 141 (3d Cir. 2003)................................................................. 9, 18, 19, 35
Lorain Journal Co. v. United States,
342 U.S. 143 (1951) ...................................................................................... 32, 34
Miller Indus. Towing Equip. Inc. v. NRC Indus.,
659 F. Supp. 3d 451 (D.N.J. 2023) .......................................................................26
Mylan Pharm. Inc. v. Warner Chilcott Public Ltd.,
838 F.3d 421 (3d Cir. 2016)....................................................................... 9, 19, 35
NCAA v. Alston,
594 U.S. 69 (2021) ........................................................................................ 26, 35
New York v. Meta Platforms,
66 F.4th 288 (D.C. Cir. 2023) ........................................................................ 32, 33
Novell, Inc. v. Microsoft Corp.,
731 F.3d 1064 (10th Cir. 20130).............................................................. 27, 33, 34
Ohio v. American Express Co.,
585 U.S. 529 (2018) .............................................................................................26
Otter Tail Power Co. v. United States,
410 U.S. 366 (1973) ................................................................................ 29, 36, 37
Pacific Bell Telephone Co. v. linkLine Commc’ns, Inc.,
555 U.S. 438 (2009) ................................................................................ 16, 28, 29
Pennsylvania Dental Ass’n v. Med. Serv. Ass’n of Pennsylvania,
745 F.2d 248 (3d Cir. 1984)..................................................................................38
Phillips v. Cnty. of Allegheny,
515 F.3d 224 (3d Cir. 2008)............................................................................. 3, 25
Princo Corp. v. ITC,
616 F.3d 1318 (Fed. Cir. 2010).............................................................................26
Re/Max Int’l, Inc. v. Realty One, Inc.,
173 F.3d 995 (6th Cir. 1999).................................................................................16
Roxul USA, Inc. v. Armstrong World Indus., Inc.,
2018 WL 810143 (D. Del. Feb. 9, 2018)..............................................................19
Stepan Co. v. Pfizer, Inc.,
2024 WL 3199834 (D.N.J. June 26, 2024)...........................................................27
Times-Picayune Publ’g Co. v. United States,
345 U.S. 594 (1953) .............................................................................................38
U.S. Airways v. Sabre Holding Corps.,
2022 WL 874945 (S.D.N.Y. Mar. 24, 2022) ................................................. 15, 16
iv
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U.S. Anchor Mfg., Inc. v. Rule Indus., Inc.,

7 F.3d 986 (11th Cir. 1993)...................................................................................38
United States v. Bertelsmann SE & Co.,
646 F. Supp. 3d 1 (D.D.C. 2022)..........................................................................12
United States v. Colgate & Co.,
250 U.S. 300 (1919) .............................................................................................34
United States v. Dentsply Int’l, Inc.,
399 F.3d 181 (3d Cir. 2005).......................................................................... passim
United States v. E. I. du Pont de Nemours & Co.,
351 U.S. 377 (1956) ...................................................................................... 10, 13
United States v. Gen. Dynamics Corp.,
415 U.S. 486 (1974) .............................................................................................14
United States v. Gillette Co.,
828 F. Supp. 78 (D.D.C. 1993).............................................................................12
United States v. Google LLC,
-- F. Supp. 3d --, 2024 WL 3647498 (D.D.C. Aug. 5, 2024)....................10, 11, 16
United States v. Griffith,
334 U.S. 100 (1948) ...............................................................................................2
United States v. Grinnell Corp.,
384 U.S. 563 (1966) ...................................................................................... 10, 14
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) ........................................................................ passim
Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP,
540 U.S. 398 (2004) ..................................................................................... passim
Viamedia Inc. v. Comcast Corp.,
951 F.3d 429 (7th Cir. 2020).............................................................. 32, 36, 37, 38
W. Penn Allegheny Health Sys., Inc. v. UPMC,
627 F.3d 85 (3d Cir. 2010)............................................................................ passim

Statutes

15 U.S.C. § 1 ............................................................................................................26
15 U.S.C. § 2 ..............................................................................................................8
15 U.S.C. § 26..........................................................................................................40

Rules

FED. R. CIV. P. 8(a) .....................................................................................................8

FED. R. CIV. P. 12(b)(6) ............................................................................................27

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INTRODUCTION

The question before the Court is simple: whether Plaintiffs’ First Amended

Complaint (“FAC” or “Complaint”) “set[s] forth sufficient facts to support plausible

claims.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211-12 (3d Cir. 2009). It does.

The Complaint’s detailed, well-pled allegations that Apple is a monopolist and has

acted anticompetitively to protect its monopoly meet and exceed the pleading

standard under Rule 12(b)(6). Apple’s motion should therefore be denied.

Rather than accepting the Complaint’s allegations as true, Apple’s motion

repeatedly raises and argues factual disputes that are not appropriate for resolution

at this stage of the case. For example, Apple disputes the Complaint’s allegations of

market definition, the reasonableness of Apple’s conduct, and other fundamental

factual questions. Resolving these disputes is not a matter for the Court at this time.

The very fact that Apple raises factual disputes demonstrates the need for a factfinder

to determine these matters using evidence, not conjecture.

In addition to its efforts to turn a motion to dismiss into a factfinding exercise,

Apple’s motion seeks to apply the wrong standard by recasting the Complaint’s

allegations of a complex exclusionary campaign as a case about refusal to deal with

rivals. Apple’s own motion belies its argument that the allegations fit this narrow

subcategory of antitrust cases, stating that Apple “has granted third parties

exceptionally broad access to iPhone, its features, and the App Store while also

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enforcing reasonable limitations to protect consumers.” Mot. 1. Apple has it halfway

right: this case is, indeed, about limitations on third parties, not a refusal to deal with

rivals. But those limitations have suppressed competition and harmed consumers.

And contrary to Apple’s baldfaced assertions, whether those limitations are

“reasonable” and “protect consumers” are ultimate fact questions for the Court, but

not on a motion to dismiss.

The gist of Apple’s motion appears to be that it believes it is being punished

for creating a popular product. Not so. Creating a popular product like the iPhone

does not confer upon Apple the right to violate antitrust laws by preventing other

companies, small and large, from delivering innovation and choice or preventing

consumers from considering other smartphones. And winning competition yesterday

does not entitle Apple to stop competition tomorrow, since “[t]he anti-trust laws are

as much violated by the prevention of competition as by its destruction.” United

States v. Griffith, 334 U.S. 100, 107 (1948).

The Complaint alleges in great detail that Apple has engaged in a course of

conduct to reduce competition, stifle innovation, and deprive users of choices they

should have had, all aimed at protecting its smartphone monopoly. Rather than

competing on merit, Apple has created a host of barriers to prevent developers from

sharing their innovations across smartphone platforms. And although Apple’s

campaign may not be visible to the public, its protection of the iPhone’s dominance

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in the U.S. smartphone market has come at a great and continuing cost to consumers.

This case addresses that continuing harm, and the Complaint’s “[f]actual

allegations” go well beyond “rais[ing] a right to relief above the speculative level.”

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

For the reasons set forth more fully below, Apple’s motion to dismiss should

therefore be denied.

FACTUAL BACKGROUND

The Complaint alleges the facts below, which are accepted as true and viewed

in the light most favorable to Plaintiffs for purposes of this motion to dismiss:

Apple’s iPhone is the dominant smartphone in the United States today.

FAC ¶¶ 165, 172, 181. Smartphones are portable electronic devices that are essential

to Americans’ daily lives. FAC ¶¶ 17, 140, 147. With their combination of advanced

hardware and software, they enable consumers to perform a wide variety of

functions, from making phone calls and sending text messages to playing games,

browsing the internet, making payments, and interacting with accessories like

smartwatches. FAC ¶¶ 10, 149.

These functions are generally provided through software applications, known

as “apps,” often created by third-party developers. FAC ¶¶ 50, 158. To run on a

smartphone, an app must communicate with the smartphone’s operating system

(“OS”). FAC ¶¶ 50, 158. The OS is foundational software that manages the

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smartphone’s hardware and other software programs on the device. FAC ¶¶ 50, 158.

Smartphone apps use application programming interfaces (“APIs”) to engage with

the OS in connecting to other apps or hardware to provide the functionality users

want. FAC ¶¶ 50, 158. For example, smartwatches use APIs to receive notifications

from smartphone apps, such as a new text message or calendar invitation. FAC ¶ 101.

Third-party developers use APIs for the iPhone’s OS (“iOS”) to create apps for the

iPhone. FAC ¶¶ 158-159. They can also write apps using APIs that run on a

“middleware” layer that can be standardized across OSs instead of relying on APIs

that work solely with a smartphone’s OS. FAC ¶ 163. After creating apps that work

with iOS, developers need a way to reach iPhone users. Apple limits that pathway to

one: Apple’s App Store. FAC ¶ 41.

The iPhone is a platform that connects iPhone users with the innovative apps,

accessories, and services created by developers that make the iPhone useful and

valuable. FAC ¶ 4. Today, users and developers depend on the iPhone, but certain

apps and technologies threaten its dominance by offering a wealth of content or

features that could disintermediate the iPhone or work equally well on non-iPhone

devices, lessening dependence on the iPhone. FAC ¶¶ 6, 52. “Cross-platform”

products would make it easier for consumers to enjoy the content and features they

value on any smartphone—some better, some cheaper—leading to greater

smartphone competition on the merits. FAC ¶¶ 6, 8.

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In response to these threats, Apple has imposed a web of technical and

contractual restrictions to impede developers from offering cross-platform

technologies that threaten Apple’s monopoly power, FAC ¶¶ 41-42, such as super

apps, FAC ¶¶ 60-70, cloud-streaming games, FAC ¶¶ 71-79, messaging apps, FAC

¶¶ 80-93, smartwatches, FAC ¶¶ 94-103, and digital wallets, FAC ¶¶ 104-118. These

restrictions serve Apple by driving consumers to the iPhone and degrading consumer

experience in a variety of ways.

Super apps reduce developer and user dependence on iOS and the App Store

by providing the same user experience across devices, reducing dependence on the

iPhone. FAC ¶¶ 63-64. Apple has responded by forcing developers to display mini

programs within these apps in unappealing text-only lists (as opposed to descriptive

icons, tiles, or pictures), FAC ¶¶ 67, 69, and by forbidding them from collecting

payment—even if developers were willing to pay Apple’s monopoly tax, FAC ¶ 70.

Text messaging is one of the most critical features of any smartphone. Apple’s

messaging app, Apple Messages, is available only on the iPhone. FAC ¶ 80. While

third-party developers have created cross-platform messaging alternatives, Apple

blocks them from exchanging text messages unless the other user has the same app.

FAC ¶ 85. Apple Messages’ advanced features (e.g., sending quality videos,

encrypting messages) work only for iPhone-to-iPhone communications. FAC ¶¶ 82-

85. This conduct drives users to Apple Messages, artificially pushing users to buy

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iPhones. FAC ¶¶ 88, 91. In response to a complaint about broken iPhone-to-Android

messaging, Apple’s CEO replied, “Buy your mom an iPhone.” FAC ¶ 92.

Digital wallet apps enable consumers to store and use important credentials

on their phones, such as credit cards, transit passes, forms of ID, and digital car keys.

FAC ¶¶ 105, 108. To “drive more sales of iPhone and increase stickiness to the Apple

ecosystem,” FAC ¶ 108, Apple has blocked third-party developers from adding tap-

to-pay functionality to any third-party digital wallet on the iPhone, undermining

third-party wallets, which, in turn undermines smartphone competition. FAC ¶ 104.

Smartwatches enable users to respond to messages, monitor health and fitness,

and make mobile payments, among their many features. FAC ¶ 95. Apple Watch

works only with an iPhone. FAC ¶ 96. Apple restricts third-party, cross-platform

watches from responding to messages and notifications and maintaining reliable

connections to the iPhone. FAC ¶ 100-101.

Cloud-streaming games let users play games on the cloud, making it easier to

buy a non-iPhone and get the same experience. FAC ¶¶ 71-72. Cloud platforms also

offer developers additional options for how to create programs and interact with

users. FAC ¶ 74. For years, Apple has blocked them through onerous and user-

unfriendly requirements that each app and update be approved and downloaded

separately. FAC ¶ 76. The result is that no effective cloud-gaming subscription

services are available to iPhone users. FAC ¶¶ 73-75.

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The Complaint identifies other areas where Apple has suppressed cross-

platform third-party technologies, such as cloud-storage apps (making it harder to

transfer data across phones), web browsers (limiting capabilities of third-party

browsers), video communication apps (steering users to FaceTime), and location

trackers (impeding cross-platform devices). FAC ¶ 120. Likewise, Apple’s wireless

carrier contracts inhibit carriers’ ability to sell competing smartphones. FAC ¶ 188.

All told, Apple uses its dominance over business partners to stymie valuable

technologies that function as middleware, facilitate switching phones, or reduce the

need for expensive hardware. FAC ¶ 120. This harms users in at least two ways.

First, it deprives users of the benefits of increased smartphone competition,

including lower smartphone prices and more innovation in smartphones and

smartphone OSs. FAC ¶ 126. Second, it deprives users of the benefits of the cross-

platform technologies that would have been developed but for Apple’s conduct,

including wallets with enhanced rewards and features, the ability to message

properly with family members regardless of smartphone choice, and fully functional

smartwatches with cameras or better battery life. FAC ¶¶ 10, 129-132.

LEGAL STANDARD

On a Rule 12(b)(6) motion, “the defendant bears the burden to show that the

plaintiff has not stated a claim.” Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir.

2016). The court accepts factual allegations as true, construes the complaint in the

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light most favorable to the plaintiff, and determines whether the plaintiff may be

entitled to relief under any reasonable reading of the complaint. Fowler, 578 F.3d at

210. In antitrust cases as in any other, a motion to dismiss must be denied if the

factual allegations, “taken as a whole, render the plaintiff's entitlement to relief

plausible.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir.

2010); FED. R. CIV. P. 8(a). Arguments “raised in passing (such as, in a footnote), but

not squarely argued” are waived. John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119

F.3d 1070, 1076 n.6 (3d Cir. 1997); see, e.g., Mot. 32 n.6 (parens patriae), 38 n.8

(dangerous probability of success), 40 (dismissal of allegations).

ARGUMENT

The Complaint lays out a straightforward violation of Section 2 of the

Sherman Act, 15 U.S.C. § 2. Apple possesses monopoly power in U.S. smartphone

and performance smartphone markets, and “engage[s] in anti-competitive conduct

that reasonably appears to be a significant contribution to maintaining monopoly

power,” as measured by Section 2’s burden shifting test. United States v. Dentsply

Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005). Like Microsoft before it, Apple impedes

middleware and middleware-like technologies “to meet the threat to [Apple’s]

monopoly in” the smartphone market. United States v. Microsoft Corp., 253 F.3d 34,

60 (D.C. Cir. 2001) (en banc). Apple attempts to recast the Complaint, revise the

law, and dispute the facts, but fails to provide any legitimate basis for dismissal.

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Section 2 is “designed to curb the excesses of monopolists and near-

monopolists.” LePage’s, Inc. v. 3M, 324 F.3d 141, 169 (3d Cir. 2003) (en banc).

“[T]he means of illicit exclusion, like the means of legitimate competition, are

myriad.” Microsoft, 253 F.3d at 58. As the Fourth Circuit held in Duke Energy

Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337 (4th Cir. 2024), “Section 2

focuses on anticompetitive conduct, not on court-made subcategories of that

conduct.” Id. at 354. Most conduct is therefore analyzed under the general burden

shifting framework that balances the benefits and harm of conduct.

Fighting the allegations in the Complaint, Apple argues that the “refusal to

deal” subcategory should apply. Mot. 11-19. It should not. “[W]hen anticompetitive

conduct is alleged to be typical . . . refusing to deal . . . the case law has developed

tests for analyzing such claims,” but for “a complex or atypical exclusionary

campaign . . . application of such specific conduct tests would prove too rigid.” Duke

Energy, 111 F.4th at 354. This case is not a typical refusal to deal with rivals but

rather an exclusionary campaign by Apple, so the flexible Section 2 burden-shifting

framework applies. See, e.g., Mylan Pharm. Inc. v. Warner Chilcott Public Ltd., 838

F.3d 421, 438 (3d Cir. 2016); Microsoft, 253 F.3d at 58-60.

The elements of monopolization under Section 2 are (1) possession of

monopoly power in a relevant market and (2) willful acquisition or maintenance of

that power, as distinguished from growth or development as a consequence of a

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superior product, business acumen, or historic accident. Broadcom Corp. v.

Qualcomm Inc., 501 F.3d 297, 306-307 (3d Cir. 2007). The elements of attempted

monopolization are that the defendant (1) has a specific intent to monopolize and

(2) has engaged in anticompetitive conduct that, taken as a whole, creates (3) a

dangerous probability of achieving monopoly power. W. Penn, 627 F.3d at 108. For

the reasons set forth below, the Complaint states claims for relief under Section 2.

Apple’s motion should be denied.

I. The Complaint Alleges Monopoly Power

The Complaint alleges that Apple possesses monopoly power in U.S. markets

for smartphones and performance smartphones. FAC ¶¶ 164-190. “Monopoly power

is the power to control prices or exclude competition.” United States v. E. I. du Pont

de Nemours & Co., 351 U.S. 377, 391 (1956). It “may be inferred from the

predominant share of the market,” which is sometimes referred to as indirect proof.

United States v. Grinnell Corp., 384 U.S. 563, 571 (1966); Dentsply, 399 F.3d at

187. Monopoly power also can be demonstrated by direct proof. Id. The Complaint

alleges both.

Monopoly power can be found regardless of how it is acquired. Microsoft, 253

F.3d at 56; United States v. Google LLC, -- F. Supp. 3d --, 2024 WL 3647498, at *2

(D.D.C. Aug. 5, 2024). Apple’s claim that it cannot have monopoly power due to

“iPhone users’ overall satisfaction” is wrong as a matter of law and contrary to the

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Complaint’s allegations. Mot. 37. A monopolist can violate Section 2 even if its

product is popular or high-quality. See Google, 2024 WL 3647498, at *2.

A. The Complaint Pleads U.S. Markets for Smartphones and

Performance Smartphones

The Complaint pleads two common-sense markets for smartphones that

reflect the reality of smartphone sales and usage in the United States. FAC ¶¶ 164,

166-167, 172-175. A relevant market consists of a product and geographic market.

Brown Shoe Co. v. United States, 370 U.S. 294, 324 (1962). A relevant product

market contains products that “are readily substitutable for one another.” Broadcom,

501 F.3d at 307. Courts typically identify such products using practical indicia from

Brown Shoe and other economic evidence. The Brown Shoe factors are “(1) industry

or public recognition, (2) the product’s peculiar characteristics and uses, (3) unique

production facilities, (4) distinct customers, (5) distinct prices, (6) sensitivity to

price changes, and (7) specialized vendors.” Google, 2024 WL 3647498, at *67.

Apple does not dispute the alleged relevant product market containing all

smartphones. FAC ¶¶ 164, 172-175. Performance smartphones are a narrower

alleged market that excludes entry-level smartphones. FAC ¶¶ 165-171. Apple’s own

documents distinguish between competition among higher-end and entry-level

smartphones, as do those of other industry participants. FAC ¶¶ 166-167; see

Illumina, Inc. v. FTC, 88 F.4th 1036, 1050 (5th Cir. 2023) (relying on defendant’s

“own internal documents” to discern product market); GN Netcom, Inc. v.

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Plantronics, Inc., 967 F. Supp. 2d 1082, 1088 & n.4 (D. Del. 2013). Other Brown

Shoe factors reinforce the industry recognition: performance phones have distinct

uses, characteristics, purchase terms, and customers. FAC ¶¶ 167-169.

Apple claims that the performance smartphone market is “divorced from

commercial reality.” Mot. 35. But that is a fundamentally factual issue that must be

decided through evidence, not on a motion to dismiss. Plaintiffs’ allegations

supporting the market, based on information gathered from Apple’s own assessments

and third parties, must be accepted as true and are more than sufficient to establish

that performance smartphones are “the ‘high end’ of other broad markets” and thus

a “distinct submarket[] for antitrust purposes.” United States v. Bertelsmann SE &

Co., 646 F. Supp. 3d 1, 28 (D.D.C. 2022) (top-selling books). 1

Plaintiffs have similarly alleged a valid geographic market because the United

States “is the area in which a potential buyer may rationally look for the

[smartphone] he or she seeks.” Hanover 3201 Realty, LLC v. Village Supermarkets,

Inc., 806 F.3d 162, 183-84 (3d Cir. 2015). The allegations that U.S. consumers are

unlikely to shop for smartphones in other countries, which have different distribution

channels, regulatory requirements, compatibility requirements, customer support,

prices, features, and promotions, FAC ¶¶ 176-179, more than satisfy this

1
See also FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1039 (D.C. Cir. 2008)
(premium grocery); United States v. Gillette Co., 828 F. Supp. 78, 82 (D.D.C. 1993)
(premium pens).
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requirement. And, as alleged, Apple sets U.S. prices separately from prices around

the world and makes other strategic decisions targeted to the U.S. market. FAC

¶ 179. Apple’s contentions regarding a broader global, all-smartphone market, Mot.

35, do nothing to disprove a narrower one. Almost all competition takes place in

multiple possible markets, some narrower and some broader. See FTC v. IQVIA

Holdings Inc., 2024 WL 81232, at *17 (S.D.N.Y. Jan. 8, 2024). Apple’s factual

disputes on these points are neither relevant nor appropriate at this stage. 2

B. The Complaint Pleads Monopoly Power in Both Smartphone Markets

The Complaint pleads monopoly power. Monopoly power is “the power to

control prices or exclude competition.” E.I. du Pont, 351 U.S. at 391. Monopoly

power can be established by indirect or direct evidence. The Complaint alleges both.

Indirect Evidence. Indirect evidence of monopoly power can be shown by

dominant market share and barriers to entry. Broadcom, 501 F.3d at 307. As alleged,

Apple’s market shares—65 percent of all smartphones and 70 percent of

performance smartphones—reflect a dominant share. FAC ¶ 181. They exceed this

Circuit’s rule that “[a]bsent other pertinent factors, a share significantly larger than

55% has been required to establish[] prima facie market power.” Dentsply, 399 F.3d

2
Apple relies on cases about single-brand “aftermarkets” for products that are sold
after the initial purchase of a product. See Mot. 33, 36 (citing Harrison Aire, Inc. v.
Aerostar International, Inc., 423 F.3d 374 (3d Cir. 2005); Epic Games, Inc. v. Apple
Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021)). These cases raise unique considerations
that do not apply here as the alleged markets are not aftermarkets.
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at 187. And they exceed the shares of other monopolists. See, e.g., FTC v. AbbVie

Inc., 976 F.3d 327, 373 (3d Cir. 2020) (60-71.5% share); Houser v. Fox Theatres

Mgmt. Corp., 845 F.2d 1225, 1230 (3d Cir. 1988) (66-71% share).

Apple argues that Plaintiffs must plead a 75% market share, relying on Kolon

Industries v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 174 (4th Cir. 2014). Mot.

35. But Kolon never suggested that 75% was required for monopoly power. Instead,

it recognized that “control[] over 70% of the relevant market” “adequately plead[s]

[] monopoly power” and that even a “market share of less than 60%” does not

“foreclose a finding of monopoly power.” Kolon, 748 F.3d at 174. Nor could Kolon

contain the holding Apple claims because the Supreme Court has held that “two-

thirds” of a market “constitute[d] ‘a substantial monopoly.’” Grinnell, 384 U.S. at

571 (quoting Am. Tobacco Co. v. United States, 328 U.S. 781, 796-98 (1946)).

Apple also argues that shares must be pleaded by units rather than revenue.

Mot. 36. Determining the right market shares is a fact-intensive inquiry because the

right metric of “a company’s ability to compete” can vary depending on the

circumstances of a case or industry. United States v. Gen. Dynamics Corp., 415 U.S.

486, 502 (1974). Courts routinely look to revenue-based shares. See, e.g., Dentsply,

399 F.3d at 188; FTC v. Wilh. Wilhelmsen Holding ASA, 341 F. Supp. 3d 27, 59-61

(D.D.C. 2018). Apple cites no case dismissing a complaint for failure to plead market

shares by units, another factual issue appropriately reserved for trial.

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The entry barriers and additional “pertinent factors” alleged in the Complaint

further support Apple’s monopoly power. See Dentsply, 399 F.3d at 187; Broadcom,

501 F.3d at 307; U.S. Airways, Inc. v. Sabre Holdings Corp., 2022 WL 874945, at *9

(S.D.N.Y. Mar. 24, 2022). The smartphone markets here feature significant barriers

to entry and expansion, including high switching costs and customer “stickiness,”

substantial network effects, product introduction costs, carrier relationships, and

regulatory hurdles. FAC ¶¶ 180-186. Indeed, Apple’s challenged course of conduct

is directed at raising barriers to smartphone competition, FAC ¶ 183, and locking

consumers to their iPhone, FAC ¶ 128. These barriers are evident from the repeated,

failed attempts at entry by well-resourced firms. FAC ¶ 186. Moreover, Apple’s

gatekeeper power allows it to block competitively threatening apps and accessories,

such as the super apps and cloud-gaming apps that Apple effectively blocked. These

factors, along with Apple’s pricing and imposed terms, FAC ¶ 188, support the

monopoly power allegations.

Samsung’s and Google’s smartphones do not negate the allegations of Apple’s

monopoly power but merely introduce yet another fact question into the mix. Mot.

36-37. The Complaint alleges that these firms, and others, face significant “barriers

to entry and expansion,” as demonstrated by Apple’s increasing market share and

many failed attempts to constrain Apple. FAC ¶¶ 182-183, 185-186 (emphasis

added); see also Mot. 37 (acknowledging allegations of switching costs and network

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effects). In addition, developers often need to reach iPhone users to reach viable

scale, FAC ¶ 181, which Apple leverages to constrain competition, FAC ¶ 41—a

market feature in platform cases that supports finding monopoly power with shares

much lower than here. See, e.g., U.S. Airways, 2022 WL 874945, at *9 (finding that

platform operator had monopoly power with 49-52% share in market with other

powerful competitors). 3 What matters here is that Plaintiffs have alleged in great

detail that Apple’s monopoly power is established through a dominant market share

and reinforced by barriers to entry and expansion. The inquiry should end there.

Direct Evidence. Plaintiffs also plead Apple’s monopoly power directly.

Direct evidence includes evidence that a defendant is unconstrained by market

forces. It can exert control over price, quality, innovation, or other dimensions of

competition. See Microsoft, 253 F.3d at 56-58; cf. Pac. Bell Tel. Co. v. linkLine

Commc’ns, Inc., 555 U.S. 438, 450 (2009) (“[F]or antitrust purposes, there is no

reason to distinguish between price and nonprice components of [competition]”).

Such evidence includes conduct that is “economically irrational absent market

dominance.” Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1020 (6th Cir.

1999); see also Microsoft, 253 F.3d at 57-58. It also includes proof that a defendant

3
Apple relies on factual assertions that “Android, not Apple, [is] ‘poised for world
domination,’” mischaracterizing the Google complaint. Mot. 36. That quote comes
from a 2010 Google document and addresses a different market that excludes Apple
and iOS (licensable mobile operating systems). Am. Compl. ¶ 64, United States v.
Google, ECF No. 94, No. 20-cv-03010-APM (Jan. 15, 2021).
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can exclude rivals, Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451,

477-78 (1992), as well as evidence of “supracompetitive prices” and “restricted

output,” Broadcom, 501 F.3d at 307.

As in Microsoft, Apple’s “pattern of exclusionary conduct could only be

rational” “if the firm knew that it possessed monopoly power.” Microsoft, 253 F.3d

at 58; accord Dentsply, 399 F.3d at 191. Apple forgoes quality-enhancing

innovations and third-party technologies without fearing that other competitors

might implement them and gain share. For example, Apple throttled user access to

super apps and cloud-streaming apps, which blocked these technologies on the

iPhone and reduced market-wide incentives to invest in them. FAC ¶¶ 67-71, 74-78,

182. Apple did this while gaining market share. Instead of market forces spurring

Apple to adopt these valuable technologies, Apple has been able to stifle their growth

and development, even on other U.S. smartphones. Only a monopolist can do that.

The Complaint is replete with other direct evidence of Apple’s monopoly

power. Apple judges product features “good enough” based on whether Apple (not

the market) introduced them, FAC ¶ 187; imposes contract terms that impede the

ability of carriers to promote rival smartphones, FAC ¶ 188; and charges static, high

prices to Apple customers and third-party developers with profit margins far

exceeding its next most profitable rival, FAC ¶¶ 56, 58, 188-189; Dentsply, 399 F.3d

at 191 (finding monopoly power based in part on “Dentsply’s profit margins”).

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Apple misconstrues the Complaint, arguing it does not “allege a restriction in

output . . . to demonstrate supracompetitive pricing.” Mot. 34. But Plaintiffs are not

relying on supracompetitive pricing to plead monopoly power, so Apple’s

argument—even were it accurate—is irrelevant to such showing. No more is

required at this stage. For these reasons, Plaintiffs have independently and

sufficiently pleaded monopoly power through direct evidence.

II. Apple Willfully Maintains Its Monopolies Through Anticompetitive

Conduct

The Complaint alleges that Apple engages in anticompetitive conduct to

maintain its smartphone monopolies. “A monopolist willfully acquires or maintains

monopoly power when it competes on some basis other than the merits,” LePage’s,

324 F.3d at 147, which can be “demonstrated by proof that a defendant has engaged

in anti-competitive conduct that reasonably appears to be a significant contribution

to maintaining monopoly power.” Dentsply, 399 F.3d at 187. In addition to

“competition on some basis other than the merits,” Broadcom, 501 F.3d at 308,

anticompetitive conduct means “attempt[ing] to exclude rivals on some basis other

than efficiency,” W. Penn, 627 F.3d at 108, or other conduct that “harm[s] the

competitive process and thereby harm[s] consumers,” Microsoft, 253 F.3d at 58.

A. The Complaint Alleges Anticompetitive Conduct Under Section 2’s

Burden-Shifting Test

The Complaint alleges anticompetitive conduct that meets Section 2’s burden

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shifting test. Under this test, (1) the plaintiff “must initially provide evidence of the

anticompetitive nature of a defendant’s conduct,” (2) “the defendant then has the

burden of proffering nonpretextual procompetitive justifications for its conduct,”

and (3) “the plaintiff may then either rebut those justifications or demonstrate that

the anticompetitive harm outweighs the procompetitive benefit.” Mylan, 838 F.3d at

438 (cleaned up); see also Microsoft, 253 F.3d at 58-59. “To survive dismissal

Plaintiffs are required only to establish” the first step, “a prima facie case.” In re

eBay Seller Antitrust Litig., 545 F. Supp. 2d 1027, 1033 (N.D. Cal. 2008). Apple’s

claim that it has built “a superior product” and repeated previews of its flawed

second-step justifications are unavailing and inappropriate at this stage of the case.

Mot. 1, 13-14, 21. “Weighing pro-competitive and anti-competitive effects is best

reserved for summary judgment or trial after the benefit of discovery.” Roxul USA,

Inc. v. Armstrong World Indus., Inc., No. 17-cv-1258, 2018 WL 810143, at *6 (D.

Del. Feb. 9, 2018).

Many types of conduct satisfy step one—and the burden-shifting test

overall—because “the means of illicit exclusion, like the means of legitimate

competition, are myriad.” Microsoft, 253 F.3d at 58; Duke Energy, 111 F.4th at 354.

For example, in LePage’s, the defendant used “bundled rebates” across a diverse set

of products to prevent customers from buying from a competitor that had a smaller

product catalog. LePage’s, 324 F.3d at 154-57. Likewise, courts have assessed

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restrictions related to the distribution of apps on smartphones under the burden-

shifting test. In re Google Play Store Antitrust Litig., No. 20-cv-05671, 2024 WL

3302068, at *11 (N.D. Cal. July 3, 2024).

The landmark Microsoft ruling applied burden shifting to conduct analogous

to Apple’s. Microsoft used its OS monopoly to “prevent[] the effective distribution

and use of products that might threaten that monopoly.” 253 F.3d at 58. In particular,

Microsoft targeted software called “middleware,” which let developers create

“applications [that] would run on any operating system on which the middleware

was also present.” Id. at 53. Middleware threatened Microsoft’s monopoly because

“[i]f a consumer could have access to the applications he desired—regardless of the

operating system he uses—simply by installing a particular browser on his computer

then he would no longer feel compelled to select Windows in order to have access

to those applications; he could select an operating system other than Windows based

solely upon its quality and price.” Id. at 60. In short, “the market for operating

systems would be competitive.” Id.

Microsoft violated Section 2 because it used its control of the Windows

platform to preference its own integrated products and suppress usage of third-party

middleware, such as web browsers. Microsoft’s restrictions on its own platform were

of “particular importance” and included prohibiting third parties from “(1) removing

any desktop icons, folders, or ‘Start’ menu entries; (2) altering the initial boot

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sequence; and (3) otherwise altering the appearance of the Windows desktop,” id. at

61; and (4) requiring applications to commit to “promote and distribute [Microsoft’s

Internet Explorer] and to exile [third-party] Navigator from the desktop” to secure

Explorer’s place “on the Windows desktop,” id. at 67-68. Other anticompetitive

tactics included technical integration that disadvantaged third-party browsers, id. at

64-67, exclusive dealing, id. at 73-74, and payoffs for default status, id. at 71-72, 75-

76. Microsoft was not competing on the merits because it did not “mak[e]

Microsoft’s own browser more attractive to consumers.” Id. at 65; see also id. at 62.

The Complaint alleges similarly anticompetitive conduct because, like

Microsoft, Apple wields its control over the platform to (1) impose technical and

contractual restrictions that suppress apps and accessories that (2) operate cross-

platform and threaten Apple’s smartphone monopoly.

Suppression of Apps and Accessories. The Complaint alleges that Apple uses

a variety of means to suppress apps and accessories. First, Apple’s monopoly power

over smartphone users paired with limiting distribution to its App Store give Apple

gatekeeper power that forces developers to submit to app review. FAC ¶¶ 41, 44-45,

126, 135. Apple then uses app review to undermine apps and accessories that

threaten its smartphone monopoly. For example, Apple requires would-be super apps

to display mini-programs in a flat, text-only list, rather than a user-friendly interface

with icons or tiles, and prevents developers of super apps from collecting payments

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from users. FAC ¶¶ 69-70. Apple likewise hinders cloud-gaming apps by requiring

a separate app for each game, instead of a single app with a catalog of games that

would be more convenient for users and lower cost for developers. FAC ¶¶ 75-77.

Apple’s restrictions have devastated these technologies, leaving them with little to

no penetration among smartphone users today. FAC ¶ 75; see Microsoft, 253 F.3d at

65. Apple applies similar restraints to other apps and accessories like browsers,

impeding the performance of these cross-platform products. FAC ¶ 120.

Second, Apple uses control over APIs to stop developers from offering iPhone

users key features, and instead allows only Apple’s proprietary Apple Watch, Apple

Wallet, and Apple Messages to offer them. These restrictions have the practical effect

of reducing usage of third-party alternatives. For example:

• Watches: Only Apple Watches can maintain a stable Bluetooth connection

to iPhones, allowing them to respond to notifications, such as by sending a
text message. FAC ¶¶ 101-102. Apple impairs third-party, cross-platform
watches from offering comparable functionality, even though they might
offer better battery life or other features that users prefer. FAC ¶¶ 101-102.

• Digital wallets: Apple has prevented third-party wallets from incorporating

tap-to-pay functionality on the iPhone, “[t]he most important function for
attracting users to a digital wallet for smartphones.” FAC ¶¶ 111-112.

• Messaging: Apple prevents third-party messaging apps from working with

carrier technologies necessary for text-to-anyone functionality. FAC ¶ 87.
Because of that, Apple Messages is the lone iPhone app with that feature,
forcing many users to make Apple Messages their primary messaging app.

None of this reflects a mere “lack [of] exact parity.” Mot. 15. These restraints

devastate third parties’ ability to develop products and consumers’ ability to use

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them, which is straightforward anticompetitive conduct. Microsoft, 253 F.3d at 65;

see also Duke Energy, 111 F.4th at 357 (monopolist’s “blend-and-extend strategy

hindered a new entrant’s ability to compete on the basis of efficiency”); In re Google

Digital Advert. Antitrust Litig., 627 F. Supp. 3d 346, 385 (S.D.N.Y. 2022) (denying

motion to dismiss where the defendant’s technical integration meant that other firms

“never had the opportunity” to win bid). Apple’s exclusionary practices create the

illusion that only Apple’s products “just work” (a common Apple marketing trope)

when in fact Apple is blocking equivalent or better alternatives from working

properly. Cf. Broadcom, 501 F.3d at 313 (inaccurate information can “confer an

unfair advantage and bias the competitive process”); FAC ¶ 90. This is the opposite

of competition on the merits. These examples are illustrative, not exhaustive. The

Complaint alleges a variety of other ways in which Apple restricts apps and

accessories and impairs other categories of apps. FAC ¶¶ 52-135.

Harm to Smartphone Competition. The Complaint alleges that Apple’s

suppression and degradation of cross-platform apps and accessories “reasonably

appears to be a significant contribution to maintaining monopoly power” in

smartphone markets. Dentsply, 399 F.3d at 187; Microsoft, 253 F.3d at 79. As in

Microsoft, the course of conduct here is directed at apps and accessories that are

“middleware” or pose similar cross-platform threats. Super apps are “fundamentally

disruptive” to Apple’s monopolies because they serve as a platform for mini

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programs that “do everything,” and thereby reduce users’ and developers’ reliance

on Apple’s apps, OS, and hardware. FAC ¶ 62; see also FAC ¶¶ 60-61. Cloud-gaming

technology offers a platform for creating and playing games using remote computing

power instead of Apple’s expensive hardware, empowering users to buy an “Android

for 25 bux” and developers to be more efficient. FAC ¶¶ 71-74, 79. Degrading cross-

platform messaging apps raises “obstacle[s] to iPhone families giving their kids

Android phones.” FAC ¶¶ 80, 91-92. Smartwatches pose a threat because they allow

users to “rely less on a smartphone’s proprietary software and more on the

smartwatch itself,” and because cross-platform smartwatches make it easier to

choose alternate smartphones. FAC ¶¶ 97-98; see also FAC ¶¶ 94, 99. And

undermining third-party digital wallets “increase[s] stickiness to the Apple

ecosystem.” FAC ¶¶ 108-10. These alleged threats to Apple’s smartphone monopoly

readily satisfy Plaintiffs’ pleading burden. See W. Penn, 627 F.3d at 109-10.

Unsurprisingly given Apple’s monopoly power, Apple’s conduct harms all

smartphone users. Users have fewer smartphone choices, pay higher smartphone

prices, and suffer lower-quality smartphones, apps, and accessories. FAC ¶¶ 126-

127, 130. And developers pay Apple higher fees and are unable to bring products to

market. FAC ¶¶ 126, 131-132. Developers have abandoned plans to offer super apps,

cloud-gaming apps, smartwatches, and digital wallets for U.S. smartphones because

developing them just for non-iPhones is not cost-effective. FAC ¶¶ 131-132.

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Plaintiffs need not isolate the specific harm from each aspect of Apple’s

conduct. Instead, the effects are assessed cumulatively. “[I]t is a misapplication of

antitrust doctrine for a court to treat a plaintiff’s allegations of anticompetitive

conduct ‘as if they were five completely separate and unrelated lawsuits,’ effectively

‘tightly compartmentalizing the various factual components and wiping the slate

clean after scrutiny of each.’” Duke Energy, 111 F.4th at 355 (quoting Continental

Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99 (1962)); In re

Suboxone Antitrust Litig., 967 F.3d 264, 270 (3d Cir. 2020) (defendant “incorrectly

asks us to examine each of these acts individually”).

The Complaint’s allegations do not “presume” harm to smartphone

competition, Mot. 32 (emphasis in original), or reflect “implausible leaps,” Mot. 30.

They use Apple’s ordinary-course assessments, see e.g. FAC ¶¶ 62, 71, 91-92, 108,

of how cross-platform technologies impact iPhone sales—assessments other market

participants echo. Apple can prove its own executives’ views “far-fetched,” Mot. 30,

at trial, not on a motion to dismiss. Phillips, 515 F.3d at 231-34.

Blix Inc. v. Apple, Inc., 2021 WL 2895654 (D. Del. July 9, 2021), is of no help

to Apple. Mot. 32. There, the plaintiff had “not alleged (nor explained)” how Apple

“eliminat[ed] competition in any market,” because the only alleged harm from

Apple’s conduct was to “specifically, Blix,” “a single competitor.” Blix, 2021 WL

2895654, at *3-5. The court distinguished Microsoft where the middleware market

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threat and OS competition were “interrelated.” Id. at *4.

Apple asserts an incorrect standard of proof under a different section of the

statute, 15 U.S.C. § 1, arguing that Plaintiffs must show “an actual adverse effect on

competition in the relevant market” that is “substantial,” Mot. 27. This is not the

right standard, which under Section 2 is whether Apple’s conduct “reasonably

appears to be a significant contribution to maintaining monopoly power” in

smartphone markets. Dentsply, 399 F.3d at 187. Apple’s test is one option for

showing competitive harm under Section 1, but even under that section, plaintiffs

may show effects “directly or indirectly.” Ohio v. Am. Express Co., 585 U.S. 529,

542 (2018). Section 1 direct evidence is “proof of actual detrimental effects on

competition such as reduced output, increased prices, or decreased quality in the

relevant market”—Apple’s test. But Section 1 indirect proof—“proof of market

power plus some evidence that the challenged restraint harms competition”—is a

full substitute and more common form of proof. Id. Apple’s cited cases do not

support applying this test here because they are about Section 1, 4 or are about Section

2 but say nothing about actual adverse effects. 5 In any event, even if Apple’s test

4
Mot. 27 (citing NCAA v. Alston, 594 U.S. 69, 96 (2021); Princo Corp. v. ITC, 616
F.3d 1318, 1338 (Fed. Cir. 2010); Garshman v. Universal Res. Holding Inc., 824
F.2d 223, 231 (3d Cir. 1987); IDT Corp. v. Bldg. Owners & Managers Ass’n Int’l,
No. 03-cv-4113, 2005 WL 3447615, at *10 (D.N.J. Dec. 15, 2005)).
5
Mot. 27 (citing Microsoft 253 F.3d at 58-59; Miller Indus. Towing Equip. Inc. v.
NRC Indus., 659 F. Supp. 3d 451, 466 67 (D.N.J. 2023))
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were correct, Apple once again raises a factual dispute to the extent it argues that its

conduct has not had a substantial adverse effect on the market.

Finally, the Court should reject any argument for dismissal of particular

allegations. Mot. 38-40. Rule 12(b)(6) provides for dismissal of “claims,” not

allegations. FED. R. CIV. P. 12(b)(6). Plaintiffs have “provided actual factual support

for [their] particular claim[s] at this stage of the litigation,” Stepan Co. v. Pfizer,

Inc., 2024 WL 3199834, at *2 (D.N.J. June 26, 2024) (emphasis added).

B. Refusal-to-Deal-with-Rivals Doctrine Does Not Provide a Basis For

Dismissal

The practices in the Complaint are neither “refusals to deal” nor are they

“lawful.” Mot. 11. The refusal-to-deal-with-rivals doctrine is a narrow “court-made

subcategor[y] of [anticompetitive] conduct” that applies to a specific fact pattern.

Duke Energy, 111 F.4th at 354. Plaintiffs’ allegations do not implicate this doctrine

because they do not challenge Apple’s interactions with smartphone rivals, and

because Apple has harmed competition not by withholding resources from

smartphone rivals but rather by imposing anticompetitive conditions on users and

developers. But even if that doctrine applied, the Complaint states a claim.

i. Apple’s Conduct Is Not a Refusal to Deal with Rivals

Apple’s conduct falls outside “the narrow field of refusals to deal.” Novell,

Inc. v. Microsoft Corp., 731 F.3d 1064, 1076 (10th Cir. 2013). Refusal-to-deal-with-

rival claims assert that a company has monopolized a market “by establishing an

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infrastructure that renders them uniquely suited to serve their customers” and is now

harming competition by failing to “share the source of their advantage” in the

monopolized market with rivals in that market. Verizon Commc’ns Inc. v. L. Offs. of

Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004). The Supreme Court has applied

this doctrine to two scenarios: (i) a challenge to a defendant’s outright refusal to

provide a rival a requested product or service, see id. at 407-409; Aspen Skiing Co.

v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608-11 (1985); or (ii) a rival’s

challenge to an ongoing deal with commercially disadvantageous terms, which the

Court viewed as challenging the defendant’s refusal to offer more favorable terms,

see linkLine, 555 U.S. at 442, 451. As alleged, Apple’s practices fit neither category.

Under these circumstances, courts analyze the conduct using the fact-intensive

burden-shifting test, rather than refusal-to-deal principles. Duke Energy, 111 F.4th at

354 (explaining that conduct-specific tests are “too rigid” for “allegations of a

complex or atypical exclusionary campaign, the individual components of which do

not fit neatly within pre-established categories”).

a. Apple Is Not Alleged to Be Refusing to Cooperate with

Smartphone Rivals

The refusal-to-deal-with-rivals framework does not apply because it is limited

to dealings with rivals in the monopolized market and this case does not allege that

Apple fails to deal with smartphone rivals. Courts expressly limit the doctrine to

dealing with rivals. E.g., linkLine, 555 U.S. at 448 (“a firm’s unilateral refusal to

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deal with its rivals”); Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1173

(10th Cir. 2023) (“We have never extended a refusal-to-deal-with-rivals analysis

outside that situation.”); Host Int’l, Inc. v. Marketplace, PHL, LLC, 32 F.4th 242,

250 n.7 (3d Cir. 2022) (analysis applies “only among competitors”). Apple

repeatedly edits the text of decisions to make its argument, replacing the narrow term

“rivals” with the broader “third parties,” Mot. 12 (linkLine), 16 (Trinko; Aerotec).

In this context, rivals are companies seeking to compete in the monopolized

market. E.g., linkLine, 555 U.S. at 442-443 (rivals in local DSL); Trinko, 540 U.S.

at 402-04 (rivals for local telephone service); Aspen Skiing, 472 U.S. at 595 (rivals

for downhill skiing in Aspen); Otter Tail Power Co. v. United States, 410 U.S. 366,

368 (1973) (rivals in retail distribution of electric power). Apple’s cases reflect this

distinction. See, e.g., In re Adderall XR Antitrust Litig., 754 F.3d 128, 135 (2d Cir.

2014) (defendant failed to supply its “competitors” with off-brand drug to sell in

competition with defendant). No part of this case involves forced sharing with

smartphone rivals. Instead, Apple’s alleged conduct originates from its smartphone

monopoly and restricts users and third parties, as Apple acknowledges. Mot. 14.

Limiting the doctrine to rivals in the monopolized market is not “formalistic.”

Mot. 18. It is dictated by the very considerations that underlie this doctrine in the

first place. For example, forcing monopolists “to share the source of their advantage

. . . may lessen the incentive for the monopolist, the rival, or both to invest in those

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economically beneficial facilities” that produced the monopoly. Trinko, 540 U.S. at

407-408; Mot. 2. But developers are not seeking to manufacture a smartphone or

take a free ride on Apple’s smartphone innovations. If anything, Apple has been able

to rest on its laurels because it has affirmatively blocked innovation from developers.

Restoring competition may well enhance Apple’s incentive to invest to improve the

iPhone because “immunity from competition is a narcotic, and rivalry is a stimulant,

to industrial progress.” Am. Tobacco, 328 U.S. at 813.

The Trinko Court also noted that forced dealing could facilitate collusion in

the monopolized market. 540 U.S. at 408. Commercial dealings between Apple and

developers do not raise these concerns. Finally, the Trinko Court expressed that

refusal-to-deal cases raise unique remedy considerations. 540 U.S. at 408. Apple

seizes on this to raise the specter of future, speculative remedies. But government

enforcement actions provide the Court with an array of options that do not require it

to sit as a “central planner,” Mot. 13, or “judicial[ly] redesign” the iPhone, Mot. 1.

What matters now is that Apple and the restricted third parties are not alleged to be

smartphone rivals, so refusal-to-deal-with-rivals doctrine does not apply.

b. Apple Harms Competition by Restricting Developers and Users

This case is not about Apple’s refusal to “share the source of [its] advantage.”

Trinko, 540 U.S. at 407. It is about Apple imposing contractual restrictions and rules

to control developers and restrict smartphone users in service of its monopoly. FAC

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¶ 41. Apple uses control over app distribution to “dictate how developers innovate

for the iPhone” and other smartphones, driving users away from products that

threaten its monopoly. FAC ¶¶ 54-55. Apple likewise employs technological means

to prevent developers from innovating in certain ways to tether users to Apple’s

platform, denying them choice. E.g., FAC ¶¶ 94, 110, 118. In fact, Apple readily

acknowledges that it invited developers to create iPhone apps but set “limitations”

it believes are “reasonable.” Mot. 1. The reasonableness of these limitations is the

factual question in this case and cannot be decided on a motion to dismiss.

Seeking to dramatically expand this doctrine, Apple claims that “decisions

about the terms on which it chooses to deal with third parties are not ‘exclusionary’

as a matter of law” because they constitute refusals to deal. Mot. 2. Contrary to

Apple’s sweeping assertion, Apple’s restrictions on developers and users are

straightforward exclusionary conduct—not refusals to deal with rivals—and their

“reasonableness” is assessed by applying the burden-shifting standard to evidence

introduced at trial. The Microsoft court did not treat analogous practices like

overriding a user’s browser choice and pressuring a business partner to abandon

efforts to develop a competitively threatening technology as refusals to deal, nor did

it defer to Microsoft’s conception of “reasonable” restraints on competition. 253 F.3d

at 65, 77. Other cases agree. In Kodak, the defendant “[sold] parts to third parties

only if they agreed not to buy service from [Independent Service Organizations],”

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and the Supreme Court rejected the idea that refusal-to-deal-with-rivals law

governed that term of dealing between a monopolist and third party. 504 U.S. at 463

& n.8; see also Lorain Journal Co. v. United States, 342 U.S. 143, 152-53 (1951)

(refusal-to-deal-with-rivals doctrine does not apply where the monopolist imposes

conditions or restrictions that interfere with a customer’s or third party’s ability to

do business with others). Likewise, courts apply “general standards of § 2”—burden

shifting—when a monopolist requires “that the buyer also purchase[] a different (or

tied) product.” Viamedia Inc. v. Comcast Corp., 951 F.3d 429, 468 (7th Cir. 2020).

The Complaint further alleges that Apple has harmed competition by

affirmatively degrading other smartphones, not by refusing to cooperate with them.

For example, Apple brands messages between iPhone and non-iPhone users with a

green bubble and restricts their functionality. FAC ¶ 90. Such affirmative conduct is

not a refusal to deal with rivals, Conwood Co. L.P. v. U.S. Tobacco Co., 290 F.3d

768, 788 (6th Cir. 2002) (destroying sales materials analyzed under general test), and

is properly a subject for trial, not a motion to dismiss, see W. Penn, 627 F.3d at 110.

New York v. Meta Platforms, 66 F.4th 288 (D.C. Cir. 2023), confirms these

principles. Meta’s “Competitor Integration Policy” provided that “Apps on

Facebook may not integrate, link to, promote, distribute, or redirect to any app on

any other competing social platform.” Id. at 303. The court analyzed this policy

“under cases discussing ‘exclusive dealing’”—not as a refusal to deal—because the

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alleged harm from the policy was restricting third parties in their dealings with

others. Id. at 303-04. By contrast, Meta’s “Core Functionality Policy” disallowed the

use of the “Facebook platform to promote, or export user data to, a product or service

that replicates a core Facebook product or service.” Id. at 305. That policy was

treated as a refusal to deal due to a critical distinction with this case: the Core

Functionality Policy was concerned with developers “duplicat[ing] Facebook’s core

products.” Id. The Complaint does not allege that other firms are entitled to duplicate

the iPhone. Instead, it alleges that Apple has prevented third parties from creating

and distributing apps and accessories that provide additional features that threaten

Apple’s monopoly. See Microsoft, 253 F.3d at 53 (middleware was distinct from

Windows and could not “take over all operating system functions”).

Novell does not help Apple either. Novell made “WordPerfect—Microsoft

Word’s leading rival in word processing applications,” and originally claimed

monopolization of office applications—a market in which Word and WordPerfect

were rivals. 731 F.3d at 1069. Because those claims were time-barred, Novell “had

to develop a different theory” and settled on a Microsoft copycat. Id. Novell is

distinguishable in two critical ways. First, Novell sought to force Microsoft to share

software code that Microsoft Word used to avoid having to develop its own. Id. This

lawsuit seeks to force Apple to lift restrictions on developers, not share its own

smartphone technology with smartphone competitors. Second, “Novell was able to

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achieve the same functionality for consumers” without Microsoft’s code. Id. Here,

by contrast, users and developers have no way to achieve the same functionality to

overcome Apple’s app review process and API restrictions. FAC ¶¶ 41-45, 67, 71,

85-86, 101-102, 104. And ultimately, Novell failed to prove its analogy to Microsoft

at trial; the case was not dismissed on the pleadings. Novell, 731 F.3d at 1068-69.

c. Apple’s Expansive View of Refusal to Deal Should Be Rejected

Apple’s refusal-to-deal arguments are suffused with other fundamental errors.

For example, Apple claims to have an unqualified right to “exercise [its] independent

discretion as to parties with whom [it] will deal.” Mot. 1 (quoting United States v.

Colgate & Co., 250 U.S. 300, 307 (1919)). But Apple omits the Court’s qualification,

in the very same sentence, that this “right” obtains only “in the absence of any

purpose to create or maintain a monopoly.” Colgate, 250 U.S. at 307 (emphasis

added). The Supreme Court has already rejected attempts to remove Colgate’s

critical qualification: “[T]he word ‘right’ is one of the most deceptive of pitfalls; it

is so easy to slip from a qualified meaning in the premise to an unqualified one in

the conclusion.” See Lorain Journal, 342 U.S. at 152.

Apple also asserts an unfettered “right” to make business “judgments,”

especially for “claims implicating intellectual property.” Mot. 12, 14-15. The law

holds otherwise and, in any event, the Complaint does not challenge Apple’s

intellectual property rights. Vague invocations of intellectual property change

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nothing. “Intellectual property rights do not confer a privilege to violate the antitrust

laws.” Microsoft, 253 F.3d at 359. And a monopolist’s business judgments are not

immune from antitrust scrutiny. “[A] monopolist is not free to take certain actions

that a company in a competitive (or even oligopolistic) market may take, because

there is no market constraint on a monopolist’s behavior.” LePage’s, 324 F.3d at 151-

52. Apple’s arguments regarding intellectual property are “no more correct than the

proposition that the use of one’s personal property, such as a baseball bat, cannot

give rise to tort liability.” Microsoft, 253 F.3d at 359.

Nor can Apple “relabel a restraint as a product feature and declare it immune

from [antitrust] scrutiny.” Alston, 594 U.S. at 101. Even if Apple’s restraints were

considered “features,” product-design decisions are governed by the burden-shifting

test, not refusal-to-deal-with-rivals doctrine. See Mylan, 838 F.3d at 438-41

(applying general Section 2 standard to change in product designs); Microsoft, 253

F.3d at 64-67; In re Google Digital Advert., 627 F. Supp. 3d at 401 (denying motion

to dismiss where publisher software restricted customers from connecting on

comparable terms with third-party advertising exchanges).

Nor does the law contain a special rule applying refusal-to-deal-with-rivals

doctrine to Apple’s conduct setting “the rules of the road on its own platform.” Mot.

19, 23. Microsoft condemned multiple practices “setting the rules of the road” for

Microsoft’s Windows platform, including preventing Windows users from choosing

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a default browser other than Microsoft’s and requiring developers to use Microsoft

features in applications sold “to Windows users.” 253 F.3d at 64, 71-72, 75-76.

Finally, Apple challenges allegations concerning its decisions not “to develop

versions of proprietary products and services for competitors’ devices” like Android-

compatible Apple Messages and Apple Watch. Mot. 7, 15-16. These facts are

relevant for analyzing the purpose and effect of Apple’s conduct directed at

developers of cross-platform products. See Microsoft, 253 F.3d at 72.

ii. The Complaint Alleges Anticompetitive Conduct Even Under a

Refusal-to-Deal-with-Rivals Analysis

Even if a refusal-to-deal-with-rivals analysis were applied, the Complaint

more than adequately states a claim. See Duke Energy, 111 F.4th at 366 (reversing

summary judgment where record facts showed a refusal to deal “achieve[d]

anticompetitive ends”). A refusal-to-deal-with-rivals claim alleges a “predatory”

refusal that has anticompetitive effect. Aspen Skiing, 472 U.S. at 605; Otter Tail, 410

U.S. at 377-78. Predatory means the refusal is “attempting to exclude rivals on some

basis other than efficiency,” Aspen Skiing, 472 U.S. at 605, or “motivated by anti-

competitive goals,” In re Thalomid & Revlimid Antitrust Litig., 2015 WL 9589217,

at *15 (D.N.J. Oct. 29, 2015). A variety of factors inform the “case-by-case

assessment[] of whether a challenged refusal to deal is indeed anticompetitive,” and

“no factor is always decisive by itself.” Viamedia, 951 F.3d at 457. For example,

predatory purpose can be shown by a willingness to forsake short-term profits.

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Trinko, 540 U.S. at 409. Similarly, the defendant’s conduct can be compared with its

behavior prior to obtaining monopoly power, its conduct in more competitive

markets, and its conduct towards customers that do not pose a competitive threat. Id.

at 410; Aspen Skiing, 472 U.S. at 603-04, 609. Contrary to Apple’s argument, Mot.

20, a prior course of dealing and a short-term profit sacrifice “are helpful but not

dispositive.” Viamedia, 951 F.3d at 462; see also Duke Energy, 111 F.4th at 362-63;

Iqvia, Inc. v. Veeva Sys. Inc., 2018 WL 4815547, at *3 (D.N.J. Oct. 3, 2018). The

Supreme Court condemned a refusal to deal even absent a prior course of dealing.

Otter Tail, 410 U.S. at 377-79; see also Trinko, 540 U.S. at 410.

The Complaint plausibly pleads predatory purpose. As its market power has

grown, Apple has progressively restricted the ability of certain types of developers

to make innovative cross-platform products. FAC ¶¶ 3, 38-39, 67, 101. Apple has

forsaken commissions on super apps and cloud games and sacrificed Apple Watch

sales. E.g., FAC ¶¶ 40, 51, 62, 70-71, 80, 131, 133. These profit sacrifices are not

“implausible,” Mot. 21, but well pleaded as a long-term, predatory strategy to

restrain competition by suppressing apps and accessories that pose a competitive

threat. The Complaint further alleges that Apple discriminates against competitively

threatening technologies, FAC ¶¶ 41-42, 119, 146-147, and the Complaint includes

statements by Apple executives reflecting its “dreams of monopoly” over

smartphone rivals, Trinko, 540 U.S. at 409; Aspen Skiing, 472 U.S. at 608 n.39; FAC

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¶¶ 71, 91-92, 98, 108-109, 147. Furthermore, the Complaint alleges that Apple does

not impose these types of anticompetitive restrictions in more competitive markets.

FAC ¶¶ 66 (noting presence of super apps in Asia), 142 (explaining that Apple does

not restrict Mac developers to a single “Apple-controlled app store”).

These allegations “support the inference that [Apple] acted with

anticompetitive intent,” and therefore a motion to dismiss is “too soon” to determine

the legality of Apple’s conduct. In re Thalomid, 2015 WL 9589217, at *15 (denying

motion to dismiss); Viamedia, 951 F.3d at 463 (reversing dismissal).

III. The Complaint Alleges Attempted Monopolization

The Complaint alleges the three elements of attempted monopolization. First,

“a dangerous probability of achieving monopoly power may be established by a 50%

share.” U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 1000 (11th Cir. 1993).

The Complaint pleads shares far above this threshold, as well as barriers to entry,

Apple’s continuously increasing share, and other supporting facts. Supra Section I.

Second, the Complaint alleges anticompetitive conduct. Supra Section II.

Third, the Complaint pleads specific intent to monopolize—an intent “to

destroy competition or build monopoly”—both directly and circumstantially. Times-

Picayune Publ’g Co. v. United States, 345 U.S. 594, 626 (1953); Pa. Dental Ass’n v.

Med. Serv. Ass’n of Pa., 745 F.2d 248, 260-261 (3d Cir. 1984). The Complaint quotes

Apple executives explaining that they have intentionally erected barriers to

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consumers choosing smartphones on their merits. E.g., FAC ¶¶ 65, 71, 91; see also

Tasty Baking Co. v. Ralston Purina, Inc., 653 F. Supp. 1250, (E.D. Pa. 1987). The

Complaint also pleads facts from which intent may be inferred, including conduct

that “lack[s] a legitimate business justification” and is unrelated to efficiency.

Broadcom, 501 F.3d at 318 (reversing dismissal); see also FAC ¶¶ 131, 141-147.

Apple’s factual assertions to the contrary, Mot. 38, must be rejected at this stage.

IV. The State Plaintiffs Have Standing

Apple’s challenge to the States’ standing fails for two reasons. Mot. 32 n.6.

First, the Complaint establishes the States’ parens patriae standing. A state’s interest

in “preventing harm to its citizens by antitrust violations is, indeed, a prime instance

of the interest that the parens patriae can vindicate by obtaining . . . an injunction.”

In re Ins. Antitrust Litig., 938 F.2d 919, 927 (9th Cir. 1991). That interest includes

“ensuring that their citizens are not denied the benefit of lower-priced [products] that

would result from the market participants’ adherence to [] fair marketplace

regulations and ensuring . . . that those who sell [products] to their citizens abide by

the federal antitrust system.” In re Generic Pharms. Pricing Antitrust Litig., 605 F.

Supp. 3d 672, 680 (E.D. Penn. 2022); see also Alfred L. Snapp & Son, Inc. v. P.R.,

458 U.S. 592, 608 (1982). Such an interest exists here: the States seek to enjoin

Apple’s anticompetitive conduct that entrenches its monopoly over, and drives up

prices within, U.S. smartphone markets. The Complaint alleges myriad facts

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showing that Apple’s conduct affects the States’ general economies and substantial

segments of their residents who use smartphones, FAC ¶¶ 198, 201, 207, 213, 226,

230, 234, including charging higher prices and making it hard to switch away from,

or use other technologies with, the iPhone, FAC ¶¶ 5, 183, 185, 188-189, 192-193,

195, 226, 230, 234. The Complaint also alleges that Apple’s anticompetitive conduct

affects substantial segments of the States’ residents because the iPhone’s user-base

totals “more than 250 million devices in the United States” and Apple’s market share

is now “over 70 percent,” and growing. FAC ¶¶ 39, 180-181.

Second, Apple incorrectly argues that the States lack parens patriae standing

unless their ability to enforce state law is impaired. Mot. 32 n.6. Federal law

authorizes states to enforce federal antitrust law. 15 U.S.C. § 26; Cal. v. Am. Stores

Co., 495 U.S. 271, 284 (1990). Harrison v. Jefferson Parish, 78 F.4th 765, 769, 771

(5th Cir. 2023), is inapposite because it involved a State suit in federal court “to

enforce state law against a subordinate.” Apple is not a state subordinate.

CONCLUSION

For the reasons set forth above, the Court should deny the motion to dismiss.

Dated: September 12, 2024

Respectfully submitted,

s/ Jonathan Lasken
By: JONATHAN LASKEN*
Assistant Chief, Civil Conduct Task
Force
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PHILIP R. SELLINGER s/ Jennifer Hane

United States Attorney JENNIFER HANE
SEAN CARMAN
s/ J. Andrew Ruymann PAM COLE
By: J. ANDREW RUYMANN* JAMES ROBERT DUNCAN III
Assistant United States Attorney ASHLEY D. KAPLAN
U.S. Attorney’s Office JEREMY C. KEENEY
402 East State Street, Room 430 ANDREW L. KLINE
Trenton, NJ 08608 PATRICK M. KUHLMANN
Telephone: 609-989-0563 JACK G. LERNER
Email: [Link]@[Link] MATTHEW C. MANDELBERG
NOLAN J. MAYTHER
*Attorneys of Record MICHAEL MIKAWA
SARAH OLDFIELD
SADEV S. PARIKH
MICHAEL A. RABKIN
AARON M. SHEANIN
MICAH D. STEIN
JESSICA JOHNSTON TATICCHI
LORRAINE VAN KIRK
Trial Attorneys

United States Department of Justice

Antitrust Division
450 Fifth Street NW, Suite 8600
Washington, DC 20530
Telephone: 202-598-6517
Email: [Link]@[Link]

Attorneys for the United States

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FOR PLAINTIFF STATE OF NEW JERSEY:

MATTHEW J. PLATKIN
Attorney General of New Jersey

By: /s/ Isabella R. Pitt

Isabella R. Pitt (NJ Bar No. 071002013)
Deputy Attorney General
Assistant Section Chief of Antitrust
Brian F. McDonough, Assistant Attorney General
Andrew F. Esoldi, Deputy Attorney General
Meghan Musso, Deputy Attorney General
Giancarlo G. Piccinini, Deputy Attorney General
Leslie Prentice, Deputy Attorney General
Lauren E. VanDriesen, Deputy Attorney General
New Jersey Office of the Attorney General
124 Halsey Street, 5th Floor
Newark, NJ 07101
Tel: 973-648-3070
[Link]@[Link]

Attorneys for Plaintiff State of New Jersey

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FOR PLAINTIFF STATE OF ARIZONA:

KRISTIN K. MAYES
Attorney General of Arizona

By: /s/ Vinny Venkat

VINNY VENKAT
Assistant Attorney General
Consumer Protection & Advocacy Section
2005 N. Central Avenue
Phoenix, AZ 85004
Telephone: 602-542-7757
Email: [Link]@[Link]

Attorney for Plaintiff State of Arizona

FOR PLAINTIFF STATE OF CALIFORNIA:

ROB BONTA
Attorney General of California

By: /s/ Brian Wang

PAULA L. BLIZZARD, Senior Assistant Attorney General for
Antitrust
MICHAEL JORGENSON, Supervising Deputy Attorney General
CARI JEFFRIES, Deputy Attorney General
ROBERT MCNARY, Deputy Attorney General
BRIAN WANG, Deputy Attorney General
Office of the Attorney General
California Department of Justice
455 Golden Gate Avenue
Suite 11000
San Francisco, CA 94102
Phone: 415-510-4400
Email: AppleAntitrustTeam@[Link]

Attorneys for Plaintiff State of California

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FOR PLAINTIFF STATE OF CONNECTICUT:

WILLIAM TONG
Attorney General of Connecticut

By: /s/ Nicole Demers

NICOLE DEMERS
Deputy Associate Attorney General
Office of the Attorney General of Connecticut
165 Capitol Avenue
Hartford, CT 06106
Telephone: 860-808-5030
Email: [Link]@[Link]

By: /s/ Rahul A. Darwar

RAHUL A. DARWAR
Assistant Attorney General
Office of the Attorney General of Connecticut
165 Capitol Avenue
Hartford, CT 06106
Telephone: 860-808-5030
Email: [Link]@[Link]

Attorneys for Plaintiff State of Connecticut

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FOR PLAINTIFF STATE THE DISTRICT OF

COLUMBIA:

BRIAN L. SCHWALB
ATTORNEY GENERAL

JENNIFER C. JONES
Deputy Attorney General
Public Advocacy Division

BETH MELLEN
WILLIAM F. STEPHENS
Assistant Deputy Attorneys General
Public Advocacy Division

By: /s/ Elizabeth G. Arthur

ADAM GITLIN
Chief, Antitrust and Nonprofit Enforcement Section
Public Advocacy Division
ELIZABETH G. ARTHUR
Assistant Attorney General
Public Advocacy Division
400 6th Street NW, 10th Floor
Washington, D.C. 20001
Tel.: 202-442-9864
Email: [Link]@[Link]

Attorneys for Plaintiff State the District of Columbia

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811

FOR PLAINTIFF STATE OF INDIANA:

THEODORE E. ROKITA
Attorney General of Indiana

By: /s/ Matthew Michaloski

MATTHEW MICHALOSKI
Deputy Attorney General
SCOTT L. BARNHART
Chief Counsel and Director, Consumer Protection Division
JESSE MOORE
Deputy Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, Indiana 46204
[Link]@[Link]
[Link]@[Link]
[Link]@[Link]

Attorneys for Plaintiff State of Indiana

FOR PLAINTIFF STATE OF MAINE:

AARON M. FREY
Attorney General of Maine

By: /s/ Christina M. Moylan

CHRISTINA M. MOYLAN
Assistant Attorney General
MICHAEL DEVINE
Assistant Attorney General
Consumer Protection Division
Office of the Maine Attorney General
6 State House Station
Augusta, ME 04333-0006
Telephone: 207-626-8800
Email: [Link]@[Link]
[Link]@[Link]

Attorneys for Plaintiff State of Maine

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FOR PLAINTIFF COMMONWEALTH OF

MASSACHUSETTS:

ANDREA JOY CAMPBELL

Attorney General

By: /s/ William T. Matlack

WILLIAM T. MATLACK
Assistant Attorney General
Chief, Antitrust Division
Tel: (617) 963-2414
Email: [Link]@[Link]
KATHERINE W. KREMS
Assistant Attorney General, Antitrust Division
Tel: (617) 963-2189
Email: [Link]@[Link]
DAVID MLAVER
Assistant Attorney General, Antitrust Division
Tel: (617) 963-2613
Email: [Link]@[Link]
Office of the Massachusetts Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108

Attorneys for Plaintiff Commonwealth of Massachusetts

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FOR PLAINTIFF STATE OF MICHIGAN:

DANA NESSEL
Attorney General of Michigan

By: /s/ Jason R. Evans

JASON R. EVANS
Division Chief
Corporate Oversight Division
EvansJ@[Link]

By: /s/ Scott A. Mertens

SCOTT A. MERTENS
Section Head
Corporate Oversight Division
MertensS@[Link]

By: /s/ Jonathan S. Comish

JONATHAN S. COMISH
Assistant Attorney General
Corporate Oversight Division
ComishJ@[Link]

By: /s/ LeAnn D. Scott

LEANN D. SCOTT
Assistant Attorney General
Corporate Oversight Division
ScottL21@[Link]

Michigan Department of Attorney General

525 W Ottawa St.
Lansing, MI 48933
Telephone: 517-335-7622

Attorneys for Plaintiff People of the State of Michigan

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FOR PLAINTIFF STATE OF MINNESOTA:

KEITH ELLISON
Attorney General of Minnesota

JESSICA WHITNEY
Deputy Attorney General

JAMES W. CANADAY
Deputy Attorney General

By: /s/ Justin Moor

JUSTIN MOOR
Assistant Attorney General
Atty. Reg. No. 0397596

ELIZABETH R. ODETTE
Manager, Antitrust Division
Atty. Reg. No.0340698

ERIN E. CONTI
Assistant Attorney General
Atty. Reg. No. 0395304
445 Minnesota Street, Suite 1400
Saint Paul, MN 55101-2130
Telephone: 651-724-9627
Telephone: 651-728-7208
Telephone: 651-757-1287
[Link]@[Link]
[Link]@[Link]
[Link]@[Link]

Attorneys for Plaintiff State of Minnesota

49
Case 2:24-cv-04055-JXN-LDW Document 106 Filed 09/12/24 Page 56 of 62 PageID:
815

FOR PLAINTIFF STATE OF NEVADA:

AARON D. FORD
Attorney General of Nevada

By: /s/ Raquel Fulghum

Raquel Fulghum
Deputy Attorney General
Samantha Feeley
Deputy Attorney General
State of Nevada,
Office of the Attorney General
100 North Carson Street
Carson City, Nevada 89701-4717
Telephone: 775-684-1100
Email: rfulghum@[Link]

Attorneys for Plaintiff State of Nevada

FOR PLAINTIFF STATE OF NEW HAMPSHIRE:

By its attorney,

JOHN M. FORMELLA
Attorney General

By: /s/ Alexandra C. Sosnowki

ALEXANDRA C. SOSNOWSKI
Assistant Attorney General
Consumer Protection and Antitrust Bureau
New Hampshire Department of Justice
Office of the Attorney General
One Granite Place South
Concord, NH 03301
Telephone: 603-271-2678
Email: [Link]@[Link]

Attorney for Plaintiff State of New Hampshire

50
Case 2:24-cv-04055-JXN-LDW Document 106 Filed 09/12/24 Page 57 of 62 PageID:
816

FOR PLAINTIFF STATE OF NEW YORK:

LETITIA JAMES
Attorney General of New York

Christopher D’Angelo
Chief Deputy Attorney General
Economic Justice Division

By: /s/ Elinor R. Hoffman

Elinor R. Hoffman
Chief, Antitrust Bureau

By: /s/ Amy McFarlane

Amy McFarlane
Deputy Chief, Antitrust Bureau

By: /s/ Bryan Bloom

Bryan Bloom
Senior Enforcement Counsel
Antitrust Bureau

New York State Office of the Attorney General

28 Liberty Street
New York, NY 10005
Telephone: 212-416-8598
Email: [Link]@[Link]

Attorneys for Plaintiff State of New York

51
Case 2:24-cv-04055-JXN-LDW Document 106 Filed 09/12/24 Page 58 of 62 PageID:
817

FOR PLAINTIFF STATE OF NORTH DAKOTA:

DREW H. WRIGLEY
Attorney General
State of North Dakota

By: /s/ Elin S. Alm

Elin S. Alm
Assistant Attorney General
Christopher G. Lindblad
Assistant Attorney General

Consumer Protection and Antitrust Division

Office of Attorney General
1720 Burlington Drive, Suite C
Bismarck, ND 58504-7736
Telephone: 701-328-5570
ealm@[Link]
clindblad@[Link]

Attorney for Plaintiff State of North Dakota

FOR PLAINTIFF STATE OF OKLAHOMA:

GENTNER DRUMMOND
Attorney General of Oklahoma

By: /s/ Robert J. Carlson

ROBERT J. CARLSON
pro hac vice application forthcoming
Senior Assistant Attorney General
Office of the Oklahoma Attorney General
15 West 6th Street, Suite 1000
Tulsa, OK 74119
Telephone: 918-581-2885
Email: [Link]@[Link]

Attorney for Plaintiff State of Oklahoma

52
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818

FOR PLAINTIFF STATE OF OREGON:

ELLEN F. ROSENBLUM
Attorney General of Oregon

By: /s/ Timothy D. Smith

TIMOTHY D. SMITH
Senior Assistant Attorney General
Antitrust and False Claims Unit
Oregon Department of Justice
100 SW Market Street
Portland, OR 9720 l
Telephone: 503-934-4400
Email: [Link]@[Link]

Attorney for Plaintiff State of Oregon

53
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819

FOR PLAINTIFF STATE OF TENNESSEE:

JONATHAN SKRMETTI
Attorney General and Reporter

By: /s/ J. David McDowell

J. DAVID MCDOWELL
Deputy, Consumer Protection Division
S. ETHAN BOWERS
Senior Assistant Attorney General
AUSTIN C. OSTIGUY
HAMILTON M. MILLWEE
Assistant Attorneys General

Office of the Attorney General and Reporter

P.O Box 20207
Nashville, TN 37202
Telephone: 615-741-8722
Email: [Link]@[Link]
[Link]@[Link]
[Link]@[Link]
[Link]@[Link]

Attorneys for Plaintiff State of Tennessee

FOR PLAINTIFF STATE OF VERMONT:

CHARITY R. CLARK
Attorney General of Vermont

By: /s/ Jill S. Abrams

JILL S. ABRAMS
Assistant Attorney General
109 State Street
Montpelier, Vermont
Telephone: 802-828-1106
Email: [Link]@[Link]

Attorney for Plaintiff State of Vermont

54
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820

FOR PLAINTIFF STATE OF WASHINGTON:

ROBERT W. FERGUSON
Attorney General of Washington

By: /s/ Luminita Nodit

LUMINITA NODIT
Assistant Attorney General
Antitrust Division
Washington Attorney’s General Office
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
Telephone: 206-254-0568
Email: [Link]@[Link]

Attorney for Plaintiff State of Washington

FOR PLAINTIFF STATE OF WISCONSIN:

JOSHUA L. KAUL
Attorney General of Wisconsin

By: /s/ Laura E. McFarlane

LAURA E. MCFARLANE
Assistant Attorney General
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-8911
(608) 294-2907 (Fax)
mcfarlanele@[Link]

Attorney for Plaintiff State of Wisconsin

55
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821

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA et

al.,

Plaintiff, Case No. 2:24-cv-04055-JXN-LDW

v.

APPLE INC.
Defendants.

CERTIFICATE OF SERVICE

I hereby certify that the above brief and this Certificate of Service were

served upon defendant’s counsel, Liza M. Walsh, Esq., Craig S. Primis, Esq.,

Devora W. Allen, Esq., and K. Winn Allen, Esq. 1301 Pennsylvania Avenue, NW,

Washington, D.C., 20004, by CM/ECF on September 12, 2024.

BY: s/ Jonathan Lasken

JONATHAN LASKEN
Assistant Chief
Civil Conduct Task Force
United States Department of Justice
Antitrust Division
Attorney for Plaintiff United States