A worthwhile discussion of Kavanaugh and Gorsuch’s differing approaches here: Antitrust standing and Kavanaugh-versus-Gorsuch textualism
Now Apple, Inc. v. Pepper presents a particular twist on the Illinois Brick facts. In [Illinois Brick], there was a clear vertical hierarchy. The A firms sold to the B firms, which in turn sold to you. You had no contact with the A firms : you neither bought from them directly nor paid their allegedly inflated prices.
But what if the firms had a less clear-cut vertical relationship? In Apple, it was apps being sold through Apple’s App Store. When you buy an app, the price is set by the app developer. But you pay the price to Apple directly; Apple passes the money on to the app developers, retaining a 30% commission. The claim was that Apple was improperly using its monopoly power, which made the 30% commission too high. So this disaggregates two aspects of Illinois Brick:
- Who buys directly from Apple? You do.
- Who directly pays the alleged inflated fees? The app developers do. (You may indirectly pay more for the apps, but that depends on the extent to which the app developers can pass on the higher commissions.)
If you think the Illinois Brick rule was “Direct purchasers from the alleged violator may sue,” then you’ll probably think the end consumers can sue. That’s the Kavanaugh majority. But if you think the Illinois Brick rule was “Those who directly pay the alleged inflated prices may sue,” then you’ll probably think standing is reserved for the app developers, not the end consumers. That’s the Gorsuch dissent.
