Apple seeks dismissal of suit over coronavirus tracker app

An attorney representing Apple urged a federal judge Thursday to dismiss a lawsuit over the rejection of a coronavirus-tracking app from the App Store, arguing that developers of the app are improperly pursuing claims alleging violations of antitrust laws.

Defense attorney Rachel S. Brass said app developer Coronavirus Reporter is merely frustrated with Apple's decision not to allow it onto its store. She said, "None of the allegations are cognizable antitrust injuries" because "there hasn't been an injury to competition."

The lawsuit filed by a former head NASA cardiologist accused Apple of rejecting his app to create its own identical app.

The case pursues a new antitrust theory alleging that free apps were illegally denied distribution to iPhone owners and that Apple promotes certain free apps. No antitrust complaint against Apple has sought to include free apps, according to the complaint.

Jeffrey D. Isaacs, representing developers in the class action, argued the central claim in the lawsuit is that Apple stands in the way of the distribution of apps. He said there are "180 million iPhones and Apple controls access."

Bass, a partner at Gibson, Dunn & Crutcher LLP, responded that the argument is "insufficient to allege market power." She emphasized there aren't enough facts or evidence in the complaint to pursue antitrust claims.

"If there are sufficient allegations to imply market power, would that be enough to state a relevant market?" asked U.S. District Judge Edward M. Chen.

"You have to be a competitor in the relevant market," Bass replied. "None of the plaintiffs here are smartphone manufacturers."

Chen agreed with Apple that the company and developers who filed the lawsuit are not competitors in the same market. He questioned whether there's been an "injury to general competition."

Isaacs pushed back on arguments that Apple doesn't compete in the same market as app developers. He noted that Apple has its own coronavirus-tracking app.

The Coronavirus Reporter app was developed to obtain epidemiological data as the pandemic progressed but was denied access to the App Store due to a rule from Apple stating that it would only allow coronavirus apps from recognized institutions, such as governments, hospitals, insurance companies or universities. Creators of the app appealed to no avail after the company determined the creators lacked "deeply rooted medical credentials."

Apple later formed a partnership with a rival app and several universities to create a contact-tracing coronavirus app.

Isaacs also argued that developers are potential competitors to Apple in the distribution of apps, but they're prohibited from competing because the company doesn't allow third-party marketplaces for apps.

"It should be open," he said. "Every other competing platform in history, Android, Mac, Windows, allow competing distribution points."

Bass countered that developers theoretically being able to compete with Apple by creating an alternative point isn't relevant. She emphasized the complaint tries to improperly allege injury to competition when there's only been injuries to developers of specific apps.

Isaacs responded that he needs discovery before he can prove that "the market is bottlenecked." He noted that Apple rejects 40,000 apps per week.

The class action seeks $200 billion in damages and a preliminary injunction that would allow users to download apps outside of the App Store. Coronavirus Reporter v. Apple Inc., CV21-05567 (N.D. Cal., filed July 20, 2021).