Epic has taken what's presumably the final step in its antitrust legal battle
with Apple over App Store fees, as
The Verge reports Epic has
petitioned the Supreme Court to intervene and have a final say in the
matter. The filing starts with a surprisingly concise summary of the questions
presented:
This case presents two critical questions regarding the legal
standards governing the Rule of Reason, which determines the outcome of nearly
every Sherman Act case. It is well settled that a restraint that has both pro-
and anti- competitive effects is unlawful if a ‘less-restrictive alternative”
will achieve the same benefits while harming competition less. The circuits are
divided, however, on two issues that were outcome-determinative in this case (1)
the legal test for identifying a less-restrictive alternative; and (2) if no
less-restrictive alternative exists, whether the restraint is valid even when
(as in this case) the court finds harms to competition that vastly outweigh the
benefits.
The Questions Presented are:
- Must a less restrictive alternative be free from additional costs to the
defendant?
- If there is no less-restrictive alternative, is the restraint invalid if
the harms to competition substantially outweigh the restraint’s
procompetitive justification?