In this antitrust case, Epic Games sued Apple under the Sherman Antitrust Act, alleging among other things that the contract that Apple requires app developers to sign unreasonably restrains trade. Although the district court found that the contract included provisions with anti-competitive effects, the court rejected Epic Games’ claim, holding that a contract of adhesion—that is, a contract where one party sets the terms and the other has little or no ability to negotiate–cannot form the basis for a claim under section 1 of the Sherman Act. Such a contract, the court decided, fails to establish the concerted action needed for a “contract, combination…, or conspiracy” under the Act. Epic Games appealed.
In the Ninth Circuit, Public Citizen filed an amicus brief in support of Epic Games. The brief explains that a contract of adhesion can satisfy the concerted-action requirement of section 1 under the plain text of the Sherman Act, as well as Supreme Court and Ninth Circuit case law.