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An interview with the lawyer who won against Apple at the Supreme Court



Someone alleges that Microsoft is a monopolist and someone alleges that the market it monopolizes is the market for for games for the XBox console. Like we alleged that apple is a monopolist, and we alleged that the market is the market for iphone applications, and it has to be very specific. And and in in antitrust law, you really need to look at a couple of things you need to look at who the monopolist is. And you need some work at what the market is. But if we're saying that the market is games for XBox console. Souls, then there's still competition because you haven't told me that there's a different market for the digital games versus the the Blu Ray disc games, if there's different markets in other words, you know, what I'm saying are the same games available either digitally or or on Blu Ray. Or are there different games? That are available only only on Blu Ray and not on the digital platform and vice versa only on digital platforms. The only games. Yeah. The the market has to include all reasonable substitute products. So if there's if the market is purely digital, and Microsoft is engaging in some kind of monopoly conduct. Then then yes, if you're forced to buy from Microsoft, and you buy your product from Microsoft, and you pay your money to Microsoft and the market is just those games that Microsoft distributes electronically. Then I think you have standing under the supreme court's decision yesterday. You would have standing to sue Microsoft for that on ledge monopolization. But I'm I don't know nearly enough about the platform or that market to be able to say, whether I think there's a claim or I don't think there's a claim it's just a question of standing and the supreme court said yesterday, it's a simple bright line test. Did the consumer buy directly from the alleged monopolist and pay his or her money directly to the alleged monopolist if the answer to those questions is yes, then that consumer has standing to sue that alleged monopolist? I I can't begin to describe what the claim may be. But at least I can tell you. That's the answer to the standing question. Got it sorry to be so technical. But it's it's a really narrow technical decision that the supreme court reached yesterday. Now, I appreciate it. That's this show is is all about ninety out of the stuff. So it's good. Okay. Good. I actually want to ask you about the decision and the composition of the majority. You had the four liberal justices and cabinet, and he actually split from Gorsuch in particular, who is regarded as an equally deeply conservative judge. How how did you get cavenaugh to to come over to the liberal side of the of the majority there? I'm always having to use the the labels liberal and conservative because I don't think that they apply equally. And every setting and I think this is this is a setting where? Where Justice cavenaugh saw an interpretation of a statute and of the supreme court's forty two years of precedent now under that Illinois brick rule that I told you about four the way we saw it. And I think it's it's the correct way to see it. The court has consistently said we look at the at the structure of the transaction. We look at who buys the monopolized product from whom and and we give standing to the person who deals directly with the alleged monopolist, and and applying the principle the way the court has apply it for forty two years in this case that points to the the consumers who buy the apps from apple on the app store and pay their money to apple through the app store. They have standing, and that's exactly what the five justices on the court said yesterday.

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