Amicus Brief: SaurikIT, LLC v. Apple, Inc.
COSAL’s Amicus Committee filed its first brief of the year in SaurikIT, LLC v. Apple, Inc. The brief was filed in support of Petitioner-Appellant SaurikIT’s Petition for Rehearing and Rehearing En Banc of the Ninth Circuit’s order affirming dismissal of SaurikIT’s complaint against Apple based on a statute of limitations defense. SaurikIT owned an app store that competed with Apple’s App Store and was driven from the market in 2020 as a result of Apple’s exclusionary and tying conduct. Though SaurikIT alleged that Apple foreclosed competition through its consumer warranties and developer agreements, which it imposed at the time the complaint was filed and continues to impose today, the district held that the imposition and enforcement of these agreements did not constitute overt acts sufficient to restart the statute of limitations under the continued violation doctrine because Apple had begun imposing such agreements and warranties in 2008 and 2009. The Ninth Circuit Panel upheld the district court’s order and held that SaurikIT had failed to allege how Apple’s consumer warranties changed during the limitations period and that, though SaurikIT had alleged that Apple’s developer agreements changed, those allegations were too conclusory to meet Twombly/Iqbal pleading standards.
COSAL’s brief argued that: 1) The Panel had changed decades of Ninth Circuit jurisprudence holding that enforcement and imposition of anticompetitive contracts during the limitations period constitutes overt acts sufficient to restart the statute of limitations; 2) such a change in the law would immunize cartelists and monopolists who had gotten away with anticompetitive conduct for four years from ever being sued for that conduct, even if it continued for decades; and 3) the Panel’s change in pleading standards, requiring pleadings to resolve factual disputes surrounding affirmative defenses, would cause confusion among courts and litigants and bar meritorious claims or force litigants to file before they were ready.
The primary drafters were Amicus Committee Chair Vicky Sims and Co-Chair Nathaniel Regenold, with assistance from Co-Chair David Cialkowski.
