During its Oct. 6 conference, the Supreme Court called for the views of the solicitor general in Apple Inc. v. Pepper, signaling potential interest. Since the 1977 Illinois Brick decision, the Supreme Court has held that only direct purchasers who are the immediate victims of anti-competitive conduct can seek antitrust damages, a doctrine complicated by the role of Apple as a marketplace sponsor for apps in the App Store.

Breaking with a decision by the U.S. Court of Appeals for the 8th Circuit in a similar case, the 9th Circuit reversed the lower court’s decision and held that Apple was a direct distributor of iPhone apps to its purchasers, not merely in “the chain of manufacture or distribution.” It therefore held that plaintiff Robert Pepper had standing to sue Apple over its 30 percent commission fee and alleged attempt to monopolize the market for apps. Apple petitioned for a writ of certiorari in August, but the Supreme Court is awaiting the solicitor general’s brief expressing the views of the United States.