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Law360 (March 12, 2021, 8:56 PM EST ) Antitrust allegations that Apple used trumped-up excuses to keep coronavirus tracking applications out of the App Store to prevent competition with its own COVID-19 tracker belong in California, not New Hampshire where they were filed, according to the tech giant.
In a motion Thursday to transfer venue, Apple said that Coronavirus Reporter's $800 million lawsuit has nothing to anchor the allegations to the District of New Hampshire and nothing to stop "the mandatory forum-selection clause" in a developer program license agreement, or DPLA, from placing the claims where they belong in the Northern District of California.
Even without the forum selection clause, Apple said the case still belongs in the Cupertino, California, company's home district.
"Virtually all operative events occurred there; the vast majority of likely witnesses live and work there; all relevant documents are located there; and Apple resides there. In stark contrast, the District of New Hampshire lacks any nexus to plaintiff's allegations," Apple said.
"No parties reside in New Hampshire; not a single alleged event occurred in this state; and plaintiff has not pled that any likely witnesses reside in New Hampshire. The presumption in favor of a plaintiff's chosen forum falls away when the plaintiff — here, a Wyoming corporation — is not a resident of that forum," it continued.
Coronavirus Reporter first filed suit in January, arguing there was "no good reason" for Apple to block its app from being made available in the App Store in March 2020, just as the virus was beginning its deadly march across the country — except that Apple knew it had its own application in the pipeline.
The rejection, according to the suit, was couched in Apple's decision to permit coronavirus-related applications from only "recognized institutions such as government, hospital, insurance company, NGO, or a university." In response to a Coronavirus Reporter petition, Apple purportedly agreed to also accept "deeply credentialed" health care companies but was unpersuaded by the fact that the plaintiff had hired as its chief medical officer Robert Roberts, inventor of "the gold-standard test" for detecting heart attacks and head NASA cardiologist during the space race.
The suit accuses Apple of illegal monopolization based on the premise that because so many people rely on Apple's iOS operating system, the tech behemoth holds a "de facto monopoly" on accessing the internet. Coronavirus Reporter has also recently added claims for breach of contract and breach of Apple's obligation to deal in good faith.
The price tag, added in the amended complaint filed earlier this month, includes "damages in excess of two hundred million dollars, based on comparable analysis of similar coronavirus information media distribution channels," as well as triple damages under antitrust law "amounting to six hundred million dollars." Coronavirus Reporter also wants a permanent injunction that would bar Apple from blocking internet access for "reasonable applications."
Representatives for the parties did not immediately respond to requests for comment.
Coronavirus Reporter's complaints appear to have anticipated a forum fight, arguing that Apple does business in New Hampshire, that some of the plaintiff's officers reside in the state and didn't waive venue in the developer agreement, and that the venue waiver itself "is a monopolistic contract that is forced upon any developer who wishes to make applications that access the national internet backbone."
That makes the clause a Sherman Act violation, according to Coronavirus Reporter, which argued that Apple would also "have an unfair advantage if all antitrust actions had to be litigated in the Northern California district, where Apple employs tens of thousands of individuals."
Apple railed against those assertions Thursday, arguing that mandatory forum selection clauses can only be set aside if they were "procured by fraud" or are "unconscionable."
"No such allegations have been — or could be — made here; courts routinely enforce such clauses within standard terms of service and terms of use," Apple said.
It also doesn't matter that some Coronavirus Reporter officers didn't personally waive the right to bring any suit in New Hampshire, according to Apple, since "well-settled principle" binds nonsignatories to a forum selection clause if they're "closely related to the contractual dispute."
Coronavirus Reporter also has it "backwards" in asserting that Apple would have an unfair advantage in California, according to the brief, which argued that California is home to most of the evidence and witnesses.
Coronavirus Reporter is represented by Keith Mathews of the Associated Attorneys of New England.
Apple is represented by Jessica E. Phillips and Martha Goodman of Paul Weiss Rifkind Wharton & Garrison LLP and Kevin M. O'Shea and Allyson L. Moore of Sulloway & Hollis PLLC.
The case is Coronavirus Reporter v. Apple Inc., case number 1:21-cv-00047, in the U.S. District Court for the District of New Hampshire.
--Additional reporting by Nadia Dreid. Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
