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Law360 (May 11, 2021, 10:09 PM EDT ) Apple urged a New Hampshire federal court to dismiss a retooled complaint from the developer of a coronavirus-tracking app accusing the technology giant of violating antitrust law by keeping the app from its store, saying it did not seek the court's permission for five new plaintiffs to file anonymously.
In a 26-page filing made public Tuesday, Apple argued that Coronavirus Reporter's revised $800 million lawsuit repeated the same allegations made in the original complaint filed in January, that the developer erroneously added five unnamed apps purporting to be plaintiffs, and copied and pasted claims from at least three other pending antitrust cases against the company in the Northern District of California.
Claiming anonymity without first seeking permission from the district court plainly violates the Federal Rules of Civil Procedure and warrants dismissal, and "cobbling together allegations from other actions to attempt to state a claim does not save" Coronavirus Reporter's second amended complaint, Apple wrote.
The filing added that the case should be either dismissed or at the very least transferred to the Northern District, where Coronavirus Reporter concedes "redundant" litigation is pending.
The company further argued that the case can be dismissed under the so-called first-to-file rule because this litigation involves similar parties and issues as a previously filed action in another federal district court. Under this rule, in the class action context, courts assess party similarity by the classes, not the plaintiffs, the filing explained.
"Courts test issue similarity by asking whether the plaintiff's case and the class action turn on similar determinations of fact and seek to resolve similar legal issues," it added.
"Coronavirus Reporter and the Unnamed Apps concede there is substantial overlap between the [second amended complaint] and cases pending in the Northern District against Apple. As they stated in their most recent filing, the [amended complaint] 'pleads identical claims, redundantly to those that are currently pending in District Courts around the country,'" according to the filing.
"Because this action is substantially similar to Cameron, Epic, and SaurikIT, all pending in the Northern District, this court should dismiss this action," the filing emphasized.
The lawsuit said there's "no good reason" Apple blocked Coronavirus Reporter's app from the App Store in March 2020, just as the virus was beginning to initially surge in the U.S. — 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."
Apple purportedly found the Coronavirus Reporter app lacked "deeply rooted medical credentials," despite the developer's chief medical officer being Robert Roberts, inventor of "the gold-standard test" for detecting heart attacks and head NASA cardiologist during the space race.
The lawsuit includes a claim for violation of Section 1 of the Sherman Act, which bars unreasonable agreements to restrain trade, but Apple said Tuesday that the allegations are all based around its unilateral conduct — Apple's own, independent actions and not some concerted activity.
In a recent filing, Apple said it had to ensure coronavirus-related apps were reliable and safe at the onset of the pandemic, and that it was not trying to suppress competition by refusing to offer the developer's virus-tracking app in its App Store.
And in Tuesday's motion, Apple said the amended complaint's Sherman Act claims — the prong barring monopolization — again fail because the developer does not explain the market the tech giant is accused of having power over.
"Anticompetitive harm is a pleading requirement for Section 1 and Section 2 claims. Plausible allegations of anticompetitive harm are critical at the pleading stage because antitrust law protects competition, not competitors," the company said. "Coronavirus Reporter has only pleaded a harm to its business — an injury to itself, not an anticompetitive injury to the market. This defect is fundamental, and warrants dismissal of all Section 1 and 2 claims."
Representatives for the parties did not immediately respond to requests for comment Tuesday.
Coronavirus Reporter is represented by Keith Mathews of Associated Attorneys of New England.
Apple is represented by Kevin M. O'Shea and Allyson L. Moore of Sulloway & Hollis PLLC and Jessica E. Phillips and Martha L. Goodman of Paul Weiss Rifkind Wharton & Garrison LLP.
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 Matthew Perlman, Bryan Koenig and Nadia Dreid. Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
