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Constantine Cannon Files Amicus Briefs in Two Appellate Cases that Could Redraw the Boundaries of Antirust Enforcement

Posted  February 2, 2022

In keeping with its tradition of playing a leading role in major antitrust cases, Constantine Cannon filed amicus briefs in two important cases last week that wrestle with the scope of the antitrust laws and enforcement.

Both of the Constantine Cannon briefs—in two of most watched antitrust cases currently being litigated—ask a U.S. Court of Appeals to reverse a district court for taking too restrictive a view of the antitrust laws.

The Amicus Brief in Epic Games v. Apple

First, on January 27, 2022, Constantine Cannon and in-house counsel for the Electronic Frontier Foundation (“EFF”), filed an amicus brief on behalf of EFF in the Ninth Circuit Court of Appeals in Epic Games, Inc. v. Apple Inc.

EFF, along with several other amici, submitted briefs in support of Epic Games’ appeal of the district court’s decision.  EFF’s brief focuses on the lower court’s failure to recognize aftermarkets for app distribution and in-app payments, as well as flaws in Apple’s claimed security and privacy justifications for its restrictions.

The Amicus Brief in State of New York v. Facebook

Second, on January 28, 2022, Constantine Cannon submitted an amicus brief to the Court of Appeals for the D.C. Circuit in State of New York v. Facebook, Inc. The amici curiae represented on the brief are 39 former state antitrust enforcers and antitrust professors from leading law schools across the country.  The group is led by Lloyd Constantine, founding partner of Constantine Cannon, and Harry First, law professor at New York University School of Law and Co-Director of its Competition, Innovation, and Information Law Program.  Constantine and First served as chief antitrust enforcers in the New York State Office of the Attorney General from 1980-1991 and 1999-2001, respectively.  Amici also include three former state Attorneys General with antitrust bona fides, Robert Abrams (New York), Charles G. Brown (West Virginia), and James Tierney (Maine), as well as former FTC commissioner Pamela Jones Harbour.

The amicus brief in the Facebook case supports the Plaintiff States (46 states, the District of Columbia, and the Territory of Guam) that have appealed the district court’s dismissal of their case.  The district court found that the Plaintiff States’ claims were barred by the doctrine of laches.  As the brief explains, however, the court’s equating states as the equivalent of private persons for purposes of antitrust enforcement is fundamentally flawed.

The states, as sovereigns, have played a key public enforcement role in protecting their citizens against anticompetitive conduct.  The legislative history of the Sherman Act demonstrates that Congress recognized this fact and intended the Act to supplement, not supplant, state antitrust enforcement.  The Constantine Cannon brief shows how antitrust enforcement benefits from multiple public enforcers, including both federal and state governments.  The brief argues that in applying the doctrine of laches, the district court overlooked important differences between ordinary persons pursuing antitrust claims and states pursuing rights as sovereigns in the public interest.  By disregarding the political and legal precedent favoring states as co-equal antitrust enforcers in the federal system, the district court wrongly denied the Plaintiff States their historic role as vindicators of public rights.

Consequently, the amici urge the appellate court to reverse the district court’s ruling that the doctrine of laches bars the claims of the Plaintiff States.


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