A federal judge said Apple engaged in anti-competitive conduct without violating federal antitrust laws in Epic v. Apple (see 2010090015). Judge Yvonne Gonzalez Rogers ruled Friday Apple can’t block developers from directing users away from Apple in-app purchases. “While this decision includes some relief for consumers, app developers, startups, and other innovators, it is clear that courts continue to narrowly interpret the antitrust laws in favor of monopolies and against consumers, workers, and small businesses,” wrote Reps. Jerry Nadler, D-N.Y., and David Cicilline, D-R.I. “This ruling reaffirms what we heard in our Senate hearing last spring: app stores raise serious competition concerns,” said Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn. The ruling increases the likelihood of related legislation passing Congress, Cowen emailed investors. Apple may seek “a quick injunction against the enforcement” of Gonzalez Rogers’ “revisions to the App Store,” wrote analyst Paul Gallant. The company “has decent shot at near-term injunction,” if it seeks one, with a ruling on that in “perhaps 1-2 months,” he added. The judge "affirmed what we’ve known all along: the App Store is not in violation of antitrust law," an Apple spokesperson emailed. "As the Court recognized ‘success is not illegal.’ Apple faces rigorous competition in every segment in which we do business." The company didn't answer our question about plans for an injunction request.

Friday is the one-year anniversary of the first-filed Section 301 complaint alleging the Lists 3 and 4A tariffs on Chinese goods are unlawful under the 1974 Trade Act and violate the 1946 Administrative Procedure Act protections against sloppy agency rulemakings (see 2009110041). Virtually all the roughly 3,800 cases from 6,500 or more importers that have since inundated the U.S. Court of International Trade seek to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded with interest. The court’s order Wednesday vacating components of its July 6 preliminary injunction order instructed the government to liquidate customs entries from China with Lists 3 and 4A tariff exposure “in the ordinary course” and refund the money with interest if the tariffs are declared unlawful, once the litigation becomes “final and conclusive” (see 2109080061). The order also frees the litigation to return to arguments on the merits after a prolonged battle over many months over refund relief. Oct. 1 is the deadline for DOJ to file papers supporting its June 1 dispositive motion and response to the plaintiffs’ Aug. 2 cross-motion. Nov. 15, the last date listed on the court’s April 13 briefing schedule (in Pacer), is when the plaintiffs file their reply.

The U.S. Court of International Trade vacated the repository requirement imposed in its July 6 preliminary injunction (PI) order for importers to request suspending the liquidation of customs entries from China with Section 301 Lists 3 or 4A tariff exposure, said an order (in Pacer) signed Wednesday by Judges Claire Kelly and Jennifer Choe-Groves. The government will liquidate those entries “in the ordinary course” and refund the money with interest if the tariffs are declared unlawful, “should that decision become final and conclusive, including all appeals,” it said. The court also vacated the PI order’s temporary restraining order period when no entries could have liquidated, with or without the repository. Customs and Border Protection was to have activated the repository on Friday, and the TRO period was to have expired Oct. 2. The order is without prejudice on the issue of whether refunds will be limited to plaintiffs in the Section 301 cases that are the importers of record who actually paid the Lists 3 and List 4A duties, said the judges. DOJ said in a Sept. 3 joint status report (in Pacer) it would be impossible to refund any tariffs to anyone other than an importer of record that paid the money. Plaintiffs argued that the vast majority of the Section 301 cases were filed by importers of record, but that a few involved in some of the stayed cases don’t fit that description.

Apple is seeking the dismissal of a May 17 complaint asking class-action status that alleged the iPhone maker harms developers through anti-competitive behavior and monopolistic practices in running the App Store in violation of the 1890 Sherman Antitrust Act, said a motion (in Pacer) Thursday in U.S. District Court in San Francisco. Plaintiff Primary Productions was “unhappy that a cryptocurrency app it had some role in developing was allegedly rejected from the App Store,” and alleges a series of “sweeping” antitrust and contract claims against Apple, said the motion. “But Apple has no obligation, under the antitrust laws or otherwise, to approve and distribute on its own platform apps that it has determined are inconsistent with Apple’s Guidelines.” It called the claims “meritless,” saying the plaintiff “has plausibly pleaded neither relevant antitrust markets nor cognizable antitrust injuries” to support its allegations. Apple asked for an Oct. 14 hearing before Judge Jacqueline Scott Corley. Lawyers for the plaintiff didn’t respond Friday to requests for comment.

Language disagreements remain between the Section 301 plaintiffs and the government in proposing modifications to the July 6 preliminary injunction (PI) order at the U.S. Court of International Trade that would eliminate the need for a Customs and Border Protection repository for customs entries from China with Lists 3 and 4A tariff exposure, said the two sides in a joint status report (in Pacer) Friday. It was the last date proposed modifications in the PI order were due. DOJ wants the order worded to say that refunds of liquidated entries would be available only to importers of record who paid the tariffs, if plaintiffs prevail on the merits at the end of the litigation, it said. It makes “no sense” for plaintiffs to oppose the language, as the plaintiffs said they do, because “only importers of record who are plaintiffs could possibly seek reliquidation and, if approved by the courts, be directly affected by any reliquidation,” said the government. Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products responded that while the “vast majority” of the Section 301 cases involve importers of record, some of the stayed cases involve plaintiffs that don’t fit that description. The issue hasn't been raised in recent status conferences and filings, and modifying the PI order is not the “proper vehicle” for resolving it, they said. Plaintiffs “stand ready” to continue working with the government on “streamlining the process for implementing the refund remedy in preparation for the end of this litigation” if the plaintiffs win, said the Akin Gump attorneys. But DOJ took a different tone. “In our view, plaintiffs are unlikely to succeed on the merits of the Section 301 cases, and no such resource-intensive task will be necessary” at the end of the trial to properly dole out tariff refunds, it said. “In light of the extensive resources we have already dedicated to compliance with the preliminary injunction, unless ordered by the Court, we have no reason to continue working on a reliquidation or refund process unless and until the plaintiffs prevail on the merits.” Akin Gump's lawyers, on the other hand, said they defer to the court “on the proper schedule for such efforts.”

"Zero tariff" mobile data packages violate open internet access rules, the European Court of Justice ruled Thursday. EU law also outlaws limitations on bandwidth, tethering or on use when roaming when using such a package, ECJ said. It defined zero tariff options as commercial practices in which access providers apply either no charge or an advantageous one to data traffic associated with an application or category of specific apps offered by their partners. The data isn't counted toward the data volume purchased, making offers more attractive to users. The case arose from a Vodafone offering that German telecom regulator Bundesnetzagentur found breached the EU roaming regulation and barred the operator from using. Vodafone appealed. The high court found that a zero tariff option such as the one at issue "draws a distinction within internet traffic, on the basis of commercial considerations, by not counting towards the basic package traffic to partner applications," in breach of the roaming regulation.

The U.S. Court of International Trade extended by a week to Sept. 10 Friday's deadline for Customs and Border Protection to activate the repository imposed in the July 6 preliminary injunction order for importers to suspend the liquidation of customs entries from China with Section 301 Lists 3 and 4A tariff exposure. Chief Judge Mark Barnett proposed the delay at Wednesday’s status conference after plaintiffs and the government appeared close to an agreement on a refund stipulation plan that would make the repository unnecessary (see 2109010050). Activating the repository anyway Friday in light of the pending agreement would be “an exercise in futility,” Barnett told the court.

The Locast streaming service infringes on broadcasters’ copyright, ruled U.S. District Court in Manhattan Judge Louis Stanton Tuesday in an opinion and order granting summary judgment to plaintiffs that include Fox, CBS, Disney and NBCUniversal (docket 19-cv-7136, in Pacer). The payments Locast requests from users are charges rather than gifts, and exceed the amount needed to maintain and operate the service, ruled Stanton. That keeps Locast from falling under a statutory exemption from copyright rules for nonprofits, the opinion said. “It is of no consequence that a number of users employ the service without paying.” Locast operator Sports Fan Coalition “solicits, and receives, substantial amounts in charges from recipients for its uninterrupted service,” Stanton wrote. Locast had argued that it falls under the exemption because it uses excess funds only to expand the service, but Stanton said Congress could have included the word “expansion” in the statute if that was part of the law’s intent. The Electronic Frontier Foundation, which represented Locast, disagreed. “This ruling that nonprofit retransmitters can’t use viewer contributions to expand access will do the opposite of what Congress intended,” EFF emailed Locast users. “Our client is in the process of evaluating the decision and formulating next steps,” said Locast attorney David Hosp, of Orrick Herrington.

A district court paused proceedings on Florida’s social media law until the 11th U.S. Circuit Court of Appeals rules on the state's appeal of a preliminary injunction. Plaintiffs NetChoice and the Computer & Communications Industry Association sought the stay, but Florida disagreed (see 2108190021). The appeals court’s “decision on the pending appeal will almost surely provide substantial guidance for, if it does not dictate the outcome of, further litigation in this court,” wrote Judge Robert Hinkle in an Aug. 25 ruling in case 4:21-cv-00220-RH-MAF.

An app developer’s May 17 complaint alleging Apple violations of the 1890 Sherman Antitrust Act by monopolizing the distribution of apps through the App Store was assigned Monday to U.S. District Judge Saundra Brown Armstrong in Oakland, the third judge to handle the case after the first two recused themselves. Thomas Reilly said he spent $150,000 developing Konverti, a currency exchange app for the remaining petty cash travelers have when returning home from foreign destinations. Konverti was approved and placed in the App Store in June 2017 “and abruptly removed weeks later without clear cause given,” said Reilly’s complaint. “Apple’s anti-competitive conduct forecloses all potential competitors from entering” the app distribution market, facing “no constraints” on its monopoly power, it said. Apple didn’t comment Monday.