Statement by Robert H. Bork Jr. on Apple’s Motion to Dismiss US v. Apple

August 1, 2024

Apple’s motion to dismiss the Department of Justice antitrust case is a total takedown.

When I worked with my father in the 1990s to support the government’s antitrust case against Microsoft, the situation was very different. Microsoft at that time maintained a stranglehold on 95 percent of the operating systems market. Microsoft strongarmed Apple, software developers, and internet access providers to exclude its competitors.
 
Apple is not remotely a monopoly. It is engaged in daily, cut-throat competition to win the allegiance of consumers against Google (owner of the world’s dominant mobile operating system), Samsung (the global leader in smartphone sales) and others. What then is Apple’s crime according to DOJ? The company is alleged to have set terms and conditions about third parties’ access to Apple’s own platform and technologies.
 
The filing says it best, “it is simply not a viable theory of antitrust law for the Government to contend that Apple must open its own platform and its own technologies to third parties on terms and conditions that those parties prefer.” The law generally does not require a “duty to deal” with competitors on their terms.
 
This case is reminiscent of the failed antitrust action along similar lines against Meta. That one was kicked to the curb. This one should be as well.