Antitrust Wars: A New (False) Hope? The Supreme Court's Decision in Apple v. Pepper

Abstract

Media coverage of high-profile antitrust cases, such as the Supreme Court's decision in Apple v. Pepper, could easily lead one to draw the conclusion that an Antimonopoly Backlash has finally reached the Supreme Court. However, while the decision certainly represents a positive development in terms of heightened antitrust accountability, and there is a silver lining, a close review reveals that the ruling, in fact, best represents a reaffirmation of, rather than a departure from, traditional consumer welfare antitrust analysis. Thus, while the recognition of bottleneck monopsonies in Apple v. Pepper may indicate an increased openness to addressing monopsonistic markets, it does not appear that the Court is departing in any way from its emphasis on a consumer welfare analysis focused on price and output. Therefore, those seeking to impose increased antitrust accountability and combat excessive concentration should not see in Apple v. Pepper the beginnings of an Antimonopoly Backlash — for it would be a false hope. Rather, those seeking to prevail on antitrust claims should continue to couch their claims in the language of consumer welfare, and in order to appeal to the likely swing Justice, the alleged harm should be presented in the form of allegedly heightened prices or lowered output. In order to achieve more radical reforms, it appears that robust legislative action or regulatory rulemaking will be needed.