Thread by @RKSlaughterFTC

It was a good day for consumers and for antitrust law in the Supreme Court (a sentence I can say all too rarely). Below is a brief thread of some of my favorite lines from the decision in Apple v. Pepper. supremecourt.gov/opinions/18pdf…

(but first, a reminder that I wrote about how this outcome was the correct and logical way to resolve this case back in December.) nytimes.com/2018/12/12/opi…

"The broad text of §4 [of the Clayton Act]—“any person” who has been “injured” by an antitrust violator may sue—readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer."

Or, put more succinctly, "the text of §4 [of the Clayton Act] broadly affords injured parties a right to sue under the antitrust laws."

"Apple’s effort to transform Illinois Brick from a direct-purchaser rule to a 'who sets the price' rule would draw an arbitrary and unprincipled line among
retailers based on retailers’ financial arrangements with their manufacturers or suppliers."

"Apple’s line-drawing does not make a lot of sense, other
than as a way to gerrymander Apple out of this and similar lawsuits."

"If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer
or supplier...."

"If the retailer’s unlawful monopolistic conduct caused a consumer to pay
the retailer a higher-than-competitive price, the consumer is entitled to sue the retailer under the antitrust laws."

"[I]f accepted, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement."

Boom: "We decline to green-light monopolistic retailers to exploit their market position in that way. We refuse to rubber-stamp such a blatant evasion of statutory text and judicial precedent."

Key point: "Leaving consumers at the mercy of monopolistic retailers simply
because upstream suppliers could also sue the retailers makes little sense and would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases."

"Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated."

"Illinois Brick surely did not wipe out consumer antitrust suits against monopolistic retailers from whom the consumers purchased goods or
services at higher-than-competitive prices."

"Basic antitrust law tells us that the 'mere fact that an antitrust violation
produces two different classes of victims hardly entails that their injuries are duplicative of one another.' (citing 2A Areeda & Hovenkamp ¶339d, at 136.)"

Monopsony! "A retailer who is both a monopolist and a monopsonist may be liable to different classes of plaintiffs—both to downstream consumers and
to upstream suppliers—when the retailer’s unlawful conduct affects both the downstream and upstream markets."

In sum: "The plaintiffs seek to hold retailers to account if the retailers engage in unlawful anticompetitive conduct that harms consumers who purchase from those retailers. That is why we have antitrust law."