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Re:Apple files emergency motion to become defendant in Googl... by granzymes on Friday January 31, 2025 @12:46PM (#42889763)
I think people have the wrong idea when they see “defendant” in the title. Here’s what happened:

Apple has been watching this case closely from the beginning because it implicates the enormous amounts of money that Google pays them to be the default search engine on Apple devices. They’ve been involved as a nonparty, providing witnesses and documents requested by Google and the United States and have had lawyers present to observe from the gallery throughout the proceedings.

Until recently, Apple and Google were on the same side. Google was incentivized to win the case, which is also what Apple wanted because that would preserve the revenue share. But then Google lost the liability phase of the trial, and the government asked for truly extraordinary remedies including a divestiture of Chrome, significant changes to Android contracts, and a 10 year ban on any contract of any value whatsoever between Apple and Google.

Apple feels that its interests are no longer perfectly aligned with Google’s. First, Google has bigger fish to fry than its Apple revenue share because it needs to defend its Chrome and Android businesses. Second, it would actually benefit Google if they weren’t able to pay Apple revenue share if Apple kept Google as the default search engine because it’s the best on the market and Apple doesn’t want to provide an inferior option to its users.

So Apple filed a motion to intervene for the limited purpose of defending its right to contract during the remedies phase of the trial. That doesn’t make Apple a defendant. The Court can’t order Apple to do anything in its final remodels order. But it would allow Apple to present evidence during the remedy phase, call and cross-examine witnesses, and participate in the post-hearing briefing.

Apple says its purpose in participating in the remedies phase is to present evidence that neither Google nor the government is equipped to provide: information on Apple’s future plans. Apple says, regardless of what the Court does, it has no plans to invest the billions of dollars that would be required to enter the general search market. The government’s ban on Apple working with Google is premised at least in part on that competitive entry, which Apple aims to demonstrate is a fantasy.

The Court partially denied Apple’s request, fearing that other parties would also want to intervene. The Court will not allow Apple to call or cross-examine witnesses, but Apple can submit up to two affidavits from fact witnesses and participate in writing post-hearing briefs.

The government has represented to Apple that it will challenge the Court’s decision to give Apple that limited role during the remedies phase, and so the linked document is a request for a pause of the remedies phase while Apple appeals the partial denial of its motion to intervene to the D.C. Circuit.

Happy to answer any questions about the legal standards involved or the procedural history of the case.

Re:Apple files emergency motion to become defendant in Googl... by DannyBee on Friday January 31, 2025 @02:59PM (#42891234)
The court's position here is strange - you can't bind non-parties with injunctions.

This is even part of the FRCP - see 65(d)(2)

The only exception is basically aiding and abetting.

This is well settled caselaw basically forever. I posted it elsewhere in the thread, but here's a very recent example: https://reason.com/volokh/2025/01/24/google-as-non-party-not...

(Youtube can't be ordered by a federal court to take down posts as part of an injunction, when they aren't party to the case).

The court may want to keep whatever scheduling it has, but it's going to royally screw itself if it tries to order an injunction that affects the rights of non-parties in a meaningful way like this, without being really really careful about it.

Especially with SCOTUS just itching to find important cases where they can reinforce the limited nature of injunctions and ensure courts only grant relief that deals with the parties at hand.

Re:Apple files emergency motion to become defendant in Googl... by FateOfNations on Friday January 31, 2025 @08:30PM (#42894709)
I'd summarise it as:

Apple can ask Google to do business, but Google will be under court order to respond, "Sorry, we can't."

In that situation, Apple would not have any obligations to the court. Google would be responsible for avoiding doing business with Apple.

Obviously, this would impact Apple's economic interests, so they want a seat at the table.

Re:Apple files emergency motion to become defendant in Googl... by DannyBee on Saturday February 01, 2025 @08:07AM (#42898007)
Yes, but you generally can't affect the rights of a third party through litigation, unless it involves the third party.

You can't really end run around this by doing it in the other direction, because it has the same effect - even though they could not hold apple in contempt, they could hold google, which has the same effect.

Again, it's gotten looser more recently, but forever, this was not okay, and the underlying precedent has not actually changed. Everyone does expect SCOTUS to make a statement case in the next few years about this.

In any case - Imagine i ordered you not to have contact with your best friend, without them desiring this. An argument that i've only enjoined you falls flat - at best, i've had serious affect on their constitutional right to free association, etc.

Saying "yeah but only you will get held in contempt" doesn't really work.

Re:Apple files emergency motion to become defendant in Googl... by Sargos on Friday January 31, 2025 @03:04PM (#42891286)
>if Apple kept Google as the default search engine because it’s the best on the market and Apple doesn’t want to provide an inferior option to its users

Apple did exactly this in the past with Apple Maps replacing Google Maps, so I don't see why this would bother them much.

Re:Apple files emergency motion to become defendant in Googl... by yellow_lead on Friday January 31, 2025 @01:07PM (#42889973)
> Second, it would actually benefit Google if they weren’t able to pay Apple revenue share if Apple kept Google as the default search engine because it’s the best on the market and Apple doesn’t want to provide an inferior option to its users.

That doesn't make much sense to me. If that were the case, Google could've stopped paying it long ago?

Re:Apple files emergency motion to become defendant in Googl... by granzymes on Friday January 31, 2025 @01:25PM (#42890168)
Prior to this lawsuit, Apple could bluff and say they would contract with Bing or some other search engine, and indeed evidence from the trial showed that Apple would invite Bing to submit bids but internally was clear that no amount of money would be enough to switch from Google. One key piece of evidence showed that Microsoft had offered to give Apple 100% of its Bing revenue on Apple devices and that still wasn’t enough to overcome Bing’s lack of quality.

If Google is removed as an available option, Apple can longer keep up the facade and will be forced to either suck it up and keep Google for free or give their users an inferior product. Mozilla tried switching from Google once and users hated it. Apple doesn’t want to piss off its users.

Re:Apple files emergency motion to become defendant in Googl... by modeless on Friday January 31, 2025 @01:42PM (#42890350)
Apple did send traffic to Bing in the past. It wasn't all of their iOS search traffic, but some.
Re:Apple files emergency motion to become defendant in Googl... by avianlyric on Friday January 31, 2025 @02:36PM (#42890983)
At different points in time Spotlight search and Siri have used Bing for internet search. It's not totally clear what the latest version of iOS uses, but it wouldn't surprise me if Bing was still used.
Re:Apple files emergency motion to become defendant in Googl... by yellow_lead on Saturday February 01, 2025 @06:04AM (#42897505)
Makes sense, thanks for your explanation!

Its interesting how a court case like this can expose a company's negotiating position

Re:Apple files emergency motion to become defendant in Googl... by alt227 on Friday January 31, 2025 @01:12PM (#42890027)
Thankyou so much for the laymens terms explanation.

This all sounds so complex to my non legal brain, but is 'a request for a pause of the remedies phase while Apple appeals the partial denial of its motion to intervene' classed as a really simple standard legal procedure in the courts?

Re:Apple files emergency motion to become defendant in Googl... by granzymes on Friday January 31, 2025 @01:20PM (#42890112)
These types of motions for a stay are analyzed under a four-part test. Apple needs to show that 1) it is likely to succeed in its underlying request, 2) that without a stay it will suffer irreparable harm, 3) that no other party is unduly harmed by a stay, and 4) that the public interest is not disserved by a stay.

The four parts are weighed together, and a strong showing on one part can make up for a weaker showing on another part.

Assuming that Apple can make that showing, yes the standard procedure is to stay the case while Apple appeals. That preserves the status quo, which would be lost to Apple forever even if it ultimately succeeds on appeal if there was no stay (this is the “irreparable harm” part of the test).

Re:Apple files emergency motion to become defendant in Googl... by deafpiano on Friday January 31, 2025 @01:42PM (#42890349)
If the DoJ get's Google to divest from Chrome, wouldn't that also setup some precident to force Microsoft/Bing to divest from (the new chromium) Edge?
Re:Apple files emergency motion to become defendant in Googl... by granzymes on Friday January 31, 2025 @01:47PM (#42890385)
I highly highly doubt that DOJ succeeds in convincing the Court to force Google to divest Chrome. That wasn’t really part of the trial, which focused on Google’s contracts to make its search engine the default on other platforms.

However, if DOJ does succeed then yes this case could make it easier in the future to force Microsoft to divest Bing if Bing ever gained a monopoly in search. As a comparison, the original Microsoft antitrust case precedent is very important to this search case. That’s why the government sued in this district (the same district they sued Microsoft in decades ago).

Re:Apple files emergency motion to become defendant in Googl... by TiredOfLife on Friday January 31, 2025 @02:23PM (#42890813)
Microsoft/Bing is not the dominant (far from it) search/ad/platform provider
Re:Apple files emergency motion to become defendant in Googl... by everial on Friday January 31, 2025 @01:07PM (#42889974)
(not a lawyer) What's gut check on how likely this is to succeed? Is this one of those things like preliminary motions to dismiss that are almost always filed but rarely successful, or has a decent shot?
Re:Apple files emergency motion to become defendant in Googl... by granzymes on Friday January 31, 2025 @01:22PM (#42890136)
My gut says that Apple will probably get to keep what the Court gave it already (the ability to file two affidavits and participate in the post-hearing briefing) but not full intervention as it originally requested.

District courts have very broad discretion to order their affairs (going to the first point) and Apple’s request likely came too late to be permitted to intervene (going to the second point).

Re:Apple files emergency motion to become defendant in Googl... by Oarch on Friday January 31, 2025 @01:01PM (#42889923)
I very much needed the plain English. Thank you!