Biden's Rush to Appoint Judges

nominations did Biden make to California courts? Last Wednesday? The President nominated three nominees for the ninth Circuit from California and to Central District of California and one Eastern District California nominees. But there are still in California many many openings. There are emergencies another fifteen district ones that have no nominees.

So still the state is the word case scenario. But it's great to have at least some nominees, and and to have the three for the nine Circuit is important, of course, because President Trump confirmed ten people for that twenty nine judge court. Senator Diane Feinstein said in a tweet after reviewing more than three hundred applications to the federal judiciary, I'm confident that these nominees will make outstanding juris. If they've reviewed hundreds of applications, why haven't they proposed

more nominees to fill the spots. Well, that's a good question. I assume that she and Senator Padea sent much smaller packages of recommendations to the White House, and my guess is they are in the White House, but there are many other vacancies around the country, and other senators I think sent their recommendations earlier, and so there may be

a bit of a backlog there. But the White House has been moving very quickly, and I assume we'll have another package of californ on your nominees in the short term, so hopefully that will work more efficiently and more quickly going forward. So let's talk about the nominees for the ninth Circuit three vacancies. And you have Lucy co she's Asian, you have Gabriel Sanchez who's Latino, and Holly Thomas, who's Black.

So is the attempt here to diversify the ninth Circuit. Well, certainly those nominees are diverse in terms of ethnicity and to some extent experience, though all three are sitting judges, and of course Lucy Co is one of the finest district judges in the nation, was nominated by President Obama, but the Senate majority Republicans refused to give her a confirmation vote, I think because they were afraid that then she would make a record and be positioned for the

Supreme Court. And so the nominees are very experienced and of course bring ethnic and gender diversity to the court. Also diversity in experience. Judge Sanchez dealt with corrections and criminal justice matters when he was in the Jerry Brown administration, and Judge Thomas was a civil rights lawyer. Yes, and she worked at the Department of Justice Civil Rights Division

as well. So you're exactly right. They bring experiential diversity, as do almost all of the appellate and many district nominees. So far from this president has President Biden nominated any white male. A few, for example, down in the four Circuit where I am Toby Heightens was a solicitor general is a Solicitor General for Virginia, and Clerkford, Justice Ginsburg and Eddie Becker on the third Sir Kit and he is a white male. But there are very few others.

That's exactly right, And Lucy co would be the first Korean American federal appellate judge. That's sort of hard to believe that she's the first. Do you think she'll be attacked by Republicans for some of her rulings? Well, she maybe, but she has handled some incredibly difficult and complex cases emanating from Silicon Valley, Uh, And I think uh done a fine job in those cases, and so I don't think there's any issue about what a fine judge she is,

and so I'm certain that she will be confirmed. You mentioned that former President Trump put ten nominees on the ninth circuit. Is that circuit more Democratic appointees more Republican appointees at this point? And will these new nominations change anything? They won't change the composition in terms of appointing president. They're sixteen appointed by Democratic presidents and thirteen appointed by Republican presidents. And the three who are assuming senior status,

we're all appointed by Democratic presidents. But you're earning twenty or thirty year because these nominees are much younger, of course than the people assuming senior status or in their sixties or seventies. So now tell us about the nominees to the district courts. Well, there are two for the Central District, and one is named Frempong is her last name, and she brings ethnic and gender diversity. Second is her

nan Vera, and he brings ethnic diversity. Both of them are presently judges I think in the state system California. And then Jennifer Thurston, who's a magistrate judge in the Eastern District of California, which is in Sacramento, though I think she sits in Bakersfield. So they're all very experienced judges. They will be I think ready to assume the federal District Court responsibilities. And of course the Central District is

very much underwater these days. Um it has still six vacancies on a twenty eight judge court, and it has a huge docket. The judges decide twice as many civil cases annually as judges in the rest of the country, and Eastern is even worse. For decades they have been underwater,

and so it's great to have one more. But of course the judges ships bills, based on the recommendations of the Judicial Conference to Congress called for fifteen new district judges in the Central District, and think four or five in the Eastern District and see if that passes. There was a hearing in February, but it's not clear that Republicans will sign on, of course, because that would allow

the President to make more appointments. Of course, if you don't fill all the vacancies, you may never get to the new judge ships, should Congress choose to create them. The Eastern District of California's chief judge, Kimberly Muller, in July called the vacancy's crushing and I have to ask you, why is California? Why are they in this crisis situation all the time. Is it the fault of the senators from California not nominating enough or not working with the

prior administration. Well, to some extent it may be. I think Vice President Harris, when she represented California and the Senate, was opposed to a number of the nominees because she felt they weren't appropriate to sit in California. And some of it was political, but I think most of it was she felt either weren't qualified or they were very uh conservative. And I think that was true, though more

so at the appellate level. For example, the Ninth Circuit nominees and appointees from Trump were quite conservative and have shown that since they've been on the bench, and so I think she opposed the number. It's a huge state that many many district and circuit judges, and so it's unless you stay on top of that situation, it's very hard to catch up. And so that's what I think

we're seeing. But I'm optimistic from what you said, the Senator Feinstein's at about three hundred people vetted and then hopefully recommendations sitting in the White House that it will move. And the Senate has been moving very quickly. Every two weeks the Senate is in session, there's a hearing usually for at least one appellate judge in four or five district judges. In fact, there's one scheduled for tomorrow, so there's no lads. From the Senate's perspective, the White House

is moving. Seems to be a well oiled nomination and confirmation system that the president and the Senate majority haven't place. And we talked before Biden was nominating faster than any other president in modern days. Well, I think that's still true. If you were to look at the time right before the Senate recessed, I think you have to go back to Nixon to find as many appointees and probably even

further to find as many nominees. There forty three nominees now, but you have to keep in mind right now on the floor there are two appellate nominees on the floor who could have votes this week, and about ten more district nominees who could and Culture has been filed in a couple So once those aren't confirmed by the Senate, then I think again, by that point, you know, in September or whatever, after the rese probably will eclipse the number that Nixon even had, and so it may be unprecedented.

The number is the Biden administration racing to get in as many nominees as they can before the mid term elections. Yes, I think they have been very straightforward about that, and they've made every effort to have the Senator's recommendations come in as soon as possible and to process them as soon as possible, and then to move them to the Senate as quickly as possible. At some point, the calendar

dictates some issues. For example, when you get into the holidays Thanksgiving and Christmas and New Year's the Senate will be out and and it'll be hard to confirm a lot of people. But when they come back in January, they'll start again, and so I think that we could see huge numbers even by the time Senate recesses in December.

So maybe as many as ten or fifteen appellate and probably fifty or so district judges appointed, which probably would be close to records for a first year or any president. So now let's switch to a court that Biden wishes

he could nominate someone to the Supreme Court. Just as Amy Coney Barrett appeared at an event to mark the thirtieth anniversary of the University of Louisville's McConnell Center, she told the crowd, quote, my goal today is to convince you that this court is not comprised of a bunch of partisan hacks. What's your reaction to her speech. Well, that's interesting coming from her, and it seems to me what you should do is watch what they're doing, not

what they're saying. And of course there's huge firestorm over what happened with SP eight in Texas, and the Court used at shadow docket to allow that draconian measure to go into effect. So that makes the populists somewhat nervous about what's going on at Supreme Court. It's not terribly transparent. You don't have hearings, uh, you don't have any oral argument, you don't have much by way of briefing in that

kind of situation. And so when justices appear at political events, which is fine, they sometimes say things that may seem political. And of course we do value the respect that the people have for the Court. So it should not be viewed as a part of an institution. And Justice Prior has just written a book on that, and he's been speaking out about that, and so it's important. In chief Justice Roberts is a strong institutionalist and is always concerned

about the credibility of the Supreme Court. Thanks Carl that, Professor Carl Tobias of the University of Richmond Law School. After a year long legal battle between Apple and Epic Games, a llich has ordered Apple to make a major change the way it generates money from its app store, a ruling that chips away at the iPhone maker's grip on the one billion dollar market for mobile games. So why is it that it's Epic that's appealing the judge's decision.

Joining me is Mark Rifkin, a partner Wolf Haldenstein who represents consumers in an antitrust lawsuit against Apple. So who won this case? Did anyone win this case? I think it's a tie. I think there are parts of the

court's decisions that each side can claim as victory. Well, certainly Epic can claim an enormous victory in the court's decision to enjoin the anti steering provisions for I A. I think that's an important part of Apple's business model, and as it stands now, Apple cannot continue that particular practice, which is a major victory or EPIC. So I think that's a big deal. I think it's also a big deal at the court found that Apple's commission was anti

competitive and essentially unjustified. Some say that that could wipe billions from Apple's profits. I think that opening I a P so that developers can sell directly two consumers, at least for in app purchases, who risks a substantial revenue stream for Apple. I won't predict what that will be, but it certainly is a substantial revenustry. Whether Apple can

retain those developers after the court's order becomes effective. It's a huge question, and the effect on Apple's revenue is something that we're all going to watch over the next you know, several months in year or so. For the average person, how will it work in the future. You'll go into the app store and you'll get a choice whether to pay through Apple or whether to pay through the developer. I think that's exactly right. I think. And it's not on the app Store that this happens. It's

it's within the app. I A p is an in app purchase. So let's talk about for example, let's talk about a gaming app. If you're playing a game and you have the option to buy a game token or a game piece, or extra lives or whatever it may be. That's a purchase that you make while playing the app. It's an in app purchase, and you can do that from your phone or from your iOS device, if you're

playing on a tablet, whatever it is. But that payment, now, under the court's decision, does not need to be processed through Apple. Apple won't get to collect the revenue and won't get to impose its commission on that feat. You'll be able to pay the developer directly from the app or that in app purchase. So that's a that's a significant and change to the way Apple is processing payments on in app purchases. But there are other in app

purchases as well that are just as support. For example, if you have the New York Times app on your phone and you subscribe to the New York Times, you can now do it directly through the New York Times when the judge's order is implemented from your phone, without having to leave your phone. Go to a web browser, log into your New York Times account and subscribe. That way, you can do it directly from the app. So those are those are big changes, no doubt about. So let's

talk a little bit about her ruling. The key was defining the market in question, and basically she disagreed with both sides about the definition of the market. So why is the key defining the market and how did she define it? Well? In in any antitrust case, the first fundamental question you have to ask is what's the relevant market in which the allegement offomists is supposed to be operating. And here she picked a market of international portable game applications.

It was both broader than and narrower were than the markets that each side was proposed, and what it meant was her analysis of Apple's ability to control the market and the effects on competition in the market that she defined is driven by the definition of the market, and ultimately she concluded that Apple did not have monopoly power and did not exert monopoly power in the particular market that you point. So the judge wrote, success is not illegal.

She cautioned that it's market share of more than wasn't enough to sustain a monopoly case, But did she indicate that in the future it could be a monopoly if it gets higher. Well, she made a point to say that there's no magic number, that there's a rain of numbers in which some cases have said it's enough, in

some cases have said it's not. She balanced all of the factors in the record before her, and she concluded on the basis of all those facts that Apple did not possess sufficient monopoly power in the relevant market that she defined. But it doesn't change the overall legal framework of what constitutes the requisite monopoly power. In other words, it's a very case specific, fact intensive kind of inquiry,

and she acknowledged that in her decision. So now, Apple had argued that that it has a wall garden model and that it needed to control the entire app store ecosystem to ensure privacy and protect consumers from being ripped off. Did the judge agree with that? The judge found, on the basis of the evidence presented in the epic trial, that she could not conclude that there was anything anti

competitive about the wall of the garden. She recognized that it was a differentiating factor for Apple, but she did not have enough evidence in the record before her, or at least this was her conclusion that she did not have enough evidence in the record before her to make a decision that that was any competitive I'm just wondering if this decision will affect antitrust regulators bringing an antitrust

action against Apple. Well, no, because I think that where in court found in Apple's favor, it was as much because of the evidence that was presented in the trial and what she felt was insufficient evidence. And I won't comment on whether I agree or disagree with that, but she said that she felt that there was insufficient evidence on some of the issues that she needed to address. But that doesn't mean that in another context, in another case,

that someone couldn't present more evidence or different evidence. And so, for example, when we look at the case and we look at what was offered by way of the security justifications for locking the app store, we may choose to present different evidence in our case than Epic presented in its trial because the focus of our case will be different, and on the basis of the record that we create in our trial, the court may reach a different conclusion.

Explain that finding of this judge about commission. Well, in a in a nutshell, what the judge said is Apple decided to charge without any justification. We're doing so and it has proven to be immensely profitable for Apple. And despite the fact that there have been enormous changes in the scope of the app store, Apple has by and large adhered to that single commission, which the court found to be unjustified on a competitive basis. Tell us about

your case. Remind us, so we represent the consumers who have been locked into this ecosystem by Apple's virtual monopoly over the App Store. If you buy an iPhone or an iOS device and you want to put apps on your device, you have nowhere to go, and nowhere in the shop except the App Store. So in our case, Apple doesn't have the market Apple has of the market, and so clearly Apple has market power in the market

that we believe is relevant in our case. And so that's that's one differentiation between our case and Epics Kings. Your case went up to the Supreme Court, give us

a little bit of the history of it. So we began litigating this case way back in two thousand seven when the iPhone was first introduced, and we sued both Apple and A T and T. And we were successful all the way up to the point when the Supreme Court decided A T and T versus concepts Ione and reversed what was the law in the Ninth Circuit that

made arbitration agreements essentially unlawful. So at that point, the court decided that we had to arbitrate our claims against A T and T, and so we split the case between Apple and A T and T. We only pursued Apple, and and we've been litigating the case ever since then.

We now have two separate cases, one on behalf of iPhone customers who complained about excessive voice and data charges, and the other the one that went to the Supreme Court on behalf of consumers iPhone consumers who complain about excessive prices for apps in app purchases because of Apple's monopolization of the App store, and they're super competitive commission. So this case and the Court's finding that the thirty

commission was anti competitive is an enormous helped us. What was the ruling when you went to the Supreme Court? So the Supreme Court had to consider whether we were direct purchasers from Apple for purposes of standing under the what is called the Illinois Brick line of cases that the Supreme Court decided in and they're the In our case, the Supreme Court said, yes, app store purchases buy apps and obviously make in app purchases directly from Apple because

that's the way Apple set the store up. So that if if you own an iPhone or or an iOS device and you want to put an app on the phone, you want to make an in app purchase, at least up to this point in time, you had to do so directly from Apple fourteen years. I mean, is this an exceptional case that it's been litigated for fourteen years or is this par for the course with Apple? Well, it's it's an exceptional case. It's not completely unheard of.

Apple certainly is known to litigate cases aggressively, you know, to the end, and sometimes complex cases, particularly any trust cases that involve multiple appeals, as our case has. You know, fourteen years is long, but not not so long that that it's unthinkable and and it's unfortunate because you know, people, people do suffer injury while the case is proceeding. I wish there were a faster and more efficient way to litigate these cases, but but this is what it is.

What stage are you at now? So we're in the class certification phase of the case, where we're asking court to let us proceed on behalf of the class of all Apple customers in the United States who pay for apps or in app purchases after buying their iOS devices, and that that will continue. Briefing will continue for another few weeks and then hopefully report will your argument and make a decision in the not to dis a future

and then you'll go to trial. Well, we'll probably have to finish some discovery, although we've done an awful lot of discovery because we were we were forced to complete a lot of discovery on the same schedule as Epic. There's probably some some additional discovery that we want to take, but we're scheduled to go to trial in I believe in September of two September of next year, before the same judge, before the same ye Thanks so much, Mark.

That's Mark Rifkin, a partner Wolf hallden Stein. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, in a www dot Bloomberg dot com slash podcast slash Law. I'm Joon Brunso and you're listening to Bloomberg