Apple wants to ensure it has a voice in the remedies trial for the Justice Department’s search monopolization case against Google, and filed an emergency motion to stay the proceedings while it appeals the district court’s denial of its request to be more directly heard in the case.
Mehta denied Apple’s request to take a limited role in the remedies phase of the case in an order earlier this week, saying it didn’t file fast enough. Instead, he said, Apple could file post-hearing briefs explaining its views. The DOJ and state plaintiffs had opposed Apple taking part in the proceedings, while Google did not take a position.
Apple believes it now needs to take a role in the case because unlike in the earlier stage, its interests may no longer be sufficiently represented by Google. The government’s proposals to end lucrative deals for Apple — where Google pays for default positioning — “implicates concerns unique to Apple,” it says. Apple worries that Google will need to decide which arguments to focus on most — including the government’s request that the Chrome browser business be spun out — and the ones that concern Apple might not be adequately covered.
Apple writes that if its appeal isn’t handled until after the remedies trial has begun and it’s unable to participate, “Apple may well be forced to stand mute at trial, as a mere spectator, while the government pursues an extreme remedy that targets Apple by name and would prohibit any commercial arrangement between Apple and Google for a decade. This would leave Apple without the ability to defend its right to reach other arrangements with Google that could benefit millions of users and Apple’s entitlement to compensation for distributing Google search to its users.”
While Mehta hopes to resolve the case by August, Apple says that “the concern about a short delay is outweighed by the need for a fully developed record that includes information that only Apple can develop,” like how the DOJ’s proposals to eliminate Google’s monopoly power would impact Apple, and why they might not work. Apple said in its initial motion to intervene that it would offer evidence that despite the government’s suggestions, it would not create a general search engine were it not bound by its default agreement with Google.
If Mehta doesn’t grant the stay pending appeal, Apple requested at the very least that it gain access to discovery and depositions as a non-party while the Circuit Court considers its appeal. “Absent a stay,” the company writes, “Apple will suffer irreparable harm.”
