Apple Urges 9th Circuit to Deny SaurikIT's Petition for Rehearing

Apple opposes SaurikIT’s Jan. 18 petition for rehearing and rehearing en banc of the 9th U.S. Circuit Appeals Court’s rejection of its appeal to reverse the district court’s dismissal of its App Store antitrust challenge (see 2401190065), said Apple’s opposition response Tuesday (docket 22-16527). The 9th Circuit, like the district court before it, correctly held that SaurikIT's antitrust claims “are barred by the applicable statute of limitations,” said Apple. SaurikIT alleges that Apple violated the antitrust laws by mandating, in 2008, that the App Store be the exclusive marketplace for iPhone and iPad apps and, in 2009, by requiring Apple's in-app purchase system, it said. SaurikIT contends those practices excluded its “unauthorized” app store, called Cydia, from the market. Even though SaurikIT concedes it was aware of these policies back in 2008 and 2009, “it inexplicably waited” 11 years to bring its antitrust action against Apple, said the opposition. The claims were, as the 9th Circuit found, untimely on the face of the complaint, it said. SaurikIT seeks rehearing by arguing that the 9th Circuit erred in rejecting its attempt “to get out from under the time-bar by invoking the continuing violation doctrine through conclusory allegations,” it said. According to SaurikIT, such conclusory allegations are a “get-out-of-jail-free card” that allows even the most obviously untimely claims to proceed into discovery, “imposing massive burdens on courts and litigants alike,” said Apple’s opposition. “That is not the law,” it said. The 9th Circuit “has repeatedly rejected attempts to circumvent the statute of limitations where, as here, the relevant allegations are conclusory,” it said. Because the panel didn’t “overlook or misapprehend” any material point of law or fact, the petition for rehearing should be denied, it said.