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.