Apple, a key witness in the US government’s case against Google, is seeking a more active role in the remedies phase of the trial where solutions to Google’s search monopoly will be decided. They are concerned that the government’s proposed remedies, which include ending lucrative deals between Apple and Google, will negatively impact them. Despite the judge denying their request to participate directly, Apple is appealing the decision and asking for a stay in the proceedings to ensure their interests are adequately represented.

Although Apple understands that this Court intends to adhere to the “strict confines of the [C]ourt’s Scheduling Order,” Order Denying Limited Intervention at 16, Jan. 27, 2025, ECF No. 1153, Apple has no choice but to move for a stay of these proceedings to protect its rights pending appeal. Absent a stay, Apple will suffer irreparable harm: the deprivation of its right to participate as a party in the remedial phase of this case moving forward, including possibly at the trial itself, while its undisputed property rights are adjudicated. These harms are magnified by a position Plaintiffs revealed in a recent meet-and-confer with Apple. Specifically, Plaintiffs represented that they intend to challenge this Court’s decision permitting Apple to submit up to two affidavits during the trial. Courts have commonly granted stays pending appeal of orders denying intervention, and this Court should do the same here. In the alternative, the Court should at minimum afford Apple full access to the record as a nonparty until the D.C. Circuit rules.

Apple continues explaining how much the desired outcome will hurt them with “irreparable harm”:

Second, Apple will suffer clear and substantial irreparable harm if it is unable to participate in the remedies phase moving forward. Apple will be unable to participate in discovery and develop evidence in the targeted fashion it has proposed as this litigation progresses toward a final judgment. If Apple’s appeal is not resolved until during or after the remedies trial, 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.

I totally understand Apple’s argument here, but allow me to explain further in a fun analogy I came up with to explain it to my wife.

It’s like a playground where kids (users) love to use the swings (search engines). Google owns most of the swings and decides who gets to use them. Apple owns the playground and makes a deal with Google: Google pays Apple a lot of money to make sure their swings are the only ones easily available to the kids. Now, the playground teachers (the government) say Google isn’t playing fair and has too much control over the swings. They want to change the rules to give other swing makers a chance. Apple is worried because if the kids can use any swings they want, Google might not pay them anymore.

So, Apple wants to talk to the teachers and explain why they think their deal with Google is good for the playground. They also want to make sure the new rules don’t make the playground worse for everyone.

Analogies are hard, but she totally understood exactly what’s happening here and you want to know what her answer was? “Why doesn’t Apple just make their own swings? They are a trillion dollar company aren’t they?" 😏