This Hulking Lawyer Leads the Courtroom Charge Against Apple
WHY YOU SHOULD CARE
Because Rifkin is ushering in a new age of oversight on tech monopolies.
By Nick Fouriezos
It was the first day of his first job out of law school, and Mark Rifkin had to stop by a federal court for what was supposed to be a mere scheduling hearing for his midsize law firm in Philadelphia. When the judge arrived, though, Rifkin was asked to provide not a calendar but an argument — the key argument for why his firm believed the case should be dismissed. “So I argued,” says Rifkin, his 6-foot-5 frame hunched over a coffee table at a trendy café in Washington three decades later, “and won.”
Rifkin, 58, has a competitive streak. The former shot-putter and offensive lineman at Princeton University considered the NFL — even signing an agent — before tackling the law. With an uncanny calm under pressure, he’s become one of the nation’s foremost antitrust lawyers, named both a “Titan of the Plaintiffs Bar” by Law360 and a “trailblazer” by the National Law Journal. He challenges monopolies in any form, from representing college football players suing the NCAA for pay, to consumers forced to pay royalties for using the song Happy Birthday. The latter, called a “lawsuit for the ages” by The New York Times, led to a $14 million settlement and the popular song moving to the public domain.
It’s Rifkin’s recent work taking on a true giant — technology behemoth Apple, one of the world’s most valuable companies — that has him starring before the U.S. Supreme Court. “I guess Goliath needs to have somebody on his side too, but I naturally gravitate to David,” the looming lawyer says, his hushed tone understating the grandiosity. “We all root for the underdog.”
Historically, we have always been suspicious to the aggregation of power.
In Apple Inc. v. Pepper, Rifkin represents iPhone users suing Apple for monopolizing the retail market on its app store and artificially raising prices as a result. And on May 13, the Supreme Court sided with Rifkin, saying consumers had standing to sue, in a 5-4 majority opinion in which the court’s newest member, Brett Kavanaugh, sided with the liberal justices. The case stands out as a rarity, says Avery Gardiner, a senior fellow at the Center for Democracy & Technology: “It’s weird because every presidential candidate has a platform about antitrust, which would make you think there is some big groundswell in the courts.”
The courts still have to decide whether Apple’s store is a true monopoly, but Kavanaugh’s opinion vindicated an eight-year quest for Rifkin and his team. Still, antitrust cases are unusually tricky because they boil down to “trying to figure out what the future would have held if a company had done business in a different way,” Gardiner says. Rifkin will have to use economic data and key witnesses, perhaps from other tech giants such as the Google Play store, to prove his crystal ball is better than that of his opponents — in a case that will likely drag on for years.
It’s playing out against increasing public and political skepticism of Big Tech. The Trump administration’s Federal Trade Commission (Facebook and Amazon) and Justice Department (Google and Apple) are investigating the tech giants, while U.S. House Democrats announced their own big-tech antitrust probe this month. “Consumers are more at risk because their rights have been eroded over the years,” Rifkin says, including the rise of compulsory arbitration laws that often restrict lawsuits.
It’s unclear whether the Apple case will directly impact other tech companies, since its closed marketplace model is different from the Ubers and Airbnbs of the world, which have competitors and don’t require a high price of entry. “If you want to take a ride on Uber, you don’t have to buy the car to do that,” Rifkin says. “To enter the Apple system, you have to buy an iPhone. You have to commit to a pretty hefty price. And once you do that, you become beholden to Apple and its power to exploit.” As Kavanaugh noted, iPhone owners (unlike those with other types of smartphones) have only two options: to buy from Apple’s App Store at a “higher-than-competitive” price or to not buy the app at all.
Not everyone agrees. The decision reflects this “free-flowing angst about Silicon Valley” that stems from a legal system that doesn’t really understand tech, says Bruce Gibney, lawyer and author of The Nonsense Factor: The Making and Breaking of the American Legal System. “The ultimate goal of antitrust law is pro-consumer,” Gibney says, but if that’s the case, then the government should be protecting big retail brands like Apple and Costco that offer convenience and security.
Rifkin lives in Fairfield County, Connecticut, and works in New York City as senior counsel at Wolf Haldenstein Adler Freeman & Herz. His father, Stanford, was a World War II veteran with a short-lived boxing career — three victories by knockout before hanging up the gloves — and a few years as a Washington Redskins tight end. But Stanford wanted a more white-collar existence for his son, moving the family to the Philadelphia suburb of Cherry Hill, New Jersey, for the schools. While Rifkin competed in international competitions for track and guarded the flank of future Redskins quarterback Bob Holly at Princeton, becoming a lawyer was always the biggest goal, inspired by his attorney uncle, his only relative at the time with a college degree.
Of all his traits, it’s “probably his calmness” that stands out, says Randall Newman, his colleague at Wolf Haldenstein on the Happy Birthday case. “He is the ‘trees’ guy — he has the ability to see the big picture that is the forest.” Adds Jennifer Nelson, a documentary filmmaker and lead plaintiff in the Happy Birthday case: “He shifted the courtroom, where he was up against the ropes, getting hammered, and he turned it.”
Next up? While Rifkin pushes for consumer settlements in the Apple case, he will turn toward fighting a copyright case around the song “This Land Is Your Land” and to the world of college athletics, another monopoly he believes needs reforming.
His class-action lawsuit led by the former University of Southern California linebacker Lamar Dawson seeking pay for revenue-generating college athletes awaits a decision from the Ninth Circuit Court of Appeals on whether it can proceed. “I know the demands that are placed on the players,” Rifkin says. “For some people, this is primarily a business relationship, not an amateur one.”
In Rifkin’s opinion, the greatest threat to the tech giants is not in the business world they’ve already dominated but from politicians and regulators increasingly weary and wary of the companies’ “move fast and break things” ethos. “Historically, we have always been suspicious to the aggregation of power,” Rifkin says, an argument that can appeal to conservatives and liberals alike. “The biggest threat to a company like Apple is you get too big and you think you can exert control simply because you are as big as you are.”
In that sense, Rifkin’s contest resembles past government efforts against Microsoft, Standard Oil and AT&T. And perhaps, this time, it takes a giant to beat one.
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