Supreme Court to Decide iPhone App Store Case

Written By Stefani Joslin


On Monday, June 18, the United States Supreme Court decided that it will hear arguments regarding allegations that Apple’s iPhone customers are paying high prices for apps.


In 1977, the Supreme Court ruled in Illinois Brick Co. v. Illinois that only direct purchasers, not purchasers who buy products further downstream, may sue under the federal antitrust law. Today, four Apple iPhone customers are seeking damages alleging that Apple has violated antitrust law by “monopolizing the app market”.

The case stems from a lawsuit that was initiated in California seven years ago. Prior to bringing this to the Supreme Court, a federal court decided that the company could not be sued by consumers since the consumers were not directly overcharged. The panel stated that Apple was merely serving as a distributor and selling the apps directly to customers and only pocketing a part of the apps’ profits. In 2017, the 9th U.S. Circuit Court of Appeals reversed the decision, reasoning that consumers had a right to sue since the consumers were buying the apps through Apple’s App Store. Apple had won the initial suit.

The Lawsuit

Seven years ago, Robert Pepper and three other iPhone users initiated this lawsuit in federal court in Oakland, California and sought class action status. The suit accused Apple of monopolizing the iPhone app market and selling the apps at a high cost to its customers by only approving apps if the developers agreed to allow the apps to be exclusively distributed within the App Store. This fight is threatening to expose not only the Apple company but also its technology industry peers to antitrust scrutiny. According to these plaintiffs, Apple has “total control” over games and other offerings that are within the App Store.

On June 18th, 2018, the Supreme Court decided that the case will be taken from the 9th U.S. Circuit Court of Appeals. The lawsuit stated that when Apple customers purchase an app from the App Store, “the price includes a 30 percent markup that goes to Apple.”. Apple’s argument is that the company does not actually sell the apps, but rather acts as a “middle man” between the app developers and consumers.

Apple’s Argument

Apple has argued that it cannot be sued due to the fact the commission is levied by the app developers, not by the consumers bringing suit. Other companies, such as Google, Amazon, and Facebook may also be affected from the aftermath of this lawsuit. According to Apple, “[t]his is a critical question for antitrust law in the era of electronic commerce”.

What Could Happen Next

If the Court decides in Apple’s favor, the case could open the door for companies to run similar online marketplaces and have these types of interactions with customers through third-party sellers. The Supreme Court will hear arguments in the case, titled Apple v. Pepper, 17-204, during its upcoming nine-month October term.



Debra Cassens Weiss, Can IPhone users sue Apple for charges to app developers? Supreme Court to decide, ABA Journal (June 18, 2018, 3:06PM).

Greg Stohr, Apple Gets U.S. Supreme Court Review on iPhone App Fee Suit, Bloomberg, (June 18, 2018, 9:31AM).

Ann E. Marimow, Supreme Court to consider cases on the seizure of a $40,000 Land Rover, iPhone apps, and a moose hunter, The Washington Post (June 18, 2018).

Supreme Court to Take Up Apple iPhone App Lawsuit, NBCDFW, (June 18, 2018, 9:26AM).




The Molineux Rule: How This Exception to the Rules of Evidence Could Impact the Harvey Weinstein Trial

Written by Sara Lupi


On May 30, 2018, a grand jury in Manhattan indicted film producer Harvey Weinstein and charged him with Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First Degree. Although several women have alleged that Weinstein committed these and similar crimes, the indictment brought by the Manhattan District Attorney’s Office only named two victims. If the case proceeds to trial however, the prosecution may attempt to bring in evidence of Weinstein’s similar past behavior, for the purpose of establishing a pattern of sexual assaults.

Earlier this year, during comedian Bill Cosby’s retrial for sexual assault charges, prosecutors in Pennsylvania utilized the “Doctrine of Chances” as a way to call five other accusers to testify against Cosby. In Pennsylvania, the Doctrine of Chances is a narrow exception which operates similarly to Federal Rule of Evidence 404(b), which bars evidence of prior bad acts for the purpose of establishing propensity to commit a certain crime, but allows such evidence for other purposes. Evidence of prior bad acts can be admitted in order to establish something other than propensity “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” In the Cosby trial, the five other accusers had reported sexual assaults similar to the sexual assault on the victim by Cosby. In a pretrial motion, the Montgomery County District Attorney wrote, “as the number of victims reporting similar, drug-facilitated sexual assaults by defendant increases, the likelihood that his conduct was unintentional decreases … defendant’s prior bad acts are admissible under the “doctrine of chances” to negate the presence of any non-criminal intent and, concomitantly, to establish an absence of mistake.”

The Molineux Rule

In New York State, where Weinstein is going to be tried, the Doctrine of Chances is known as The Molineux Rule, which gets its name from a New York State Court of Appeals decision in the case of People v. Molineux. Under this rule, prosecutors can bring in proof of a defendant’s prior bad acts or crimes not to show criminal propensity, but to “establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.” [1] It should be noted that New York State has not adopted Federal Rule of Evidence 413, which allows evidence of similar crimes in sexual assault cases for the purpose of proving propensity to commit sexual crimes. So, even though Molineux has the potential to let evidence of similar prior bad acts in at trial, the bad acts cannot be used to prove propensity, but rather to show one of the previously mentioned purposes.

The exception is used rarely in New York State, because evidence of prior similar bad acts is considered highly prejudicial. The probative value must be weighed against the prejudice the evidence would cause the defendant. Additionally, the “evidence must be ‘highly probative’ and ‘directly relevant’ to the purpose for which it is offered and have a natural tendency to prove such purpose.” This is an extremely high threshold for prosecutors. The rationale behind Molineux is that if a defendant commits the same bad acts, or commits the same crime multiple times, in a similar manner, there is a high probability that this is not just coincidence.

How Molineux May Be Used in the Case Against Weinsten

Here, many of Weinstein’s accusers have brought forth similar stories of his abuse, which has been called “casting-couch abuse.” Women allege that Weinstein took advantage of his position as a Hollywood producer to force young actresses into having sex with him or performing other sexual acts. Weinstein’s own defense attorney, Benjamin Brafman, told the press after his arraignment that Weinstein “did not invent the casting couch in Hollywood,” which has been seen as a glimpse into a possible defense for his client: that this was not rape, but rather a choice made by each actress in an effort to advance their careers. However, this comment also foreshadows the possible use by prosecutors of the Molineux Rule, to show that Weinstein’s alleged actions were part of a common scheme or plan.

Currently, it is unclear whether Weinstein’s case will proceed to trial. While he has entered a plea of not guilty, some experts believe the case may end with a plea bargain. His defense attorney has stated that if the case does go to trial, he will consider attempting to sever the rape charges from the charge of criminal sexual act, and proceed with two separate trials. His next court date is scheduled for September 20th in Manhattan.


Aaron Katersky and Bill Hutchinson, Harvey Weinstein pleads not guilty to rape charges, ABC News (June 5, 2018),

Danny Cevallos, How Weinstein lawyer’s ‘casting couch’ comment could impact his defense strategy, NBC News (May 27, 2018),

Debra Cassens Weiss, Harvey Weinstein is indicted; could other accusers testify at trial? ABA Journal (May 31, 2018),

Fed. R. Evid. 404(b), 413.

Montgomery County District Attorney’s Office Motion to Introduce Evidence of 19 Prior Bad Acts of Defendant, Jan. 18, 2018.

People v. Molineux, 168 N.Y. 264 (1901).

People v. Cass, 784 N.Y.S.2d 346 (Kings County 2004).

Tracy Connor, Harvey Weinstein surrenders to NYC police, is charged with rape, NBC News (May 25, 2018),



Controversial Cake: The Masterpiece Cakeshop Decision

Written by Michael Varrige



Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission originated as a complaint made to the Colorado Civil Rights Commission by a gay couple against a baker who refused to bake a custom wedding cake for their wedding back in 2012 due to his religious objection to same-sex marriage (though the baker did offer to sell any other product to the couple, just not a custom wedding cake). The Commission ruled in favor of the couple, finding that the baker’s refusal to make the wedding cake violated Colorado’s Anti-Discrimination Act. The Commission’s decision was affirmed by the Colorado Court of Appeals and was not heard by the Colorado Supreme Court. The Colorado Anti-Discrimination Act states, in part, “it is a discriminatory practice and unlawful for a person . . . to refuse, withhold from, or deny to any individual or group because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation”. It also delineates the process by which a complaint will be heard—by the Commission and eventually appealed to the Colorado Court of Appeals and the Colorado Supreme Court.

In short, the owner of Masterpiece Cakeshop, Jack Phillips, argued that Colorado’s Anti-Discrimination Act violated his First Amendment rights of free exercise of religion and freedom of expression. The Commission countered that a cake was not a form of expression and that the act of baking a cake was neither participating in nor condoning same-sex marriage. For a more thorough look at the arguments made in front of the Supreme Court, please see a prior Legal Pulse post-Review: Masterpiece Cakeshop v. Colorado Civil Rights Commission compiled by Lacey Grummons, the link appears below.



Justice Anthony Kennedy, writing the majority opinion joined by five of his colleagues, reversed the decision by the Colorado Court of Appeals on the ground that the Commission violated Mr. Phillips’ right of free exercise of religion. Justice Kennedy was joined by traditionally conservative-leaning Justices Neil Gorsuch and Samuel Alito. Typically liberal-leaning Justices Stephen Breyer and Elena Kagan also joined the majority opinion. Justice Clarence Thomas concurred in judgment, but wrote his own separate concurrence instead of joining the majority

The majority determined that “the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” Essentially, the Court ruled that while Colorado’s Anti-Discrimination Act does not generally violate the free exercise clause, Colorado’s process of determining whether an action has violated the Anti-Discrimination Act must be conducted in a manner that is neutral towards religion. Justice Kennedy pointed to what he called “open hostility” at multiple times throughout the public hearings such as “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust” and “one of the most despicable pieces of rhetoric that people can use” in reference to using religion to deny wedding-related services to a same-sex couple.

The Court further took note that no other commissioners took issue with any of these statements as well as what it perceived as disparate treatment of bakers who refused to bake anti-same-sex marriage cakes along with religious texts. These bakers, who appeared before the same Commission as Phillips, were allowed to refuse to bake cakes with anti-same-sex marriage messages because it violated their anti-discrimination beliefs, while Masterpiece Cakeshop was compelled to by the Commission and the Court of Appeals.

The Court then segued to discuss that the Free Exercise Clause “bars even subtle departures from neutrality” and that the State cannot impose regulations that “are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment.” Justice Kennedy followed this discussion by ultimately determining that weighing the State’s interest in protecting its citizens from discrimination could be weighed with sincere religious objections by owners of public accommodations but only in a way that is neutral towards religion. In this case, the Justices did not believe that the claims were weighed in a religiously neutral way and reversed the lower court’s judgment. While ruling in this manner, the Court also felt it necessary to state “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs”, leaving the door open for further discussion on the topic, both by the Supreme Court itself and in the states.


Three separate concurrences were written, one by Justice Kagan joined by Justice Breyer, one by Justice Gorsuch which was joined by Justice Alito and another written by Justice Thomas which was joined by Justice Gorsuch.

Justice Kagan focused her concurrence on the disparate treatment between Phillips and the other bakers, who were allowed to refuse to bake cakes with messages they disagreed with. Justice Kagan further indicated that she believed that Phillips violated the Colorado Anti-Discrimination Act and that the Commission could have found that based on a religiously neutral, plain reading of the statute. However, she did not believe that the Commission was religiously neutral and therefore found for Phillips.

Justice Gorsuch, using the doctrine of strict scrutiny, determined that the Commission failed to act neutrally towards Phillips’ religious beliefs and did not satisfy the strict scrutiny test as required by the Free Exercise Clause. He also focused on what he saw as disparate treatment in bakers as previously discussed, allowing a baker to deny anti-same-sex marriage messages as a result of his religious beliefs but not allowing Phillips to decline to bake a cake which in his view was endorsing same-sex marriage due to his religious beliefs. Justice Gorsuch also focused on what he saw was a lack of discriminatory intent on the part of Phillips and determined that he brought a conclusive First Amendment claim which entitled him to judgment.

Justice Thomas first determined that the Commission violated Phillips’ free exercise rights along with the majority. He, though, went further to discuss the free-speech claim made by Phillips in his brief to the Court. Justice Thomas indicated that public-accommodation laws, like the Colorado Anti-Discrimination Act, generally regulate conduct and do not burden free-speech rights though sometimes these laws can burden free-speech rights. He further notes that “expressive conduct” can be burdened by these laws including many actions relating to the American flag. Justice Thomas found that wedding cakes communicate a message that “a wedding has occurred, a marriage has begun, and the couple should be celebrated” and further found this to be expressive conduct which Colorado could therefore not compel or restrict. He also noted that Colorado could restrict the expressive conduct if it would have punished the conduct with or without the expressive component but seeing as it would not have punished him for generally not making custom wedding cakes, that principle did not apply.


The single dissent in this case was written by Justice Ruth Bader Ginsburg and was joined by Justice Sonia Sotomayor. Justice Ginsburg noted that Colorado could protect gay persons, business owners cannot put up signs saying that they will not serve gay persons, and gay persons may be protected from indignities in an open market, all of which were stated by the majority opinion as well. Justice Ginsburg reconciled the disparate treatment by noting that the bakers who declined to make anti-same-sex marriage cakes did so as a result of the discriminatory message, without regard to the actual characteristics of the requesting person, whereas Phillips declined to make the cake as a result of the identity of the persons requesting the cake. Justice Ginsburg further did not agree that the statements of one or two commissioners could overcome the fact that Phillips refused to bake a cake for a same-sex couple, focusing on the procedural guarantees in Colorado which she believed were followed.

Possible Ramifications

The possible ramifications of this decision on future cases and on the public in general seem to be split along ideological lines, at least in the first weeks following the release of this decision. Some have taken it allow a wide license to discriminate, including a Tennessee business owner who put up a sign saying “No Gays Allowed” in the window of his hardware store. Others see the decision as narrow in scope (while perhaps not narrow in how many justices concurred in judgment), by explicitly stating that further disagreements would still need to be decided based on the facts of those individual cases. Others still see this as a “hollowing out” of same-sex marriage rights and allowing the first affirmation in a “slippery slope” leading to more widespread discrimination. While the ultimate impact of this case on anti-discrimination laws, free exercise of religion, and free speech remains to be seen, one thing that is certain is this is not the end of this conversation but merely the beginning.



Lacey Grummons, REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission, Syracuse L. Rev. Legal Pulse (Dec. 14, 2017).

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

Amy Howe, Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case, SCOTUSblog (June 4, 2018, 4:07 PM).

Mark Sherman, Supreme Court sides with Colorado baker on same-sex wedding cake, Chicago Tribune, (June 4, 2018).

Ewan Palmer, No Gays Allowed’ Sign Returns to Tennessee Store Following Masterpiece Cakeshop Supreme Court Ruling, Newsweek, (June 8, 2018, 9:43 AM).

Rachel B. Tiven, Masterpiece Cakeshop Ruling Is Not As Limited As Some Might Think, Huffington Post, (June 5, 2018, 7:05 PM).

Photo courtesy of Martha Stewart.

Medicaid Covers Treatments for Non-Binary Transgender New Yorkers

The views expressed in this article do not necessarily reflect those of the Legal Pulse Editor or the Syracuse Law Review.

Written by Cynthia Moore


On May 11, 2018, New York State Department of Health overturned a 2017 decision by an administrative judge, who upheld a Medicaid insurer’s denial of coverage for a mammoplasty procedure for a nonbinary transgender person. This decision affirmed the right to Medicaid coverage for surgeries or procedures for gender nonbinary and nonconforming residents of New York.

Gender Dysphoria as a Diagnosis

“Gender identity disorders” were first introduced in the DSM-III, a diagnostic manual authored by the American Psychiatric Association, as a psychosexual disorder, which later moved to a section on disorders manifested in infancy, childhood, or adolescence. In the DSM-IV, gender identity disorder diagnoses moved to the chapter on sexual and gender identity disorders. In the most current Diagnostic and Statistical Manual of Mental Disorders, the DSM-V, the diagnosis of gender identity disorder was removed and a new chapter named Gender Dysphoria was created. A diagnosis of gender dysphoria is required for Medicaid coverage of medically necessary treatments and procedures related to this diagnosis.

Non-Binary Gender Identity

Non-binary gender identities are generally those that do not exclusively fall within the male or female categories. Examples of these identities include: “genderqueer, gender fluid, agender, and bigender.” Those who identify within this spectrum may reject gender entirely, blend features of both, or fluctuate between the traditional roles of masculinity and femininity.


In a 2016 study, the number of transgender individuals in New York was estimated as 78,600 or .51% of the total population. Nationally, the number of adults who self-identified as transgender was estimated as 1.4 million or .6% of the U.S. population. Nevertheless, population estimates are difficult to track since they have not been included on questionnaires for the census and American Community Survey. The U.S. Census Bureau stated that it does not plan to propose this topic to Congress for the 2020 Census and American Community Survey, which may make it difficult to track statistics on Americans who identify within the transgender population.


In 2014, the Legal Aid Society, Sylvia Rivera Law Project, and Willkie Farr filed a federal lawsuit opposing a state regulation that banned Medicaid coverage for treatments and procedures related to sex reassignment. In July 2016, U.S. District Judge Jed Rakoff for the Southern District of New York decided Cruz v. Zucker in favor of the plaintiffs. The ban was repealed and the regulation was amended to require Medicaid to cover medically necessary procedures for those with a gender dysphoria diagnosis. New York was the ninth state to adopt a policy allowing Medicaid to cover gender affirmation surgery.

As a result of this decision, four academic medical centers—Mount Sinai, NYU Langone, Montefiore, and Northwell—created programs to perform these surgeries. In 2015, Medicaid covered 115 procedures and in 2016 it covered 257 procedures, marking a substantial increase in services provided.

Medicaid Denial of Coverage

In 2017, a 27-year-old non-binary transgender individual sought a procedure for a reduction mammoplasty. The patient’s doctor requested Medicaid coverage for the procedure and was denied by the plan, Healthfirst. The patient sought an appeal but the administrative law judge held that the regulation did not apply to non-binary individuals, requiring that the individual transition strictly from male to female or female to male.

Department of Health Overturns the Denial

In April, legal counsel who represented the plaintiff in the 2016 federal case sent a letter to the New York State Office of Attorney General stating that the fair hearing decision was decided incorrectly, since it violated the final judgement and order of Cruz v. Zucker. Two weeks later, the Department of Health amended the decision, noting that the 27-year-old met the requirements of the statute and the insurer should have approved coverage of this procedure. In its decision, the Department of Health noted:

“[r]equiring conformance to the opposite gender is inconsistent with the diagnosis of gender dysphoria as specified by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which specifically provides that individuals with [sic] diagnosed with gender dysphoria have a marked incongruence between the gender they have been assigned to (usually at birth, referred to as “natal gender”) and their experienced or expressed gender, and experience stress about this incongruence. Experienced gender may include non-binary gender identity. Therefore, the distress associated with gender dysphoria is not limited to a desire to just be of the opposite gender, but may include a desire to be non-binary.”

Advocates noted the importance of this decision in increasing access to healthcare for non-binary and non-conforming transgender residents of New York, particularly for those who fall below the poverty line. One 2015 survey found that transgender residents of New York were more likely to experience poverty and unemployment than the general population: 37% of survey respondents were living in poverty, more than double the national poverty rate at the time of the survey and 18% were unemployed, which was three times greater than the national unemployment rate.

This decision was made three weeks after the Trump administration expressed a plan to roll back a rule issued by President Obama, which “. . . prevents doctors, hospitals and health insurance companies from discriminating against transgender people.” If President Trump were to revoke this rule, it would apply to doctors who receive Medicaid payments, hospitals that accept Medicare plans, and health insurance companies.


Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2­–4 (2016).

Arielle Webb et al., Non-Binary Gender Identities Fact Sheet 1 (2015).

Christina Capatides, The type of transgender you haven’t heard of, CBS News (Mar. 27, 2017).

Cruz v. Zucker, 195 F. Supp.3d 554 (S.D.N.Y. 2016).

Dan Goldberg, Transgender programs flourish following New York Medicaid coverage, Politico (Dec. 12, 2017).

Hansi Lo Wang, U.S. Census To Leave Sexual Orientation, Gender Identity Questions Off New Surveys, NPR (Mar. 29, 2017).

In Historic Decision, NYS Acknowledges Gender Non-Conforming New Yorker’s Right to Health Coverage, The Legal Aid Society: News (May 17, 2018).

In the Matter of the Appeal of Redacted, F.H. No. 7510067L (St. of N.Y. Dep’t of Health, Apr. 6, 2017).

Jan Hoffman, Estimate of U.S. Transgender Population Doubles to 1.4 Million Adults, N.Y. Times (June 30, 2016).

Kenneth J. Zucker, Management of Gender Dysphoria: A Multidisciplinary Approach, in The DSM-5 Diagnostic Criteria for Gender Dysphoria 33 (Carlo Trombetta et al. eds., 2015).

MP McQueen, NY Health Dept. Affirms Right to Medicaid Coverage for Gender Dysphoria Treatment, N.Y. L. J. (May 18, 2018).

National Center for Transgender Equality, 2015 U.S. Transgender Survey: New York State Report 1 (2017).

N.Y. Comp. Codes R. & Regs. tit. 18, § 505.2 (2018).

Robert Pear, Trump Plan Would Cut Back Health Care Protections for Transgender People, N.Y. Times (Apr. 21, 2018).

Photo courtesy of WQAD.