Well, raise your hand if you’re surprised. Any hands? Any? No? Well, that’s about what I expected. Apple has filed a request for a 30-day extension to the time it has to file a petition to have the e-book anti-trust case considered by the Supreme Court.
The reason for the extension request, which Apple waits until the second-last paragraph in its six-page document (PDF) to enumerate, is that its lawyers are so busy with other cases, including other Supreme Court cases, that the poor fellows just don’t have a spare moment to throw it together.
According to the line of reasoning it lays out in the rest of the document, Apple thinks it has a good shot at a review because two different appeal circuits have reached different decisions based on the same law. Judge Cote said the e-book price-fixing matter was so blatant that it didn’t need the “rule of reason” applied to it, in which the court considers possible extenuating circumstances; it was per se illegal, and the Second Circuit upheld that ruling this year. However, in 2008, the Third Circuit found that the rule of reason did need to be applied in similar circumstances—a vertical price-fixing lawsuit between a Mack Truck dealership and the Mack Truck company. Circuit splits like this are one of the things that make the Supreme Court more likely to take the case to straighten them out.
In 2013, Law 360 analyzed the then-potential circuit split (PDF) and thought that the Toledo Mack ruling was more in line with Supreme Court precedent, meaning that the Apple case should have had the rule of reason applied to it. However, two judges of the three-judge panel that oversaw the Apple case disagreed.
If the Supreme Court should take the case, and decide that the matter should be analyzed under the rule of reason, that’s still no guarantee that Apple will win. Judge Cote found that even if she did analyze the matter under the rule of reason, Apple would still lose, and two of the appeals court judges agreed. On the other hand, the dissenting judge thought Apple would win under rule of reason.
Either way, this last appeal is going to have to run its course before Apple can get started paying out the $450 million settlement it agreed on contingent with losing on appeal. It should be interesting to see how it all plays out.
But interesting is probably all it will be. As Nate points out at The Digital Reader, in the aftermath of the original decision, the restrictions the publishers agreed to when they settled have all expired, and they’ve all gone ahead and cut deals with Amazon and the other retailers that give them the agency pricing control they wanted legally this time. Apart from the $450 million in settlement money—a pittance compared to Apple’s overall revenue—there’s not really anything relevant to consumers left to be decided. It’s unsurprising that some people want Apple to stop throwing good money after bad and just accept the loss and get on with business.