Department of Justice files brief in Apple antitrust appeal, argues for upholding Judge Cote’s verdict
May 29, 2014 | 4:37 am
Publishers Weekly’s Andrew Albanese has a rundown of the latest developments in the Apple anti-trust affair. The Department of Justice has filed its brief in favor of the appeals court upholding Judge Cote’s guilty verdict. (GigaOm has some additional commentary and a Scribd link to the filing itself.) The filing says about what you would expect it to say: the DoJ summarized Cote’s findings and rebutted all of Apple’s attorneys’ arguments.
In their brief, the DoJ basically recapped their case, and argued that the prosecution did not need to meet a higher legal standard, as Apple has asserted.
"A plaintiff need only show ‘sufficient evidence to allow a reasonable fact finder to infer that the conspiratorial explanation is more likely than not," the DoJ argued. "Here, the charged conspiracy was more than merely plausible; it made perfect economic sense because Apple and the Publisher-Defendants all had a rational economic motive."
The DoJ also dismissed Apple’s argument that the price-fixing fostered competition, saying, “Complaints about ruinous price-cutting have never justified price fixing.”
But perhaps the more interesting bit of news is that Macmillan and Simon & Schuster will soon be delivering their own briefs to the appeals court. They have also filed an appeal of the Apple verdict, complaining that in requiring Apple to retain the ability to discount for five years, Judge Cote was unfairly extending the terms of their settlement because as long as one retailer could discount, they couldn’t re-impose industry-wide agency pricing.
(Some speculate that’s what Hachette is trying to impose on Amazon now in the contentious round of negotiations that has resulted in the pre-order button being removed from Hachette titles on Amazon, but Hachette claims Amazon is the one seeking better terms. Regardless, if this Hachette negotiation is any indicator, I doubt they’ll have much luck imposing agency pricing even when they do get around to being able to try it.)
As I’ve mentioned before, I find this highly amusing given that Apple originally complained that the publisher settlements unfairly punished Apple before its trial. But that’s just how it goes when contracts are involved.
I’m really looking forward to seeing some of these appeals get settled. The argument has been raging for months: either it’s an open and shut case, or Judge Cote is biased and incompetent. Preliminary cross-examinations and rulings from the appeals court seem to suggest they’re more on Cote’s side than not, but we have yet to see a substantive ruling on the merits of the judgment itself. Of course, it will probably still be a while until the court is ready to rule. I suppose until then we can bide our time watching Amazon and Hachette dance; it looks as though that’s going to take a while, too.