New developments in Apple anti-trust trial: Apple accuses Judge Cote of bias; economists file amicus brief
March 6, 2014 | 4:22 pm
Here’s a twofer of Apple anti-trust suit stories. First, from Andrew Albanese at Publishers Weekly comes the news that a February 21 Apple filing opposing summary judgment in the damages phase has been made public, and it’s pretty clear the gloves are off. Apple is outright accusing Judge Cote of bias, claiming that statements she made in the order denying the antitrust monitor stay suggest she’s already decided what the damages should be. I wish I could find the filing; it doesn’t seem to be in PACER. I’d love to read it for myself.
I’m pretty sure this is the first time Apple has come right out with that accusation in its court filings. Apple partisans have been pointing for some time to entries on The Robing Room (a sort of Yelp for judges) accusing Cote of picking a side early on and ignoring any evidence that contradicted it. However, the lawyers making those claims could not exactly be said to be unbiased (if you lose a case, odds are you’re going to look for someone to blame other than yourself), and Apple itself hadn’t tried to make that accusation until now.
As Albanese notes, this basically ups the pressure on Judge Cote to remand the case to its originating jurisdictions for decision, or recuse herself from ruling. Apple is objecting that the class in the class action has not even been certified yet, and that Cote’s findings in the DoJ trial should not necessarily translate directly into liability in the class actions. Reply briefs are due tomorrow.
Meanwhile, on The Digital Reader, Nate reports on an amicus curae brief (PDF) filed by a pair of economists in support of Apple’s appeal. The economists, one of whom had previously testified on Apple’s behalf in the Samsung case, are supporting Apple’s argument that it was just acting in its own interest individually by making vertical contracts with the five Big Six publishers, not engaging in a horizontal conspiracy. It also favors Apple’s definition of “competition,” which refers to more different stores opening (while nonetheless eliminating price competition).
On a related note, a conference among Apple, the DoJ, and Michael Bromwich was to be held yesterday (PDF) before Magistrate Judge Michael Dolinger. It should be interesting to see what, if anything, comes out of that.