Is Judge Denise Cote biased? An article from Fortune’s Philip Elmer-DeWitt quotes a lawyers-reviewing-judges site to suggest that she has a habit of “deciding early on who the good guy is and who the bad guy is and ruling accordingly.” It also points out that, for all her complaints about the publishers and Apple being “unrepentant,” it is routine in settlements not to admit to any wrongdoing for a number of important legal reasons.

Elmer-DeWitt also covered Cote’s response to Apple’s list of evidence it felt was “improperly admitted, excluded, or disregarded.”

In her response, Cote gave short shrift to the list, saying that she did not disregard certain testimony, that if Apple wanted her to consider call patterns from other periods they should have given her the records of those other periods, and that she drew more from records and testimony of the people actually involved with what happened rather than the expert testimony of people who didn’t actually have anything directly to do with the case. She found testimony from Google and Amazon to be credible, and felt that there had been adequate discovery about Amazon to deal with the matters at hand.

The trial to determine damages will take place in May, and will be decided by a jury rather than Cote herself. There will be another hearing on the proposed settlement with Apple on August 27th.

The question of Cote’s bias is an interesting one. If she is, it could leave her opinion vulnerable to overturn on appeal. It seemed to me that her opinion was founded on fact and carefully constructed to leave very little wiggle room, but then I’m not a lawyer, and do admit I have a bit of a bias against Apple and the publishers in this matter.

But then, as I’ve noted before, Philip Elmer-DeWitt is not exactly without a pro-Apple bias himself. And in the end, it may not matter what Cote has done in the past so much as what she did on this case. We won’t know for sure until the appeals court has its say.


  1. Apple has been having bad luck with judges lately. Judges have two primary jobs.

    1. Stay neutral and referee the lawyers during the dispute.

    2. Properly instruct the jurors.

    In the Samsung dispute the judge failed utterly and completely to instruct the jury properly and, still worse, refused to admit so afterward. In the DOJ dispute, the judge blabbed in advance that she thought Apple was in the wrong, suggesting that she was far from neutral during the trial, as that article suggests.

    Fortunately, there’s no little guy being stomped on here. Apple has the money to appeal both the decisions, so yet more millions are likely to be wasted to get these disputes right.

    Also, keep in mind the absurdity of the DOJ’s claims.

    * Amazon, which at the time the DOJ first got involved, had 90% of the ebook market and was selling popular titles below cost, a class move by those intent on destroying their competition. Yet there as been absolutely no DOJ action against Amazon.

    * Apple, having just released the iPad, had 0% of the ebook market and was hardly in a position from which to impose high prices. Also, since those who owned iPads could also get ebooks for Amazon’s Kindle app, those higher iBookstore prices would have no impact other than reduce iBookstore sales and perhaps to make iPads less appealing.

    * Even a child can see that no one can control ebook pricing with a conspiracy, a cartel or whatever. There’s probably been no market in human history that’s more amendable to small companies going toe to toe with the giants. The cost of entry is low and through online retailers, millions of copies of ebooks can be sold by small companies as easily as by the Big Six publishers.

    I’m an example. Today, I’ve been uploading print copies of My Nights with Leukemia: Caring for Children with Cancer to Lightning Source (Ingram) and Amazon (CreateSpace). But they’re print-on-demand titles so ramping up sales beyond a few hundred copies a day would be complicated. With print books, there is no way I can compete with the resources of a major publishers and their ability to do a million-copy press run.

    But later today or tomorrow, I’ll be uploading the digital versions of that book to Amazon, Apple, and Smashwords. It’s unlikely, but sales could run into the millions without the slightest supply or distribution problems. There’s no printing involved, no warehousing, no distribution and no shelf space in bookstores to be acquired. Additional copies can be created and distributed in an instant by Amazon and Apple’s huge server farms.

    Personally as an author, I’d love to see the major publishers given free reign to price their ebooks just as high as they like. The more outrageous their prices, the better my books and those of other independent authors will sell. Eventually, probably within months, the major publishers would be forced to make their prices competitive.

  2. Marilynn: Granted, the judge said she was leaning against Apple early on. However, that may not be as significant as it appears. Andrew Albanese said in his book, The Battle of $9.99:

    But near the end of the conference, U.S. attorneys asked Cote if she would offer a “tentative view” of the case before her, a practice not uncommon in U.S. courts. In fact, some judges will even share partial drafts of their written opinions in some cases.

    And judging by the opinion she wrote, at that point she had already seen most of the material used to come to that verdict, as part of the process of adjudicating the settlement talks for the publishers.

    And just because she might be biased doesn’t mean her bias isn’t in favor of the right side. 🙂

    Anyway, I expect the arguments to go on and on until such time as the appeals court and eventually Supreme Court render their verdicts. In the mean time, I’m going to keep on enjoying the schadenfreude. 🙂

  3. IANAL, and I have not read the entire opinion, but from what I’ve read of it and read about it, it seems that Judge Cote wrote the opinion in such a way that it likely rebuts most of the arguments likely to be made in an appeal to the 2nd Circuit Court. If so, and if they are strong arguments, I suspect that the Circuit Court and Supreme Court may not accept the appeal.

  4. @Michael Perry: There is nothing illegal about a company gaining a monopoly in a market legally, especially when the suppliers are basically locking most of Amazon’s customers into the Amazon ebook ecology through the use of DRM. I’m not even sure that you can show that Amazon pricing best sellers at below cost was illegal, given that other ebook and paper book sellers were doing the same thing during that time period.

    Apple was not found guilty of imposing higher prices, they were found guilty of conspiring with the publishers to raise prices and impose contracts. They were just the go-between who stood to advantage from the contracts.

    Personally, I doubt that however well written your books are, the big 6 publishers have little to fear from most self-published authors. You don’t have the connections for getting reviewed in most newspapers, trade publications, library journals, or getting placed in the big box stores (including B&N, Wal-Mart, Target, Costco). Even the niche genre publishers have limited competitive price pressure on the big 6 for the same reasons.

The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail