Only last month, the 2nd Circuit appeals court said that anti-trust monitor Michael Bromwich could continue to monitor Apple in a ruling on Apple’s appeal of Judge Cote’s refusal to dismiss him. Today, the same appeals court issued a similar ruling on Cote’s original verdict, which found Apple guilty of price-fixing and imposed the anti-trust monitor via injunction in the first place.
The ruling was 2:1, with Judge Debra Ann Livingston writing for the majority, finding Cote’s decision was correct and the injunction was “lawful and consistent with preventing future anticompetitive harms.”
Dissenting was Judge Dennis Jacobs, who oddly enough last time around found that Bromwich’s behavior was insufficient to dismiss him. Jacobs agreed to the extent Apple did engage in a conspiracy, but felt Apple was justified in taking the action it did because Amazon was such a strong competitor and the publishers were on a different level of the supply chain than Apple and Amazon, a point of view Livingston felt “endorses a concept of marketplace vigilantism that is wholly foreign to the antitrust laws.”
That appears to be the shooting match. Judge Cote’s ruling has been upheld in full. Apple can ask for a rehearing in front of the three judges who ruled against them, an en banc hearing in front of the entire 2nd Circuit appeals court, or try to take it is the Supreme Court. Once it’s all settled for good, Apple can get started paying out the $450 million in damages that it had agreed to pay if and only if it lost its appeal.
Couldn’t happen to a nicer company.