Posted on 03/07/2016 8:00:43 AM PST by Swordmaker
Well, now that they don't have to spend as much time considering that "pesky" Constitution, they can work much faster.
And, again, what part of "Judge Côte ignored the very explicit instructions and guidance established by the US Supreme Court about vertical and horizontal participation, and the differences between Rule of Reason and Rule of Per Se distinctions that MUST BE MADE, and ruled on Apple solely by per se —obviously and deemed illegal—rather than it must be PROVED by overwhelming evidence it's illegal and not for some other reason. . . and that Apple merely has to demonstrate their participation increased competition and that the PRO-competition outweighed any anti-competition components. Before Apple became involved and broke Amazon's anti-competitive predatory pricing, Amazon had more than 90% of the eBook market. After Apple entered the market, Amazon, the big gorilla in the room, the monopolist, had only 60%!
That is prima facile evidence that there WAS INDEED MORE COMPETITION! Apple met the US Supreme Court's tests to be deemed NOT to have participated in anti-competitive corrupt practices, under US CASE LAW which has just as much force as written law under our system of jurisprudence, but Judge Côte IGNORED the law as did the two Judtices of the NY Appelate Court! We have anarchy in our justice system.
SO WHAT? You still do not grasp that prices going up is NOT evidence of price fixing, in and of itself. The continual low prices of Amazon WAS classical price fixing to control the market for anti-competition purposes. . . Amazon was doing the SAME DAMN THING WITH HARD COPY BOOKS and was driving the brick and mortar book stores out of business by selling the bread-and-butter best sellers and A-list books, which comprised 80% of the profits of such stores BELOW WHOLESALE COST! Yet the Obama Justice Department took no action because Amazon's primary owner was a huge donor to Obama and Democrats!
If you think that is a good thing, you are not a conservative.
Please show where Amazon DEMONSTRATED that the revenue of the publishers was being benefited by Amazon selling their best titles below cost. You cannot, when they were having to lay off editors and other workers and getting to the point where they were beginning to tell authors they would have to cut advances and royalties. . .and end author tours, Because the sales of HARD COVER BOOKS at the brick-and-mortar stores, which paid for the majority of all that, could not compete with Amazon's cut rate pricing of eBooks which were canabalizing hard cover books!
You truly cannot prove your contention.
When the world’s largest publishers struck e-book distribution deals with Amazon.com Inc. over the past several months, they seemed to get what they wanted: the right to set the prices of their titles and avoid the steep discounts the online retail giant often applies.
But in the early going, that strategy doesn’t appear to be paying off. Three big publishers that signed new pacts with Amazon— Lagardere SCA’s Hachette Book Group, News Corp ’s HarperCollins Publishers and CBS Corp. ’s Simon & Schuster—reported declining e-book revenue in their latest reporting periods.
http://www.wsj.com/articles/e-book-sales-weaken-amid-higher-prices-1441307826
Fine. Your LIBERAL ass can believe what you want. But for the first time in history, people and companies can do several things that are literally completely LEGAL and find themselves being hauled into court because the government declares ex post facto that the sum of those COMPLETELY LEGAL things is somehow ILLEGAL! That is novel and illogical.
Not one single thing Apple did was against the law. Not one thing. How is any business in the future to know that some standard business practice going to be later deemed to be a violation of the law by some prosecutor and LIBERAL judges ignoring plainly stated legal rules?
You probably flunked at that too.
Incidentally, they are treating eBook best sellers as if they were commodities. They are not. In fact, the publishers do not even really compete against each other because they do not even sell the same products. Book buyers buy specific authors and they do not buy based on price. If the latest John Grisham novel is not available at a low price from one publisher, they cannot go to another and buy it from them. They don't publish John Grisham novels. Same thing for Stephen King novels. His fans cannot go to another publisher and buy the same title from them. IT doesn't happen. There simply IS no price competition. NONE, Zip, NADA. It is not as if we were talking about rice, or coal, or oil, or steel, the commodities that price fixing laws were originated about which there was a problem to fix!
That's the EXPECTED RESULT of ending a year's long suppression of prices by a monopolist, in this case Amazon keeping Best Sellers and A-list eBook at an artificially low price to keep any potential competitor out of the eBook market by selling the at at least $5 per book below what they paid for them! It is perfectly normal for a suppressed price to find a new normal price when the anchors are removed from the normal market pressures.
From the Dissent by Dennis Jacobs, 2nd Court of Appeals:
"The new distribution model was implemented by several terms in Apple’s contracts with publishers: agency pricing, tiered price caps, and a most-favored- nation clause. It is conceded (by Judge Denise Cote) that none of those terms is, standing alone, illegal.. . .
The district court committed three decisive errors:
- The district court ruled (and the majority affirms) that a vertical enabler of a horizontal price-fixing conspiracy is in per se violation of the antitrust laws. However, the Supreme Court teaches that a vertical agreement designed to facilitate a horizontal cartel “would need to be held unlawful under the rule of reason.” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 893 (2007) (emphasis added). (POINT I)
- The district court’s alternative ruling under the rule of reason was pre- determined by its (erroneous) per se ruling. Thus the district court assessed impacts on competition without recognizing that Apple’s role as a vertical player differentiated it from the publishers. The court should instead have considered Apple as a competitor on the distinct horizontal plane of retailers, where Apple competed with Amazon (and smaller players such as Barnes & Noble). (POINT II)
- Apple’s conduct, assessed under the rule of reason on the horizontal plane of retail competition, was unambiguously and overwhelmingly pro-competitive. Apple was a major potential competitor in a market dominated by a 90 percent monopoly, and was justifiably unwilling to enter a market on terms that would assure a loss on sales or exact a toll on its reputation. In that connection, the district court erroneously deemed the monopolist’s $9.99 price as categorically good for competition because it was lower than cost, and because e-book prices rose after the monopoly was broken. (POINT III)
A further and pervasive error (by the district court and by my colleagues on this appeal) is the implicit assumption that competition should be genteel, lawyer- designed, and fair under sporting rules, and that antitrust law is offended by gloves-off competition. . . .
The district court’s principal legal error, from which other errors flow, is its conclusion that Apple violated § 1 under the per se rule. Having found that the publishers’ coordinated strategy was a horizontal price-fixing conspiracy, and that Apple had facilitated that conspiracy in its vertical relationship with the publishers, see Apple I, 952 F. Supp. 2d at 691, the district court drew the legal conclusion that these facts established a per se violation of the Sherman Act by Apple. This appeal turns on whether purely vertical participation in and facilitation of a horizontal price-fixing conspiracy gives rise to per se liability.
Section 1 of the Sherman Act “outlaw[s] only unreasonable restraints”; so a court weighing an alleged violation “presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful.” Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006) (quoting State Oil Co. v. Khan, 522 U.S. 3, 10 (1997)). The exception, liability per se, is reserved for those categories of behavior so definitively and universally anti-competitive that a court’s consideration of market forces and reasonableness would be pointless. Id. Traditionally, restraints that are unlawful take the form of horizontal agreements “raising, depressing, fixing, pegging, or stabilizing the price of a commodity.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940).
Among modern cases, the per se rule takes aim exclusively at horizontal agreements, because “competition among the manufacturers of the same [product] . . . is the primary concern of antitrust law.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 52 n.19 (1977). Accordingly, the trend of antitrust law has been a steady constriction of the per se rule in the context of vertical relationships.
There are many problems with this case.
As Jacobs says later in his discussion:
Collusion among competitors does not describe Apple’s conduct or account for its motive. Apple’s conduct had no element of collusion with a horizontal rival. Its own rival in competition was (and presumably is) Amazon; and that competition takes place on a horizontal plane distinct from the plane of the horizontal conspiracy among the publishers. All Apple’s energy—all it did that has been condemned in this case—was directed to weakening its competitive rival, and pushing it aside to make room for Apple’s entry. On the only horizontal plane that matters to Apple’s e-book business, Apple was in competition and never in collusion. So it does not do to deem Apple’s conduct anti-competitive just because the publishers’ horizontal conspiracy was found to be illegal per se.“[V]ertical agreements are a customary and even indispensable part of the market system” and so do not represent the same presumptive threat to competition. 11 Areeda & Hovenkamp, supra, ¶ 1902d, at 240. Even a vertical agreement designed to decrease competition among competitors does not pose the threat to market competition that is posed by a horizontal agreement, for two reasons: (1) market forces (such as countervailing measures by competitors) are categorically more effective in countering anti-competitive vertical agreements, and (2) vertical agreements are so fundamental to the operation of the market that uncertainty about the legality of vertical arrangements would impose vast costs on markets. Id. at 240-41. Such market realities are driving the evolution of antitrust law, which has “rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones.” Leegin, 551 U.S. at 888.
The present case illustrates why per se treatment is not given to vertical agreements that facilitate horizontal conspiracies. Assuming (as is uncontested on appeal) that the publishers violated § 1 per se through their coordination, Apple’s promotion of that horizontal conspiracy was limited to vertical dealings.
The per se rule is inapplicable here for another independent reason: The per se rule does not apply to arrangements with which the courts are not already well-experienced. Leegin, 551 U.S. at 887. As the government conceded at oral argument, no court has previously considered a restraint of this kind. Several features make it sui generis: (a) a vertical relationship (b) facilitating a horizontal conspiracy (c) to overcome barriers to entry in a market dominated by a single firm (d) in an industry created by an emergent technology.
As Justice Jacobs points out in his dissenting argument, Judge Cote forged NEW UNIQUE LAW (sui generis) here without any justification, going into legal terra incognita without a guide, compass, or, being who she is, a legal dolt, any idea of what she was doing . . . and it therefore requires very close scrutiny. He skewers his Colleagues on the Appellate bench for backing the idiotic usages of Law the idiot trial judge uses, and, politely, reams them a new ass.
Had the District Trial Court properly applied the Rule of REASON, Justice Jacobs argues from the RULES,
"Under the rule of reason, the initial burden rests with the plaintiffs “to demonstrate the defendants’ challenged behavior had an actual adverse effect on competition as a whole in the relevant market.” Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 506-07 (2d Cir. 2004) (internal quotation marks omitted).
In other words, Gator, for the government to get a conviction it would have been required to PROVE that competition had been HARMED by Apple's entry into the eBook market!
That would have been an impossibility. . . given that Apple had garnered 30% of the eBook market. . . and Amazon, the monopolist who had been protecting itself FROM competition by predatory pricing, had dropped from 90% market share to 60% market share and the over all market had grown by over 200%! In addition, prices were dropping in the best seller and A-list categories due to competition. Competition had definitely NOT been harmed by Apple's actions. He politely points out that the two Justices have created a CONFLICT with the 3rd District. . . which followed the US Supreme Court's rules. This case literally was CRYING OUT for the Supreme Court to Reverse. Why it did not had to be solely because Scalia, the author of the rules is now dead. . . and the Liberal know nothing Whim Justices are running wild.
Thank you for admitting that the Apple conspiracy worked to raise ebook prices.
Again, back to the words of the law:
1. Apple did engage in a conspiracy.
2. That conspiracy resulted in a contract that restrained trade.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
“As Jacobs says later in his discussion:”
Didn’t Jacob say that we should not go by the letter of the law but inject a reasonableness criteria?
Oh, you are an economist now? Just last week you were telling us all that you’re a CEO. Where’s your degree(s) from?
A degree in Economics does not exclude someone from being a CEO, idiot. I also have a degree in Business Administration with a concentration in Finance. I have posted that information numerous times. I am not the only person on FR with multiple degrees or the only accomplished person on FR. From where is none of your business.
Uh huh. Big talk. I think you’re just some loser living in mom’s basement.
I never said that eBook prices would not or did not rise. I said that overall eBook prices went DOWN as a result of the breaking of the blocking of competition because of Amazon's monopolistic blocking of anyone substantial entering the eBook market.
Again, you show your total ignorance of economics.
it is obvious you did not even bother to read the dissenting option by Justice Dennis Jacobs, or you wouldn't be making such stupid statements. He gets it and explains it from a CONSERVATIVE and LEGAL vies as well as an ECONOMIC view point.
The natural result of breaking any longstanding price fixing by a monopolist which keeps prices artificially low is that they will RISE to their natural price levels. It does not require a "conspiracy" to do it. It merely requires the entry of a competitor who is willing to break the monopoly. YOU are totally ignorant of what you are talking about and don't have a clue about economics.
You can't really be that stupid, can you? Now I know you did not bother to read Justice Jacobs' dissent.
No, Judge Jacobs did NOT say that, the SUPREME COURT of the United States sets what the LAW IS. . . and THEY established what the LETTER OF THE LAW IS. THE US SUPREME COURT SAID IT. . . With Justice Antonin Scalia writing the opinion for the majority. They not only said it, they INSTRUCTED LOWER COURTS they must use that as a criteria in all future antitrust cases! USE THE BRAIN GOD GAVE YOU! You cannot attribute to Judge Dennis Jacobs what he clearly states and attributes in law to the US Supreme Court.
What the US Supreme Court RULED in the 2007 case of Leegin, 551 U.S., which invalidates ALL CASE LAW THAT PREDATES IT, was how to determine if a particular act WAS or WAS NOT a restraint of TRADE OR NOT. . . and they said:
"“[V]ertical agreements are a customary and even indispensable part of the market system” and so do not represent the same presumptive threat to competition. 11 Areeda & Hovenkamp, supra, ¶ 1902d, at 240. Even a vertical agreement designed to decrease competition among competitors does not pose the threat to market competition that is posed by a horizontal agreement, for two reasons: (1) market forces (such as countervailing measures by competitors) are categorically more effective in countering anti-competitive vertical agreements, and (2) vertical agreements are so fundamental to the operation of the market that uncertainty about the legality of vertical arrangements would impose vast costs on markets. Id. at 240-41. Such market realities are driving the evolution of antitrust law, which has “rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones.” Leegin, 551 U.S. at 888."
The US Supreme Court required in Leegin that the Rule of Reason had to apply and that for any company to be found not guilty of restraint of trade, they merely had to show their participation INCREASED COMPETION.
The Rule of Reason, a principal of LAW, which trumps any statute, and which the US Supreme Court ruled HAD TO BE USED IN APPLE'S CASE AS A VERTICAL PARTICIPANT was ignored throughout this case. Judge Cote cannot simply re-define Apple into being a horizontal defendant by a sweep of her definitional pen! If that were permitted, then the LAW is not the LAW, and it is the the law of whim. It is whatever someone sitting on a bench says it is at the moment, and no one is safe and it cannot be relied on.
If you want to go with the "LETTER OF THE LAW," how is it that Judge Denise Cote can assess a $450,000,000 fine on Apple instead of the "not to exceed $100,000,000" fine absolutely written in the law?
I wish I had my mom still alive, but she's been dead for quite some time. YOU are an idiot, who does not have a clue about what you are talking about, not worth the bandwidth to rebut. You can't rebut my arguments and evidence so you have to denigrate me with juvenile ad hominem attacks. You believe what you want. It makes no difference to me.
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