Replies

A clarification would help.

It's a complex case that should never have been brought.

Essentially, Apple was accused of doing perfectly legal things that the DOJ said that when taken in total resulted illegal price fixing because prices went up on certain e-books, while it actually caused e-book prices in general to go down.

However, Judge Denise Cote (Liberal Democrat, appointed by President Clinton), ignored the explicit guidelines set down in dicta from the Supreme Court on just such cases to reach her judgement, which she actually announced before the trial even commenced, saying as far as she was concerned, based solely on its accusation, the DOJ had already proved its case before she heard an ounce of testimony or seen any evidence! (Judge Cote has a reputation in her district for prejudicial, pre-trial decisions in favor of the government.)

The Supreme Court dicta specifically said that if there were legitimate legal business reasons for doing something, and even if it has the effect of causing prices to rise, that lower courts were to construe such activity as legal, and specifically, that it is NOT illegal price fixing. All of that applied. Judge Cote ignored that specific directive by the US Supreme Court in which the Court explicitly outlined as how they wanted these matters handled, she can't do that, but she did.

She declared before the trial, before hearing any evidence, that she agreed with the DOJ, that Apple had conspired with the publishers (even though Apple had not met with them in concert) to "fix prices" on e-books. However, it was Amazon. . . the complaining party. . . that was using predatory pricing, something that is explicitly against anti-trust law, to prevent competition from entering the e-book market. In a non-Jury trial, Judge Cote ruled that Apple was guilty of conspiracy to illegally fix prices and anti-trust activities.

She then proceeded to appoint an attorney, a man she was living with, who knew NOTHING about anti-trust law, as a court appointed special monitor with extraordinary power, to monitor Apple's day-to-day operations to assure they did no more anti-trust activities, and ordered Apple to pay him whatever he chose to bill them. He chose $1200 an hour. He then hired another attorney who DID know anti-trust law to advise him at $1000 an hour, also billed to Apple, and both of them went on fishing expeditions through Apple's operations, which Apple vehemently objected to, demanding documents and interviews far beyond the scope of the e-books decision.

Apple appealed.

Two judges of the 2nd appellate court district (IIRC) agreed that Judge Cote had the power to do what she did, while the third was appalled at the decision, and even more appalled at his colleague's upholding of Cote's decision, citing the specific Supreme Court's dicta on the matter and calling the two other justices on his bench on the carpet. . . an almost unheard of thing to do in a judicial dissent. . . for ignoring the US Supreme Court's precedent on the issue.

Instead of asking for an en banc re-consideration of the entire district, Apple is going to the US Supreme court, because of Cote's and the Appellate court's ignoring of the Supreme Court's explicit directives on how to handle these cases.