Apple ebook Judge Denise Cote: a crusading prosecutor

[TadW]

Talking about biased media -- check this one out:

The curious case of Apple ebook Judge Denise Cote in Fortune/CNN.

But the air of unreality that permeated her earlier decision in the case -- in which Amazon (AMZN), a monopolist engaged in the predatory pricing of e-books, escaped untouched, and Apple, the new entrant in the market, was found liable for violating antitrust law -- carried over into Friday's hearing. (Transcript.)

If the attorneys for Apple and the publishers took objection to the tone of her remarks -- which seemed more appropriate for a crusading prosecutor than a fair-minded judge -- they would not be the first.

[DiapDealer]

in which Amazon (AMZN), a monopolist engaged in the predatory pricing of e-books...

Stopped reading here.

[TadW]

Here from last month, a different angle:

Apple's Ebook Trial: The Takeaway (Motley Fool):

When I wrote about Apple's ebook antitrust trial not long ago, some of the comments I received expressed incredulity that I could even contemplate an Apple (NASDAQ: AAPL) loss. Didn't I realize that the government's case was a shambles? Had I even followed the trial? The daily coverage of the trial by Philip Elmer-Dewitt (PED) in money.cnn.com was held up to me as a model of accurate, insightful reporting.

Looks like CNN has always known that the judge is not to be trusted.

But then:

Today (7/11/13) PED issued his mea culpa, after spending the evening reading through Judge Denise Cote's 160 page official Opinion & Order. He acknowledged that he had completely misread the state of the government's case, as well as Cote's attitude towards Apple. Although he admitted being mystified by anti-trust law, he nevertheless held out the hope to his readers that Cote's decision would be overturned on appeal, and of course, Apple will appeal.

It doesn't matter. CNN made up its mind.

[jersysman]

It ceases to amaze me how individuals keep spinning this to bring Amazon into this case as the bad guy. Now its time to attack the judge to try to reduce her credibility.

[teh603]

Originally Posted by jersysman

It ceases to amaze me how individuals keep spinning this to bring Amazon into this case as the bad guy. Now its time to attack the judge to try to reduce her credibility.

Pretty standard in the political arena, though. If you know your platform doesn't have a leg to stand on, go for ad hominem attacks.

[fjtorres]

They are pounding the table.

There's an old legal aphorism that goes, "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."

http://en.wiktionary.org/wiki/pound_the_table

Since the facts clearly show Apple coordinated with the publishers to fix prices (as well as tying access to the appstore to support for iBooks, an antitrust violation all by itself) the Apple-legists can't pound the facts and since the judge already addressed their legal lines of appeal in the ruling, they can't pound the law.

All that remains is to make meaningless noise.

(And, in the process convince the judge that they are unrepentant and only a structural remedy will prevent a repeat conspiracy.)

I approve.

[bgalbrecht]

That's OK. I expect the Apple apologists to be here soon enough to chime in with their views that that Cote was clearly prejudicial, and that the 2nd Circuit Court will overturn her decision soon. IANAL, so I'm curious whether there are any lawyers or law professors who have any experience with anti-trust prosecutions who have commented on the case, and if so, are they siding with the DOJ or with Apple.

[ApK]

Originally Posted by bgalbrecht

Cote was clearly prejudicial

Clearly! Notice how she did not lift a finger against the Seven Dwarfs for exploitation of their household employees and their monopoly of diamond mining.

And she failed to condemn Hitler!

[cfrizz]

Originally Posted by ApK

Clearly! Notice how she did not lift a finger against the Seven Dwarfs for exploitation of their household employees and their monopoly of diamond mining.

And she failed to condemn Hitler!

[frahse]

Originally Posted by fjtorres

They are pounding the table.

Quote:
There's an old legal aphorism that goes, "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."

I have used that myself, many times.

[Barcey]

Originally Posted by bgalbrecht

That's OK. I expect the Apple apologists to be here soon enough to chime in with their views that that Cote was clearly prejudicial, and that the 2nd Circuit Court will overturn her decision soon. IANAL, so I'm curious whether there are any lawyers or law professors who have any experience with anti-trust prosecutions who have commented on the case, and if so, are they siding with the DOJ or with Apple.

If you're interested Chris Sagers is an Associate Professor at Cleveland-Marshall School of Law.

https://www.competitionpolicyinterna...topher-sagers/

[avantman42]

Originally Posted by bgalbrecht

That's OK. I expect the Apple apologists to be here soon enough to chime in with their views that that Cote was clearly prejudicial, and that the 2nd Circuit Court will overturn her decision soon. IANAL, so I'm curious whether there are any lawyers or law professors who have any experience with anti-trust prosecutions who have commented on the case, and if so, are they siding with the DOJ or with Apple.

The only lawyer I've seen writing about the case is The Passive Voice blog. This post is probably the most relevant. He's stated in other blog posts that Apple made a mistake in not settling out of court, and "... this was a truly stupid mistake on the part of the participants in the price-fixing scheme, something any competent CEO should have identified as an obvious blunder."

I'd be interested to hear if anyone has seen a lawyer take the opposite view.

[fjtorres]

Originally Posted by bgalbrecht

...I'm curious whether there are any lawyers or law professors who have any experience with anti-trust prosecutions who have commented on the case, and if so, are they siding with the DOJ or with Apple.

Yes.
Several have been linked in the various threads here.
They are all in accord that the Judge is almost certainly *not* going to be overturned, that the ruling she wrote up is a textbook example of how to write up an appeal-proof ruling, and that the evidence in the case was so solid and the violation so blatant the case will never show up in a legal school exam because it would be too easy.

Here's a couple:
http://www.publishersweekly.com/pw/b...book-case.html

http://beldar.blogs.com/beldarblog/2...racy-case.html

And, just in case, here's the ruling yet again:
http://graphics8.nytimes.com/package...ooksruling.pdf

"It's pretty likely in my mind that Apple will appeal to the Second Circuit,” observed Christopher Sagers, a law professor at Cleveland State University who has followed the case closely. “I think it's extremely unlikely, however, that the Second Circuit would do anything except resoundingly affirm in all respects. Apple’s only meaningful hope would be to convince the court that there was a mistake of law in finding the agreement per se illegal, but I put the odds of success on that point at [virtually zero]."

As for the judge’s "fact rulings," they will be “essentially unassailable on appeal,” Sagers says. “In any case it’s very difficult to appeal factual judgments, but in this case it will be exceedingly hard because you’ve got a 160-page opinion that is extraordinarily, meticulously detailed as to the findings of fact.”

This whole fact pattern would never make a good exam question in an antitrust course in law school. It's way too easy. There's an arsenal of smoking guns. It's like no one at Apple ever heard of the Sherman Act.

[Fbone]

Originally Posted by Barcey

If you're interested Chris Sagers is an Associate Professor at Cleveland-Marshall School of Law.

https://www.competitionpolicyinterna...topher-sagers/

A quote from Mr Sagers:

The effects on consumers I believe are sort of unambiguously good, both in the sense that ebooks will continue to be cheap,

Evidently his definition of "cheap" differs from mine.

[bgalbrecht]

Thanks for the links. Most of the pro-Apple clique like to argue that Cote will be overturned because she was "clearly prejudicial", as though the only evidence she could be looking at was after the trial started, instead of the months of prep work with all of the pretrial discovery and the documentation from the publishers. I also hadn't seen the comments about the demeanor of Apple's star witnesses.

She criticized the publishers and Apple executives not only for what she clearly views as their participation in a conspiracy, but also for their lack of credibility on the stand, calling out Macmillan CEO John Sargent and S&S CEO Carolyn Reidy by name as among the most “unreliable” witnesses.

"Their demeanor changed dramatically depending on whether Apple or the Plaintiffs were questioning them,” Cote observed. “They were adamant in denials until confronted with documents or their prior deposition testimony; instead of answering questions in a straightforward manner, they would pick apart the question and answer it narrowly or avoid answering it altogether."

Of course, Steve Jobs' iPad rollout comments were pretty damning also.

Oh, and PED's mea culpa, wasn't much of a mea culpa, in my opinion. He didn't understand why Apple and the publishers were on trial instead of Amazon, and he admits that he was taking Eddy Cue's testimony and Apple's lawyers' spin at face value, and then was shocked when the judge didn't buy it. He was apologizing for taking a layman's view of the trial instead of a lawyer's view, and now he's back at the pro-Apple, anti-Amazon spin campaign.