[PatNY]

Originally Posted by pwalker8

My basic understanding is that the main chink is the per se violation. Over the last twenty years, the Supreme Court has consistently said that per se only applies to horizontal not vertical. That is to say, while it may be a per se violation for several publishing firms to get together and discuss prices, it is not a per se violation for Apple to discuss prices with a publishing firm or multiple publishing firms. Thus Jobs discussion a price point with Murdock is _not_ a per se violation (even if those particular discussion were not rendered moot when Apple went with the agency pricing). Cote appears to have dismissed all of that with a wave of her hand.

To the contrary, Cote addressed exactly why Apple should be judged as more than just a vertical player (bold emphasis mine):

Cote:

"While vertical restraints are subject to review under the rule of reason, Leegin, 551 U.S. at 907, Apple directly participated in a horizontal price-fixing conspiracy. As a result, its conduct is per se unlawful. The agreement between Apple and the Publisher Defendants is, “at root, a horizontal price restraint” subject to per se analysis."

It doesn't matter that Apple was a vertical partner of the publishers. Apple took on an additional role as a horizontal conspirator. That is the key to Cote's ruling. And while discussing price points with a publishing house or multiple houses is not a per se violation, acting to orchestrate price fixing among multiple companies certainly is. So, of course, it's OK for Jobs or Eddy Cue to have discussed prices with Murdoch. They just can't also tell Murdoch that all the publishers need to act as a GROUP, and then go serve as the go-between for the group, assuring each publisher who was on board and how many had bought into their plan. That is what got Apple into big trouble.

My understanding is that for a violation to have occurred by Apple, they have to have knowingly entered into a conspiracy with the publishers, and no, offering each publisher the same contract is not proof of a conspiracy.

Knowingly entering into a conspiracy with the group of publishers is exactly what they did. In fact they orchestrated it. So, again, simply agreeing to a vertical price agreement with a publisher wasn't the big problem. It was their other behavior.

As I've said before, she has been overturned a number of times, even though she shows this level of detail in most of her judgments.

Is that really a persuasive argument? What federal judge hasn't been overturned a number of times? There are none.

As I mentioned before, most of the legal opinions that I've read are split. Some say she made some serious errors in her judgment and will certainly be over turned,

Perhaps you'd like to share with the rest of us such an optimistic prediction from a sound legal mind or legal website by giving a link? Even if it is a short analysis/opinion? I haven't seen one yet, and am curious what the reasoning would be. I'm sure others are too.

--Pat