Quote:
Originally Posted by shalym
Yes we will. I wonder what you will say if Apple loses? Will you decide that the entire appeals court is biased and in the wrong?
Shari
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You guys really don't get this stuff. This has very little to do with Apple per se, no matter how badly you want it to be. There are three things that are going on.
1) The current trend of federal prosecutors hitting up large corporations for big bucks. It's a big money maker for the federal government and the headlines set the prosecutor up for his next big gig.
2) Dispute over how anti-trust is interpreted. Prior to 1978, the anti-trust law was much looser. In 1978, the Supreme Court tightened up how the assumption of guilt worked. Unless certain standards are met, you have to prove harm. This ruling uses the previous standards.
3) How things work in the Federal court system.
Item one is why Apple was included in the charge. Apple has lots and lots of cash.
Item two is the basic legal dispute that will, IMPO, be the center piece of what the courts will look at during the appeals processes. The basic issue is that the big 5 publishing companies can not get together to determine price. If they do, they are guilty of anti-trust violations even is no harm is proven. The question in this specific case, is does the same standard apply to Apple. Under the post 2007 standard, the prosecution has to prove that both Apple knowingly conspired with the big 5 publishing companies _and_ that the consumers were harmed by it. Apple is arguing that Judge Cote applied the pre 2007 standard in her ruling and then when it was pointed out to her, did a little post decision touch up work to say it didn't matter. They are also saying that the evidence shows that they did not conspire with the big 5 publishing agencies, but rather negotiated with each in turn. (the question of if the publish companies getting together to present a united front to Amazon with regards to Agency Pricing is per se anti-trust is a different question, and one that I don't think the courts have actually ruled on)
Item three is where things get a bit murky. Basically, the way the Federal District court system works, especially in the 2nd (NYC) and 4th (Richmond Va, but for all practical purposes Washington DC), is that everyone knows everyone else. They all are on the same cocktail circuit, they have known each other for years and they know that for the most part, they are going to continue knowing and working with each other in the future. Thus, the trial judges tend to have a long lasting relationship, for either good or bad, with most of the prosecutors. In addition, the appeals judges have long time relationships with most of the trial judges, both for good and bad.
My understanding at what probably happened (suggested to me by a friend who argues cases at the federal court level) in the Apple case is that Judge Cote got peeved at Apple's lawyers when they ignored her advice to settle (this happens a lot) and then got really hacked off when Apple's lawyers suggested that perhaps she wasn't being as even handed as she should be. Most trial judges at that level (who are appointed for life, as opposed to the local trial judges who run for election), tend to be use to being the lord of all they survey and don't particularly appreciate having their failings pointed out to them, especially if the lawyer doing the pointing out is right. Thus she got her dander up and there was no way she was going to back down at that point.
In the appeals process, much will depend on which judges will sit on the appeals. Appeals are very, very different than actual trials, with different rules and standards. In general, findings of fact is left to the trial judge and most appeals judges will bend over backwards to give due deference to the trial judge with regard to finding of fact. The overwhelming majority of appeals thus turn on points of law.
So depending on who sits on the appeals, several things could happen. One is everything could be upheld and Apple continues the appeal to the Supreme Court. The next is that the appeals court could overturn Judge Cote completely and dismiss the case. The third is that the appeals court could overturn part of the decision, saying that Judge Cote failed to consider some point of law, or misapplied some point of law and return the case to Judge Cote for further consideration (this is normally what happens when a case is overturned). Last is that Judge Cote could give Apple a light slap on the wrist in the monetary sentencing part of the trial and reduce the time period of monitoring to time served and Apple decides to drop the appeal.
If the last thing is what happens, then it is likely that one of the appeals judges brokered a face saving deal that everyone could live with. We have already seen this sort of thing with the initial stay request. The longer that the appeals court holds off ruling, the more likely something like this is going on behind the scenes.
If that doesn't happen, then the first is the most likely thing to happen. This is what happens much of the time and it's been hinted at in the reports on the stay hearing. The second item happens only very, very rarely. It would be a major slap in the face of Judge Cote and from what I understand, Judge Cote is well liked enough that they simply wouldn't do that. The third thing is what happens most often when a judge has obviously screwed something up. This is what happened in the Microsoft case (though in the Microsoft case, the case was sent back to a different judge). Typically what happens then is some sort of settlement is reached without a new trial.
If it is appealed to the supreme court, then either the Supreme Court decides to hear it or they will decline to hear it. My guess is that it will hear it, because part of the appeal is that Judge Cote basically ignored the Leegin ruling of 2007 and the Supreme Court tends to hear cases like that.
In conclusion, I would say that I have no idea how it will turn out and for all practical purposes, however it is decide will have absolutely nothing to do with how various courts and judges feel about Apple. People may want this to be about Apple, but it isn't.