[Barcey]

Originally Posted by pwalker8

The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. Under that ruling the Justice Department would have to prove that Apple knowing conspired to restrain trade, as opposed to a per se claim by the Justice Department, which says that Apple is guilt merely by negotiating with the various publishers. It really is the heart of the Justice Department's case and the real heart of Apple's appeal.

That's actually not what the Leegin ruling says. I'd suggest you read it.

http://www.supremecourt.gov/opinions/06pdf/06-480.pdf

The Supreme Court ruled that the rule of reason should have been applied to the Leegin case rather then just rule that vertical price maintenance is automatically illegal. It's based on the opinion that some forms of price maintenance can be beneficial to the consumer and increase competition. It goes on to explain how the rule of reason should be applied (primarily if it benefits the consumer or not) and it is very clear that some forms of price maintenance are clearly anticompetitive.

While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anticompetitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercut- ting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manu- facturers who benefit from the lower prices they offer.
Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid.; see also Posner 172; Overstreet 19–23.

Personally I don't believe that a rule of reason could conclude that Apple entering the market, removing price competition, removing retailer discounts, removing retailer ability to provide benefit programs and increasing the retail price of best sellers by 50% could be concluded as introducing competition and benefiting the consumer.

Regardless it doesn't matter because Judge Cote explained that the Supreme Court ruling indicates there are de-facto violations that are not subject to the rule of reason and that even if the rule of reason was applied, Apple didn't show the execution of the Agreements had any pro-competitive effects.

If you read the Supreme Court decision it does confirm what Judge Cote ruled.

The rule of reason does not govern all restraints. Some types “are deemed unlawful per se.” Khan, supra, at 10. The per se rule, treating categories of restraints as neces- sarily illegal, eliminates the need to study the reasonable- ness of an individual restraint in light of the real market forces at work, Business Electronics Corp. v. Sharp Elec- tronics Corp., 485 U. S. 717, 723 (1988); and, it must be acknowledged, the per se rule can give clear guidance for certain conduct. Restraints that are per se unlawful in- clude horizontal agreements among competitors to fix prices, see Texaco, supra, at 5, or to divide markets, see Palmer v. BRG of Ga., Inc., 498 U. S. 46, 49–50 (1990) (per curium).