[Sil_liS]

Originally Posted by pwalker8

A few more tidbits with regard to the settlement and the ebook case

-The settlement is contingent on the outcome of Apple's appeal. If the ruling is overturned, Apple doesn't have to pay.

-The Justice Department filed their response to Apple's appeal two weeks ago. Apparently, they are going back to the per se argument that appears to be in contradiction to the 2007 Supreme Court Leegin ruling. Rather interesting turn there.

LINK (just so you can't come back in a couple of months and try to claim I made it all up)

http://www.businessweek.com/articles...oks-litigation

The article that you quoted said (emphasis mine):

A little over two weeks ago, the Justice Department and the states responded to Apple’s appeal, writing in their brief that the “price-fixing conspiracy is per se unlawful under Section 1 of the Sherman Act, and Apple is liable for it.” They argue that rather than address the district court’s findings, Apple instead claimed it struck several separate agreements with publishers “whose only purpose was to facilitate Apple’s precompetitive entry into the ebook market. That characterization … cannot be reconciled with the evidence presented at trial, which demonstrated that Apple had conspired with the publishers to achieve their shared goal of eliminating ebook retail price competition and raising ebook prices.”

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.

Originally Posted by pwalker8

I have read it, and it does say what I said it says. Per se means that something is illegal on the face of it, you don't have to prove anything other than it happened. If the big 5 had gotten together and set book prices, that would be per se illegal. The 2007 Leegan ruling says that per se rulings do not apply to vertical markets. According to that ruling, Apple can not be per se guilty.

Yes, I am aware that Judge Cote did an after the fact hand waving to say that she would have found Apple guilty regardless. We will see how convincing the appeals courts find that.

The 2007 Leegin ruling is justified by the procompetitive possibilities that arise when there is one manufacturer that sets a minimum price because the retailers would be inclined to support other brands.

The anti-trust laws primarily are designed to protect interbrand competition from which lower prices can later result. Respondent’s argument overlooks that, in general, the interests of manufacturers and consumers are aligned with respect to retailer profit margins. Resale price maintenance has economic dangers. If the rule of reason were to apply, courts would have to be diligent in eliminating their anticompetitive uses from the market. Factors relevant to the inquiry are the number of manufacturers using the practice, the restraint’s source, and a manufacturer’s market power. The rule of reason is designed and used to ascertain whether transactions are anticompetitive or procompetitive. This standard principle applies to vertical price restraints. As courts gain experience with these restraints by applying the rule of reason over the course of decisions, they can establish the litigation structure to ensure the rule operates to eliminate anticompetitive restraints from the market and to provide more guidance to businesses.

The price fixing conspiracy didn't protect interbrand competition since the big publishers were all involved. Apple can't say that their actions were procompetitive.

The article that you quoted doesn't say that the DoJ makes the case that price fixing is per se unlawful, but that the price fixing conspiracy is per se unlawful.