Quote:
Originally Posted by darryl
Presumably the dissenting Judge. Citation please.
|
I though you said that you had read it.
https://www.leagle.com/decision/infco20150630133
"Amazon's 90 percent market share constituted a monopoly under antitrust law. See, e.g., Am. Tobacco Co. v. United States, 328 U.S. 781, 797, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946) (characterizing as "a substantial monopoly" a market share of "over 80% of the field"); 3B Areeda & Hovenkamp, Antitrust Law ¶ 801 (3d ed.2008). Amazon's below-cost pricing was a barrier to entry by Apple in 2009, when it contemplated entry into the e-book retail market via the iPad.2 Apple I, 952 "
...
" The majority asserts that Amazon's below-cost pricing was limited to only a small loss on only a small percentage of its sales. Id. at 327 (for the Court). These observations are apparently drawn from a submission by Amazon, downplaying the anti-competitive effects of its monopoly-protective pricing. The district court did not rely on these statistics, presumably because they are misleading and self-serving: they ignore that the minority of titles comprising new releases and bestsellers naturally have an outsize impact on the industry. Accordingly, the district court found that the below-cost pricing had consequences on the market, namely that a new entrant would run the risk of losing money if it tried or was forced to match Amazon's pricing to remain competitive. Apple I, 952 F.Supp.2d at 658."
...
"Apple took steps to compete with a monopolist and open the market to more entrants, generating only minor competitive restraints in the process. Its conduct was eminently reasonable; no one has suggested a viable alternative."
Judge Jacobs, the dissenting judge does acknowledge that Amazon has not had a chance to dispute the facts in the case and that the fact that Amazon had a monopoly does not by itself imply illegal activity.
"I acknowledge that, in adducing facts found by the district court, this opinion unavoidably casts imputations on Amazon. Fairness requires acknowledgment that Amazon has not appeared in this litigation and has not had a full opportunity to dispute the district court's findings or characterizations. Moreover, the fact of Amazon's monopoly alone would not support an inference that Amazon's behavior was in any way unlawful."
However, that disclaimer itself points out that Jacobs is implying that Amazon was engaging in questionable activity.