[darryl]

Originally Posted by pwalker8

Apparently you did miss something, the idea that different judges can look at the same facts and come up with very different opinions. Having two out of three agree on something means that two of three agreed, not that the third judge's opinion is unworthy of consideration. Maybe in Australia, the judges that aren't in the majority resign their posts since they are unworthy. Doesn't work like that in the US.

Nice try for at a misdirection though.

In common law jurisdictions a majority decision decides the case, and represents the law. All lower courts in that hierarchy are bound to follow the decision, and it is often given heavy weight outside that hierarchy, sometimes even in other countries. A minority judgement is worthless as a precedent, and does not represent the law. This is not to say that a dissent, particularly a well reasoned one, has no value. Nor does it imply that a judge who is part of a minority is worthless. Sometimes a well reasoned dissent will provoke much debate, and may be influential in the precedent being overturned, either by Parliament or legislation. But unless and until this happens, it is not the law. This is the same in both Australia and the US.

Originally Posted by leebase

Correct. So while we did get judgement against Apple and the publishers, Amazon’s actions have never been considered by a court. The DOJ might well look into this.

The DOJ can choose at any time to look into this and other matters, though given the passage of time and the advent of agency pricing it may well be futile in any event. What the majority did decide quite clearly and correctly is that vigilantism is not appropriate. If you believe your competitor is engaging in anti-competitive practices you go to the Courts for your remedy. If you take the law into your own hands and yourself enter into a price-fixing conspiracy, it is no defence that you believe your competitor was breaking the law. The majority quite rightly regarded such allegations as irrelevant. The majority did consider them in passing when referring to the dissent, and made observations as quoted in one of my previous posts in this thread, which I will repeat here for your convenience:

3 Although low prices that deter new entry may simply reflect the dominant
4 firm’s efficiency, it is true that below‐cost pricing can, under certain
5 circumstances, be anticompetitive. The dissent suggests that Amazon’s pricing
6 gave it an unfair advantage, so that even if Apple had priced ebooks at an
7 efficient level (whatever that might have been), it still would not have been able
8 to enter the market on a profitable basis. But Amazon was taking a risk by
9 engaging in loss‐leader pricing, losing money on some sales in order to
10 encourage readers to adopt the Kindle. “That below‐cost pricing may impose
11 painful losses on its target is of no moment to the antitrust laws if competition is
12 not injured: It is axiomatic that the antitrust laws were passed for ‘the protection
13 of competition, not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson Tobacco
14 Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe Co. v. United States, 370 U.S.
15 294, 320 (1962)). Because lower prices improve consumer welfare (all else being
16 equal), below‐cost pricing is unlawfully anticompetitive only if there is a
17 “dangerous probability” that the firm engaging in it will later recoup its losses by
18 raising prices to monopoly levels after driving its rivals out of the market. Id. If
1 Apple and the Publisher Defendants thought that Amazon’s conduct was truly
2 anticompetitive under this standard, they could have sued under § 2 of the
3 Sherman Act. (Whether DOJ would have pursued its own enforcement action is
4 of unclear relevance given the availability of a private remedy.) Failing that,
5 Amazon’s pricing was part of the competitive landscape that competing ebook
retailers had to accept.

It did not of course decide the issue, which was not relevant to the case. But neither Apple nor any of the Publishers chose to take action against Amazon. Nor did the DOJ then. I doubt very much that this will feature significantly in any further enquiry.