Motion to dismiss e-book suit rejected

[fjtorres]

Originally Posted by abookreader

”At the conclusion of the e-mail, the executive urges his boss to ‘double delete’ this e-mail from his files.”

Forensic IT can recover "double-deleted" emails.
http://www.evestigate.com/Email-Forensics.htm

Nowadays that is standard practice in the discovery phase of any trial.

[Fbone]

Originally Posted by fjtorres

Read the Teleread post.

The judge hasn't made up her mind; she *is* signalling to the defense that their case is weak.

Judge Cote wrote :

In short, Apple did not try to earn money off of eBooks by competing with other retailers in an open market; rather, Apple ‘accomplished this goal by [helping] the suppliers to collude, rather than to compete independently.’

[stonetools]

The court at this point is asking the question,"Is there a legal case to be made?"
She is looking at the case in the light most favorable to the plaintiffs and assuming that the plaintiff can prove its case.
Its not suprising that the defense motion to dismiss was denied. In most serious litigation, its typically denied.
The discovery process will determine whether the plaintiff can prove its case or not.

[fjtorres]

Originally Posted by Fbone

Judge Cote wrote :

Taking both filings at face value, the judge effectively said Apple was a part of the conspiracy and thus must answer in court for its deeds.

That simple.

The phrasing hints that Apple might actually be the instigator, and was taking advantage of the gullibility of the publishers so, who knows; maybe they'll all roll on Apple.

[Fbone]

Originally Posted by fjtorres

Taking both filings at face value, the judge effectively said Apple was a part of the conspiracy and thus must answer in court for its deeds.

That simple.

The phrasing hints that Apple might actually be the instigator, and was taking advantage of the gullibility of the publishers so, who knows; maybe they'll all roll on Apple.

She didn't use the terms allegedly, suspected of, or charged with collusion.

In the end, it may not be her decision if it goes to jury.

[fjtorres]

Originally Posted by Fbone

She didn't use the terms allegedly, suspected of, or charged with collusion.

That's her way of dropping a hint that it just *might* be safest to seek a settlement.

[Barcey]

... and Simon & Schuster is the first to settle. I wonder what the settlement is.


http://news.cnet.com/8301-13579_3-57...ncol;cnetRiver

[Fluribus]

Originally Posted by fjtorres

Forensic IT can recover "double-deleted" emails.
http://www.evestigate.com/Email-Forensics.htm

Nowadays that is standard practice in the discovery phase of any trial.

That's why I always use double secret deletion and cc the Spanish Inquisition. Nobody ever expects it.

[JoHunt]

Originally Posted by Barcey

... and Simon & Schuster is the first to settle. I wonder what the settlement is.

My guess is the same as the other publishers which settled before the suit was filed.

I would bet that only Apple and Penguin will be left standing when this finally goes to trial.

[darryl]

I am not a US lawyer. However, the basic concept of a Motion to Dismiss is one familiar to so-called "common law" jurisdictions. Of course, jurisdictions each have their specific rules and applicable case law. Basically, it focuses on the Plaintiff's claim and not on any defences. To quote selectively from the relevant parts of the Judgement:

A trial court considering a Rule 12(b)(6) motion must
“accept as true all factual statements alleged in the complaint
and draw all reasonable inferences in favor of the non-moving
party.”


A court considering a Rule 12(b)(6) motion applies a
“flexible plausibility standard, which obliges a pleader to
amplify a claim with some factual allegations in those contexts
where such amplification is needed to render the claim
plausible.”

“To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.”

Dismissal is appropriate “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct.”

Basically the process involves a scrutiny of the Plaintiff's "pleadings", in this case what is referred to as the CAC, and decide whether on the facts alleged the claim is more than speculative. It will come as no surprise that cases are rarely dismissed, particularly at this level with competent lawyers on both sides and governments and large corporations as parties. Some very weak cases still survive these motions. Also, at least in some jurisdictions, defendants take the view that bringing Motions to Dismiss and the like represents a "free kick" with their clients' having everything to gain and nothing to lose. Arguments supporting such motions in these circumstances can be quite creative on occasions.

It is not safe to draw any significant conclusions from this judgment. The Judgment to my eyes shows no evidence of bias towards either side, and is clearly correct. A trial will be a different matter, where the Plaintiffs' must prove their case. I will, however, go so far as to say that based on my admittedly limited knowledge of the matter, I would much prefer to be arguing the Plaintiffs' side of the matter against both Apple and the Publishers.

[Top100EbooksRank]

A motion to dismiss is measured against a standard that does not favor dismissal. Every pled fact is assumed true and every inference is read in favor of the complainant (or plaintiff).

[Andrew H.]

Originally Posted by Fbone

She didn't use the terms allegedly, suspected of, or charged with collusion.

In the end, it may not be her decision if it goes to jury.

Actually, she did - those terms are spread liberally throughout the 55 page opinion http://gigaompaidcontent.files.wordp...der-on-mtd.pdf
A quick search gave me 25 hits on "alleged" in the opinion.

Darryl gave a pretty good explanation of the process for a motion to dismiss for failure to state a claim - which is basically a claim even if what you say is true, it's not legally actionable. Here's the standard of review from the opinion:

DISCUSSION
I. Standard of Review
A trial court considering a Rule 12(b)(6) motion must
“accept as true all factual statements alleged in the complaint
and draw all reasonable inferences in favor of the non-moving
party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir. 2007).

IOW, the court isn't *finding* that the allegations are true; it is treating the allegations as true for purposes of the motion to dismiss, including any reasonable inferences that can be drawn from the allegations.

[Fbone]

Originally Posted by Andrew H.

Actually, she did - those terms are spread liberally throughout the 55 page opinion http://gigaompaidcontent.files.wordp...der-on-mtd.pdf
A quick search gave me 25 hits on "alleged" in the opinion.

But she didn't use "alleged" in my above quote unless it was taken out of context.

I do wonder if the Judge has already formed an opinion.