Apple gripes about antitrust monitoring

[John F]

Originally Posted by Prestidigitweeze

My understanding was that pwalker objected to the trend toward creative overreaching by prosecutor-enabled judges, not the consequences for Apple in particular. ...

My understanding is that he was referring/disparaging to posters in this thread. From his/her earlier post:

Obviously the "any stick to beat Apple" crowd in this thread will dismiss such views since it doesn't fit their world view, but there really is, or should be a limit on what an individual judge can do

[Prestidigitweeze]

Originally Posted by John F

My understanding is that he was referring/disparaging to posters in this thread.

I considered that an initial misstep before pwalker pursued what I thought was a more interesting line of attack, which focused on the judge's history of rulings and possible reasons for going after larger companies, and what the ruling's precedent might mean for companies other than Apple.

We've always got lionizers and vilifiers in threads like this. FJ Torres raised an interesting point about Random House making better legal decisions than Apple when facing the same sorts of charges; pwalker's counterargument seemed worth looking into simply because it introduced ideas beyond mere reactions to branding.

It's easy to be annoyed by Apple's B&D tendencies toward users, but expressing my annoyance constantly would mean allowing myself to be caught in the same Clive Barker merry-go-round of neurotic ritual as Apple's most compulsive fan bottoms (and possibly power-addicted leadership tops).

Then again, I've yet to meet an inhumanly prosperous CEO who didn't enjoy a bit of food-chain bondage.

[Greg Anos]

Lawyers are known to bill more that 24 hours in a day.

This was litigated a few years ago. It was found legal. (Surprise! Nobody here but us lawyers...)

[j.p.s]

Originally Posted by fjtorres

Assuming he bills 8 hours a day...
Most lawyers run multiple projects in parallel so billing full time to one case is not guaranteed.

But billing full time to each case might be a possibility for an uber multitasking lawyer.

[Sil_liS]

Originally Posted by Prestidigitweeze

I considered that an initial misstep before pwalker pursued what I thought was a more interesting line of attack, which focused on the judge's history of rulings and possible reasons for going after larger companies, and what the ruling's precedent might mean for companies other than Apple.

Where did pwalker focus on the judge's history of rulings and possible reasons for going after larger companies?

[Prestidigitweeze]

Originally Posted by Sil_liS

Where did pwalker focus on the judge's history of rulings and possible reasons for going after larger companies?

I thought he did in the following passages, but perhaps I gave him a Hank too much credit. I might have conflated the contents of his CNN link with what he actually said here on MR:

Originally Posted by pwalker8

[M]y issue isn't that Apple is getting whacked. . . . My issue is that this is clearly a case of what I consider a major [problem] in the US these days[:] prosecutor overreach. Basically, there is an ongoing issue where prosecutors will come up with what is referred to as a novel legal theory, find a sympathetic judge and go after a company hammer and tongs to either extract a lot of money (the reason many of the states are jumping on the bandwagon) or to notch up a big press win to further their political ambitions.

They get away with it because they tend to go after unpopular companies and most companies would rather pay the extortion[ate price] [] than risk being run out of business. . . . [T]here are always people willing to assume that a big company deserves to be beaten, no matter the facts in the specific case. While some may sneer and declare Apple[] [guilty?] whatever happens to them, the bottom line is that if you have that attitude, you give up your right to complain when the same thing happens to Amazon, or Google, or whatever company you like [that] gets picked as the ATM to be raided.

Prosecutors do it because, currently, there is no downside. Even if they lose, they just move on with no penalty. In this case, Apple is a big enough company that they can afford to fight the case and have the willingness to fight what they perceive as an injustice. I fully expect them to win in appeals. Judge Cote gets overturned frequently.

It's unusual to appoint a monitor absent certain criteria. This case doesn't meet [those] criteria. What makes this case unusual isn't Apple's actions, but rather the novel legal theory that the judge bought into. As far as I know, Apple hasn't done anything particularly unusual (or what was previously considered illegal). Apparently appointing a monitor at all in a case like this is a very unusual act, as is appointing a monitor who has the close personal ties that this person seems to have with Judge Cote. It sure seems a lot like Bromwich is trying to rack up as many hours as he can before the appeal hearings come to pass.

It does appear that what I took for allusions to a pattern of precedents might hinge on character assassination rather than research. Then again, I'm not privy to Walker's unstated motives and intentions.

[Sil_liS]

Originally Posted by Prestidigitweeze

I thought he did in the following passages, but perhaps I gave him a Hank too much credit. I might have conflated the contents of his CNN link with what he actually said here on MR:



It does appear that what I took for allusions to a pattern of precedents might hinge on character assassination rather than research. Then again, I'm not privy to Walker's unstated motives and intentions.

Okay.

[pwalker8]

Originally Posted by Prestidigitweeze

My understanding was that pwalker objected to the trend toward creative overreaching by prosecutor-enabled judges, not the consequences for Apple in particular. In later posts, pwalker seems to be saying that the problem is not that Apple is particularly fair or good but that the precedent could lead to unfair actions against other companies like Google and Amazon. He even referenced the famous Martin Niemoller quote on that subject.

Walker's issue seems to be with Cotes and similarly inclined judges and prosecutors, not with which major company deserves fewer cheerleaders than the rest. To decide whether Walker has a point, I'd have to read more about Cotes' previous decisions and whether the recriminations are justified. It's a more interesting subject to me than whether or not Apple's corporate culture is particularly self-absorbed (which corporation -- excuse me, "person" -- isn't bloodlessly mercenary in the most literal sense?).

Yep, you are reading what I mean correctly.

[pwalker8]

Originally Posted by Prestidigitweeze

I thought he did in the following passages, but perhaps I gave him a Hank too much credit. I might have conflated the contents of his CNN link with what he actually said here on MR:



It does appear that what I took for allusions to a pattern of precedents might hinge on character assassination rather than research. Then again, I'm not privy to Walker's unstated motives and intentions.

No unstated motives. Much of my opinion of Judge Cotes comes from what I found out in my initial research into the original case and if you go back to the original Apple ebook lawsuit thread some time ago, you will find the various links that I posted.

My bottom line issue is that I fail to see how a company can be accused of monopolistic practices when they aren't even in the market yet. In general, it appears that the prosecutor was unable to prove any of the normal things one most prove in a monopoly case, which is why the prosecutor introduced their novel legal theory that Apple should be held to a new standard.

According to the various lawyers who critiqued Judge Cote, she is well known for picking winners and losers very early in a case and for slanting her actions towards whomever it is she favors. It was pointed out that Judge Cote apparently wrote most of her opinion before the case was actually heard. Most of this strikes me as unusual and dangerous. When I read that she took steps such as appointing a monitor that were described as unusual in a case like that, it confirms my impression that the whole situation is very troubling. When I read that the monitor wishes to "monitor" Apple's entire business rather than just the ebook potion, then I suspect that something far beyond the pale is going on here.

[Sil_liS]

Originally Posted by pwalker8

According to the various lawyers who critiqued Judge Cote, she is well known for picking winners and losers very early in a case and for slanting her actions towards whomever it is she favors.

A trial can only be non-jury if the defendant waives the right to a jury trial. Apple chose to leave the decision entirely in the judge's hands.

[jgaiser]

Originally Posted by pwalker8

My bottom line issue is that I fail to see how a company can be accused of monopolistic practices when they aren't even in the market yet. In general, it appears that the prosecutor was unable to prove any of the normal things one most prove in a monopoly case, which is why the prosecutor introduced their novel legal theory that Apple should be held to a new standard.

Funny. I thought Apple was convicted of price-fixing, not monopoly. Actually they were convicted of advising and promoting price-fixing by working with multiple publishers, who by the way, all admitted the charges and settled with the Justice Department.

Spin away...

[Prestidigitweeze]

Originally Posted by pwalker8

No unstated motives.

I prefer not to speculate about people's unstated motives, though I couldn't be certain you'd articulated exactly the argument I'd assumed you had.

There seem to be a lot of members here (and I'm not naming names) who retain someone's initial stated opinion and then choose to respond to all subsequent posts by that individual as if they were camouflaged attempts to advance an agenda stated or implied by the early opinion.

Digressions are fine, but constant ad hominem seems a degradation of the momentum of any discussion. To respond to more reasonable posts as if they were interchangeable with a poster's initial misstep is to privilege enmity over speculative thought.

We all make mistakes and some of them are emotional in nature. Everyone loses their cool occasionally (though some of us are more practiced at losing it off-camera).

Much of my opinion of Judge Cotes comes from what I found out in my initial research into the original case and if you go back to the original Apple ebook lawsuit thread some time ago, you will find the various links that I posted.

My bottom line issue is that I fail to see how a company can be accused of monopolistic practices when they aren't even in the market yet. In general, it appears that the prosecutor was unable to prove any of the normal things one most prove in a monopoly case, which is why the prosecutor introduced their novel legal theory that Apple should be held to a new standard.

According to the various lawyers who critiqued Judge Cote, she is well known for picking winners and losers very early in a case and for slanting her actions towards whomever it is she favors. It was pointed out that Judge Cote apparently wrote most of her opinion before the case was actually heard. Most of this strikes me as unusual and dangerous. When I read that she took steps such as appointing a monitor that were described as unusual in a case like that, it confirms my impression that the whole situation is very troubling. When I read that the monitor wishes to "monitor" Apple's entire business rather than just the ebook potion, then I suspect that something far beyond the pale is going on here.

My sense is that we're out of our legal depth. I can see the logic of your argument but know of no way to test or verify its application here.

FJ Torres makes the point that everyone but Apple chose to settle and avoid being targeted -- the idea being that Cote's decisions regarding punishment are unprecedented because no other corporation has been as stupid as Apple about refusing to settle in the face of such charges.

Whether or not you think that argument is fair to Apple or relevant to the sweep of Cote's decisions, I find the idea difficult to accept -- not because Apple is necessarily in the right, but because corporations often do stupid things based on bad legal advice. If Apple is guilty of that, then I doubt they were the first to make that mistake.

And if Apple isn't the first, then I'd have to study past cases in which companies chose not to settle and compare the actions and outcomes of those to the current example.

[fjtorres]

Originally Posted by Prestidigitweeze

FJ Torres makes the point that everyone but Apple chose to settle and avoid being targeted -- the idea being that Cote's decisions regarding punishment are unprecedented because no other corporation has been as stupid as Apple about refusing to settle in the face of such charges.

Whether or not you think that argument is fair to Apple or relevant to the sweep of Cote's decisions, I find the idea difficult to accept -- not because Apple is necessarily in the right, but because corporations often do stupid things based on bad legal advice. If Apple is guilty of that, then I doubt they were the first to make that mistake.

And if Apple isn't the first, then I'd have to study past cases in which companies chose not to settle and compare the actions and outcomes of those to the current example.

1- Most price fixing conspiracies are settled because of the Prisoner's Dilema. The first to settle gets off lightly and the last gets hammered.

2- If Apple's legal counsel told them a hub-and-spoke conspiracy was not a violation of antitrust they should have been fired on the spot. Possibly disbarred for incompetence. It is a textbook example of the kind of behavior antitrust was created to prevent. My suspicion is Jobs decided he was not going to settle a second antitrust lawsuit and everybody else has been stuck trying to follow through to protect their image. Hence the legally-weak, PR-focused filings. It's all about telling the faithful they are being victimized. It's their way of overturning the table, because neither the facts nor the law are on their side.

3- Companies have refused to settle antitrust cases before. None has done well. AT&T was destroyed until all that remains is the name. Microsoft was saddled with a monitor for years, billions of dollars of ambulance-chaser lawsuits and shakedowns. Conversely, when Apple quickly settled their first antitrust conspiracy case, it got buried so quickly most people don't even know it happened and think it's a bit of meaningless trivia instead of a context-setter for the current penalties trial.

They should have not launched the conspiracy simultaneously, that was arrogant and stupid. Having done that, and having been caught, they should have settled. Even now, they have the chance to minimize the damages by accepting they crossed the line. Or at least pretend they do.
That way they get to live and conspire another day.

Antitrust is not a rap you can beat.

[Sil_liS]

I think that the basis for the different perspectives on this is the answer to the question: did Apple collude to fix ebook prices?

And the answers are:
Yes.
and
Yes, but it shouldn't be illegal.

[fjtorres]

Originally Posted by Sil_liS

I think that the basis for the different perspectives on this is the answer to the question: did Apple collude to fix ebook prices?

And the answers are:
Yes.
and
Yes, but it shouldn't be illegal.

Fair summation.
Especially since the legal system is only concerned with what is illegal at the time of trial.

Perhaps if Apple had gone for a jury trial and played for jury nullification their tactics would make sense. But they didn't and judges don't often do nullification.