Apple gripes about antitrust monitoring

[tubemonkey]

Originally Posted by Ralph Sir Edward

...and the threat that if they were found guilty of another anti trust violation, the company would have to be broken up into multiple companies?

I say split Apple in two (hardware, software) and rename it. Apple Cider for hardware and Apple Sauce for software.

[fjtorres]

As has been pointed out previously, and repeatedly, the DOJ chose to file only a civil suit instead of going with a criminal case for say racketeering, which might actually have fit if thry were really out to "get them".
In civil antitrust cases, the judge looks at the facts, tries to get both sides to settle the dispute (which even MacMillan decided to do) and, failing that, issues a finding of facts with a verdict favoring one side of the other. The penalty that follows is tailored to satisfy the demands of the plaintiff, in this case, the DOJ.

The process by now is pretty formalized and there is little room for bias to creep in. The only place where the judge exercises unfettered judgment is in the findings of fact and the publicly available evidence makes it clear the ruling is both appropriate and unavoidable.
In antitrust cases, "Yes, but..." equals "Yes."

For the remedies, her ruling was constrained by DOJ requests; theoretically she *could* have applied any relevant remedy, above and beyond DOJ requests, but she didn't. Which argues against bias. (And if she was really looking for publicity, initiating perjury charges against the witnesses that tried to lie in her court would have bern more effective than giving the DOJ 80% of what they asked for.)

As her reply to Apple's filing said, if Apple has a problem with the remedies, they need to take it up with the DOJ. As the winners of the trial, they call the shots now. They can scale back the penalties if they see compliance or ask for escalation if they don't see cooperation and progress. At that point the judge can grant or deny the changes the DOJ seeks based on the progress reports she gets.

Court filings on the monitor's behavior are literally a waste of the court's time. And this particular court has seen a lot of time wasted on irrelevancies. That nobody has been cited for contempt shows a great deal of restraint.

[Sil_liS]

Originally Posted by fjtorres

The DOJ made it clear in their filings they were not looking for the broadest, harshest punishment, nor even a true restoration of the status quo ante, which is what antitrust usually prescribes (hence the precedents where companies get broken up). All they asked for is for Apple to stop conspiring. Since Apple refuses to even pretend they won't do it again, the least of the available penalties was monitoring.

I don't actually see the monitoring as a punishment. Companies are supposed to have antitrust compliance policies. Apple's policies didn't work. They have to be changed. Usually, a company in this situation would agree to be monitored, but Apple doesn't agree to the verdict. If they agree that the policies need to be changed, they agree with the verdict.

Which is why we have the present situation: Apple can't be trusted to manage the situation on their own when they insist that there was no antitrust violation to begin with, so a monitor is necessary. Since they couldn't come to an agreement with the DoJ regarding monitoring, the judge had to appoint someone.

[fjtorres]

Originally Posted by Sil_liS

I don't actually see the monitoring as a punishment. Companies are supposed to have antitrust compliance policies. Apple's policies didn't work. They have to be changed. Usually, a company in this situation would agree to be monitored, but Apple doesn't agree to the verdict. If they agree that the policies need to be changed, they agree with the verdict.

Which is why we have the present situation: Apple can't be trusted to manage the situation on their own when they insist that there was no antitrust violation to begin with, so a monitor is necessary. Since they couldn't come to an agreement with the DoJ regarding monitoring, the judge had to appoint someone.

I agree that monitoring isn't much of a punishment considering the harm done to epub vendors but there really aren't many options in precedent; even a $1B fine or more is trivial to a company with Apple's financials. Forcing out the cheating execs isn't an option for DOJ--that decision belongs with the Apple board--and forced divestiture or criminal charges are more likely as fallback options to be invoked if all else fails.

Monitoring has the virtues of precedent and forced transparency, which can bring to light further ongoing violations. In which case either forced divestiture or criminal charges might become viable options. Which might explain the foot-dragging; maybe its just arrogance, but maybe it's Apple trying to keep the skeletons buried.

Antitrust enforcement is a process and in Apple's case it is just beginning.

[kennyc]

Originally Posted by tubemonkey

I say split Apple in two (hardware, software) and rename it. Apple Cider for hardware and Apple Sauce for software.

Ohh. 'split' .... I thought you said 'spit'

[fjtorres]

$1000 an hour lawyer?
How about a $1200 tutor?
http://t.nbcnews.com/business/meet-t...our-2D11733545

Nathaniel Hannan, a 33-year-old Indiana native, went to Notre Dame and got his masters at Oxford in philosophy and geology before becoming a high school teacher in Washington, D.C. He loves to teach and has a gift for communicating.

But today, instead of working for a school, Hannan tutors the children of wealthy families. And he makes up to $1,250 an hour.

"It's different clients, but the same business," he said.

Actually, it's a different business entirely—and it's growing rapidly. While much of the American education system is struggling with tight budgets, overcrowded classrooms and low teacher pay, the tutor economy is booming.

Some markets will bear some rather...interesting...salaries.

[Sydney's Mom]

How Apple NOT get a monitor? To this day, they insist they did nothing wrong, so how could they be trusted to change their behavior?

Given that the Judge found Apple execs less than truthful, I don't know what kind of legal advice they have been getting. This screamed settlement.

[pwalker8]

Originally Posted by fjtorres

That is what MFN clauses do: they set a common minimum price.

In this case, the publishers, being the sellers of record, agreed not to sell ebooks any cheaper than at iBooks. Through the *combination* of Agency and MFN, Apple literally got to set Sony, Nook, and Kobo's prices. And the DOJ took exception to the combination, which is why they took pains to point out their beef was with this specific instance of Agency pricing, not the concept itself.

Agency+MFN = illegal price fixing.
5 Publishers coordinating through Apple to fix prices simultaneously = conspiracy.
Conspiracy + illegal price fixing = a world of antitrust hurt.

Fully documented.
Open and shut.

No matter how they try to muddy the waters or spin it, those facts are literally beyond legal dispute.

MFN clauses are both legal and reasonably common.

http://us.practicallaw.com/resource/8-382-3637

http://www.mintz.com/newsletter/2012...AFR/index.html

What Judge Cote has done is taken a previously legal act and declared it illegal, with no supporting changes in legislation. One of the primary functions of the notion of rule of law is that a person should have a reasonable expectation of knowing in advance if an action is legal or illegal.

[jgaiser]

Originally Posted by pwalker8

MFN clauses are both legal and reasonably common.

Do you *really* not understand that Apple was convicted of price-fixing?

They facilitated price-fixing with multiple publishers. It has *nothing* to do with MFN.

[Graham]

Originally Posted by jgaiser

Do you *really* not understand that Apple was convicted of price-fixing?

They facilitated price-fixing with multiple publishers. It has *nothing* to do with MFN.

It was the combination of a coordinated move to the agency model and the MFN that meant this was price fixing.

Neither in themselves are illegal.

Graham

[fjtorres]

Originally Posted by Graham

It was the combination of a coordinated move to the agency model and the MFN that meant this was price fixing.
Graham

Exactly.
It was a *conspiracy* conviction.
The very definition of conspiracy says that the crime is in the coordination.

All the pieces of this crime by themselves are legally tolerable, individually, but assembled as they were, with a stated intent to *raise* prices on consumers, makes for an abuse of market power. Guilty, guilty, guilty.

It is not unlike building a pipe bomb: all the pieces can be legally obtained and owned but the moment you assemble it you are guilty, guilty, guilty. You don't even have to actually deploy it to be guilty, whereas Apple and flunkies most definitely deployed their anti-competition bomb. And the bomb did real harm to real people, both consumers and competitors.

This is no witch hunt, it is an attempt to restrain a very big rogue operator without shooting it. If the attempts continue to fail, they msy have to bring out the big guns.

[kennyc]

Originally Posted by fjtorres

...

This is no witch hunt, it is an attempt to restrain a very big rogue operator without shooting it. If the attempts continue to fail, they msy have to bring out the big guns.

Or



which is probably the way pwalker is thinking it is.

[John F]

Some more news?

"Apple seeks removal of court-appointed antitrust monitor"

http://news.yahoo.com/apple-seeks-re...1--sector.html

[afv011]

Originally Posted by John F

Some more news?

"Apple seeks removal of court-appointed antitrust monitor"

http://news.yahoo.com/apple-seeks-re...1--sector.html

[pl001]

Apple is like a spoiled kid who ignores the fact that he got caught and now must face the consequences. They are in no position to dictate terms. At first I thought they were just being arrogant, but now I am starting to wonder if they are being so belligerent because they have more to hide.