Antitrust fallout: retailers sue conspirators

[pwalker8]

Originally Posted by Sil_liS

Not someone, FORTUNE. And those are permalinks, which according to Wikipedia:



It was not the decision, but a draft opinion.

Gosh, what is this link rot you mention? I think you just proved my point again.

[Graham]

Originally Posted by pwalker8

If your assumption is that she wrote a draft opinion rather than just take notes, then yes I have an issue with that. There is a reason that I referred "How We Decide" earlier. I'm afraid that your standard of proof is far, far higher than Judge Cotes' standard of proof. What exactly would be required for you to say that it is likely that Judge Cote wrote much of her opinion before the actual trial? What is the verbiage that will satisfy you? If you are looking for Judge Cote to say "Sure I wrote most of it before the trial, and you know it sure would take some major evidence before I was going to change my mind. I would rather call the only witnesses to the events liars than change it"? There is no way she would admit that. Few people will admit, even to themselves, that once they form an opinion, they are very resistant to changing it.

Straw man.

I'm not trying to prove anything. You are the one who is asserting that it has been proven that she wrote most of her final judgement before the trial.

Graham

[Sil_liS]

Originally Posted by pwalker8

Gosh, what is this link rot you mention? I think you just proved my point again.

What was your point? Previously you said:

Originally Posted by pwalker8

You actually prove my point, which is that the original article is no longer out there, just copies of it scattered around.

The articles published by Fortune are archived by Fortune.

And how are the articles in the archive different from the original?

[pwalker8]

Originally Posted by Graham

Straw man.

I'm not trying to prove anything. You are the one who is asserting that it has been proven that she wrote most of her final judgement before the trial.

Graham

No, it's not a straw man, it's a simple question. If the answer is that your mind is made up and there is no evidence that will convince you, then there isn't much point to continuing the conversation. All I can say is that I find the evidence is inline with my conclusion. If you don't think so, that's fine.

Actually, you very much are trying to prove something. You are rather obviously trying to prove that I am wrong. you said
"Do you really think that Judge Cote, given the task of reviewing all the mountains of evidence submitted for the pretrial, and given the task of presenting a preliminary opinion at the request of Apple and the DOJ, should have done this without writing anything down? "

which appears to be implying that draft was simply her writing notes. If she had actually been using the word draft in that context, then she would be guilt of very sloppy wording in her opinion, something I don't think anyone has accused her of. You also say "even if she did write a draft, that doesn't prove that it was the final opinion". Perhaps, but the fact that most of the opinion doesn't address the evidence from the trial is quite suggestive.

As I said, you seem to have a much, much higher standard of proof than Judge Cote. You seem to want a video clip of Judge Cote coming out and saying "Yes, I wrote most of the opinion before the trial" and anything else is waved away.

[pwalker8]

Originally Posted by Sil_liS

What was your point? Previously you said:

The articles published by Fortune are archived by Fortune.

And how are the articles in the archive different from the original?

Because the original url is no longer valid. My point is that links are not always valid indefinitely.

[Sil_liS]

Originally Posted by pwalker8

Perhaps, but the fact that most of the opinion doesn't address the evidence from the trial is quite suggestive.

It suggests that the bulk of the evidence was presented during pretrial.

Originally Posted by pwalker8

Because the original url is no longer valid. My point is that links are not always valid indefinitely.

But you follow the link to get to the article, and even if it isn't there you can till use the link in google to get to the article so what difference does it make?

[Graham]

Originally Posted by pwalker8

No, it's not a straw man, it's a simple question. If the answer is that your mind is made up and there is no evidence that will convince you, then there isn't much point to continuing the conversation. All I can say is that I find the evidence is inline with my conclusion. If you don't think so, that's fine.

Actually, you very much are trying to prove something. You are rather obviously trying to prove that I am wrong. you said
"Do you really think that Judge Cote, given the task of reviewing all the mountains of evidence submitted for the pretrial, and given the task of presenting a preliminary opinion at the request of Apple and the DOJ, should have done this without writing anything down? "

which appears to be implying that draft was simply her writing notes. If she had actually been using the word draft in that context, then she would be guilt of very sloppy wording in her opinion, something I don't think anyone has accused her of. You also say "even if she did write a draft, that doesn't prove that it was the final opinion". Perhaps, but the fact that most of the opinion doesn't address the evidence from the trial is quite suggestive.

As I said, you seem to have a much, much higher standard of proof than Judge Cote. You seem to want a video clip of Judge Cote coming out and saying "Yes, I wrote most of the opinion before the trial" and anything else is waved away.

No. I meant that you were asking me to present you with a straw man.

You wanted me to come up with a level of proof that you could then dismiss.

That's irrelevant. We're investigating the evidence that you say you provided, not searching for more.

You have said repeatedly that you have previously presented links to evidence here on MobileRead that proved Judge Cote wrote the majority of her final judgement in advance, accusing her of bias and pre-judging in her final decision.

We have now unearthed the links that you did provide, detailed above, and you have agreed that the main basis for your belief was the footnote in the final judgement where Cote refers to her draft opinion for the pretrial.

Fine.

You claim that this is the proof that you need, even though to make it so you have to change both the sense and the context of the words Judge Cote used.

That's OK. It convinces you. It certainly doesn't convince me, and anyone reading this thread has the links gathered together so that they can make up their own mind.

Graham

[pwalker8]

A few more tidbits with regard to the settlement and the ebook case

-The settlement is contingent on the outcome of Apple's appeal. If the ruling is overturned, Apple doesn't have to pay.

-The Justice Department filed their response to Apple's appeal two weeks ago. Apparently, they are going back to the per se argument that appears to be in contradiction to the 2007 Supreme Court Leegin ruling. Rather interesting turn there.

LINK (just so you can't come back in a couple of months and try to claim I made it all up)

http://www.businessweek.com/articles...oks-litigation

[mrscoach]

Apple lawyers would claim the moon is made of cheese if they thought it would get their clients off. I've seen other appeals cases in the news before that made me think "that's what they are going with?". It doesn't mean what the lawyers claim is exactly the truth. I don't know which way this case will go, but to me claiming you shouldn't be punished because you think someone else is doing/will do more wrong is plain stupid.
"Johnny, why did you destroy Julie's backpack?" "Because Bobby is a poopyhead and would have done it first, so I kept her from being hurt by him"

[pwalker8]

Originally Posted by mrscoach

Apple lawyers would claim the moon is made of cheese if they thought it would get their clients off. I've seen other appeals cases in the news before that made me think "that's what they are going with?". It doesn't mean what the lawyers claim is exactly the truth. I don't know which way this case will go, but to me claiming you shouldn't be punished because you think someone else is doing/will do more wrong is plain stupid.
"Johnny, why did you destroy Julie's backpack?" "Because Bobby is a poopyhead and would have done it first, so I kept her from being hurt by him"

Not sure which post, if any, you are commenting on.

[cfrizz]

Originally Posted by mrscoach

Apple lawyers would claim the moon is made of cheese if they thought it would get their clients off. I've seen other appeals cases in the news before that made me think "that's what they are going with?". It doesn't mean what the lawyers claim is exactly the truth. I don't know which way this case will go, but to me claiming you shouldn't be punished because you think someone else is doing/will do more wrong is plain stupid.
"Johnny, why did you destroy Julie's backpack?" "Because Bobby is a poopyhead and would have done it first, so I kept her from being hurt by him"

[Sil_liS]

Originally Posted by pwalker8

-The Justice Department filed their response to Apple's appeal two weeks ago. Apparently, they are going back to the per se argument that appears to be in contradiction to the 2007 Supreme Court Leegin ruling. Rather interesting turn there.

LINK (just so you can't come back in a couple of months and try to claim I made it all up)

http://www.businessweek.com/articles...oks-litigation

When did the DoJ leave that argument and how is it in contradiction to the 2007 Supreme Court Leegin ruling?

[pwalker8]

The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. Under that ruling the Justice Department would have to prove that Apple knowing conspired to restrain trade, as opposed to a per se claim by the Justice Department, which says that Apple is guilt merely by negotiating with the various publishers. It really is the heart of the Justice Department's case and the real heart of Apple's appeal.

[Barcey]

Originally Posted by pwalker8

The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. Under that ruling the Justice Department would have to prove that Apple knowing conspired to restrain trade, as opposed to a per se claim by the Justice Department, which says that Apple is guilt merely by negotiating with the various publishers. It really is the heart of the Justice Department's case and the real heart of Apple's appeal.

That's actually not what the Leegin ruling says. I'd suggest you read it.

http://www.supremecourt.gov/opinions/06pdf/06-480.pdf

The Supreme Court ruled that the rule of reason should have been applied to the Leegin case rather then just rule that vertical price maintenance is automatically illegal. It's based on the opinion that some forms of price maintenance can be beneficial to the consumer and increase competition. It goes on to explain how the rule of reason should be applied (primarily if it benefits the consumer or not) and it is very clear that some forms of price maintenance are clearly anticompetitive.

While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anticompetitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercut- ting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manu- facturers who benefit from the lower prices they offer.
Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid.; see also Posner 172; Overstreet 19–23.

Personally I don't believe that a rule of reason could conclude that Apple entering the market, removing price competition, removing retailer discounts, removing retailer ability to provide benefit programs and increasing the retail price of best sellers by 50% could be concluded as introducing competition and benefiting the consumer.

Regardless it doesn't matter because Judge Cote explained that the Supreme Court ruling indicates there are de-facto violations that are not subject to the rule of reason and that even if the rule of reason was applied, Apple didn't show the execution of the Agreements had any pro-competitive effects.

If you read the Supreme Court decision it does confirm what Judge Cote ruled.

The rule of reason does not govern all restraints. Some types “are deemed unlawful per se.” Khan, supra, at 10. The per se rule, treating categories of restraints as neces- sarily illegal, eliminates the need to study the reasonable- ness of an individual restraint in light of the real market forces at work, Business Electronics Corp. v. Sharp Elec- tronics Corp., 485 U. S. 717, 723 (1988); and, it must be acknowledged, the per se rule can give clear guidance for certain conduct. Restraints that are per se unlawful in- clude horizontal agreements among competitors to fix prices, see Texaco, supra, at 5, or to divide markets, see Palmer v. BRG of Ga., Inc., 498 U. S. 46, 49–50 (1990) (per curium).

[Sil_liS]

Originally Posted by pwalker8

The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. Under that ruling the Justice Department would have to prove that Apple knowing conspired to restrain trade, as opposed to a per se claim by the Justice Department, which says that Apple is guilt merely by negotiating with the various publishers. It really is the heart of the Justice Department's case and the real heart of Apple's appeal.

This being at the heart of the DoJ case you can't say that they went back to it as if they changed their case somewhere in the middle.

The Leegin ruling is that vertical markets are per se guilty under the Sherman anti-trust act unless the actions can be justified as procompetitive. The heart of Apple's case is that the actions were procompetitive. The DoJ didn't see it that way since the prices for the ebooks of the publishers involved in this went up.