Antitrust fallout: retailers sue conspirators

[pwalker8]

Originally Posted by Barcey

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.



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.

I have read it, and it does say what I said it says. Per se means that something is illegal on the face of it, you don't have to prove anything other than it happened. If the big 5 had gotten together and set book prices, that would be per se illegal. The 2007 Leegan ruling says that per se rulings do not apply to vertical markets. According to that ruling, Apple can not be per se guilty.

Yes, I am aware that Judge Cote did an after the fact hand waving to say that she would have found Apple guilty regardless. We will see how convincing the appeals courts find that.

[ApK]

Originally Posted by pwalker8

Yes, I am aware that Judge Cote did an after the fact hand waving

So anything she says before trial is prejudging and biased and anything after is hand waving.
Got it.
Based on this thread, I give you a C- in spin-doctoring. Most of that grade is for persistence, cuz you sure ain't convincing.

[Barcey]

Originally Posted by pwalker8

I have read it, and it does say what I said it says. Per se means that something is illegal on the face of it, you don't have to prove anything other than it happened. If the big 5 had gotten together and set book prices, that would be per se illegal. The 2007 Leegan ruling says that per se rulings do not apply to vertical markets. According to that ruling, Apple can not be per se guilty.

It means that if Apple were being charged with vertical price maintenance with a retailer they can't be per se guilty and the rule of reason needs to be applied. That's not what Apple was charged with.

Yes, I am aware that Judge Cote did an after the fact hand waving to say that she would have found Apple guilty regardless. We will see how convincing the appeals courts find that.

It was not after the fact, it was in her final ruling.

[Sil_liS]

Originally Posted by 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

The article that you quoted said (emphasis mine):

A little over two weeks ago, the Justice Department and the states responded to Apple’s appeal, writing in their brief that the “price-fixing conspiracy is per se unlawful under Section 1 of the Sherman Act, and Apple is liable for it.” They argue that rather than address the district court’s findings, Apple instead claimed it struck several separate agreements with publishers “whose only purpose was to facilitate Apple’s precompetitive entry into the ebook market. That characterization … cannot be reconciled with the evidence presented at trial, which demonstrated that Apple had conspired with the publishers to achieve their shared goal of eliminating ebook retail price competition and raising ebook prices.”

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.

Originally Posted by pwalker8

I have read it, and it does say what I said it says. Per se means that something is illegal on the face of it, you don't have to prove anything other than it happened. If the big 5 had gotten together and set book prices, that would be per se illegal. The 2007 Leegan ruling says that per se rulings do not apply to vertical markets. According to that ruling, Apple can not be per se guilty.

Yes, I am aware that Judge Cote did an after the fact hand waving to say that she would have found Apple guilty regardless. We will see how convincing the appeals courts find that.

The 2007 Leegin ruling is justified by the procompetitive possibilities that arise when there is one manufacturer that sets a minimum price because the retailers would be inclined to support other brands.

The anti-trust laws primarily are designed to protect interbrand competition from which lower prices can later result. Respondent’s argument overlooks that, in general, the interests of manufacturers and consumers are aligned with respect to retailer profit margins. Resale price maintenance has economic dangers. If the rule of reason were to apply, courts would have to be diligent in eliminating their anticompetitive uses from the market. Factors relevant to the inquiry are the number of manufacturers using the practice, the restraint’s source, and a manufacturer’s market power. The rule of reason is designed and used to ascertain whether transactions are anticompetitive or procompetitive. This standard principle applies to vertical price restraints. As courts gain experience with these restraints by applying the rule of reason over the course of decisions, they can establish the litigation structure to ensure the rule operates to eliminate anticompetitive restraints from the market and to provide more guidance to businesses.

The price fixing conspiracy didn't protect interbrand competition since the big publishers were all involved. Apple can't say that their actions were procompetitive.

The article that you quoted doesn't say that the DoJ makes the case that price fixing is per se unlawful, but that the price fixing conspiracy is per se unlawful.

[pwalker8]

Originally Posted by Barcey

It means that if Apple were being charged with vertical price maintenance with a retailer they can't be per se guilty and the rule of reason needs to be applied. That's not what Apple was charged with.




It was not after the fact, it was in her final ruling.

Good lord, almighty. Are you so eager to declare me in error that you don't even bother reading what is said?

I said "The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. ..."

You replied "hat'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. ..."

What exactly do you think per se guilty is? It means automatically illegal.

The Justice Department maintained that by offering the publishing companies agency pricing, i.e. the publishing companies set the price" along with the most favored nation clause, "i.e. you can't sale the book for less than you change here", Apple was guilty of violation of the Sherman Anti-trust law. In their filing with the appeals court, they once again asserted that this behavior was a per se violation. It is fairly clear. What exactly do you think Apple is being charged with?

[TimW]

Originally Posted by pwalker8

Good lord, almighty. Are you so eager to declare me in error that you don't even bother reading what is said?

I said "The Leegin ruling basically says that vertical markets can not be found to be per se guilty under the Sherman anti-trust act. ..."

You replied "hat'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. ..."

What exactly do you think per se guilty is? It means automatically illegal.

The Justice Department maintained that by offering the publishing companies agency pricing, i.e. the publishing companies set the price" along with the most favored nation clause, "i.e. you can't sale the book for less than you change here", Apple was guilty of violation of the Sherman Anti-trust law. In their filing with the appeals court, they once again asserted that this behavior was a per se violation. It is fairly clear. What exactly do you think Apple is being charged with?

When I read Judge Cote's opinion, I don't see this. She writes that Apple's actions were illegal by rule of reason as a vertical price-fixing conspiracy but could also be said to be per se illegal as a horizontal price-fixing conspiracy. She never says vertical price maintenance is per se illegal. Apple could possibly have room to argue that they weren't a horizontal player but I don't see them successfully arguing that they weren't liable by rule of reason as a vertical player. The appellate court doesn't seem terribly impressed, from what I can see.

[pwalker8]

Originally Posted by TimW

When I read Judge Cote's opinion, I don't see this. She writes that Apple's actions were illegal by rule of reason as a vertical price-fixing conspiracy but could also be said to be per se illegal as a horizontal price-fixing conspiracy. She never says vertical price maintenance is per se illegal. Apple could possibly have room to argue that they weren't a horizontal player but I don't see them successfully arguing that they weren't liable by rule of reason as a vertical player. The appellate court doesn't seem terribly impressed, from what I can see.

The appellate court hasn't ruled on it, or held hearings yet, so it's pretty hard to say if they are impressed or not. Perhaps you are thinking of the stay hearing. The stay hearing had 3 judges, who may or may not be hearing the case on the appeal.

[TimW]

Originally Posted by pwalker8

The appellate court hasn't ruled on it, or held hearings yet, so it's pretty hard to say if they are impressed or not. Perhaps you are thinking of the stay hearing. The stay hearing had 3 judges, who may or may not be hearing the case on the appeal.

The fact that the appellate court was willing to let the damages trial go forward was not a hopeful sign for Apple. I doubt it was a coincidence that Apple decided to settle the damages case, pending the outcome of the appeal. Then there was the statement made by Judge Gerard Lynch, one of the three judges on the appeals panel:

Maybe if [Apple’s executives] had spent some of their very valuable time keeping the company from violating antitrust laws, perhaps they wouldn’t be in this position.

http://www.teleread.com/chris-meadow...rship-dispute/

[mrscoach]

I was commenting on your post and link, pwalker8.

[pwalker8]

Originally Posted by mrscoach

I was commenting on your post and link, pwalker8.

ok. Not sure I see the connection. I said two things, first that the settlement was contingent on the outcome of Apple's appeal and second the Justice Department's response to Apple's appeal. Neither had anything to do with Apple's lawyers or Johnny destroying Julie's backpack.

Certainly, lawyers say all sorts of thing to get their client off, though they would be open to sanctions if they are caught in an out and out lie. Lawyers are considered officers of the court and as such have certain responsibilities.

As far as I know, Apple's appeal makes no claims that Apple should get off because someone else is doing something wrong. Apple's appeal is basically that they did nothing wrong and that Judge Cote misapplied the anti-trust law. They also throw in a couple of other things (because you never know what will stick with a particular judge), but I would imagine that the appeal will come down to this.

[mrscoach]

pwalker8, you commented that the whole per se thing was against a Supreme Court ruling (ensuing discussion in this thread). You threw it out as a fact, when it is what is being claimed by fruity lawyers in the appeal. The sideshow of Johnny was to show how ridiculous Apple's claim is. They didn't want Amazon to hurt consumers, so they did it first.

[pwalker8]

One can agree or disagree with the idea that Judge Cote misapplied the Leegin ruling with regards to per se Anti-Trust, but it's hardly fruity.

[mrscoach]

Fruity, as in apple is a fruit. It wasn't a judgment about anyone our anything, just a word play joke. I'm sorry you did not recognize my play on words for what it was. I know I'm not the first to say it.

[eschwartz]

Originally Posted by mrscoach

Fruity, as in apple is a fruit. It wasn't a judgment about anyone our anything, just a word play joke. I'm sorry you did not recognize my play on words for what it was. I know I'm not the first to say it.

FWIW, I definitely recognized it.