Apple gripes about antitrust monitoring

[pwalker8]

Originally Posted by Ralph Sir Edward

No offense, but your response sounds like an Apple fanboi's "Apple can do no wrong, no matter what". The US law and it's implementation is clear. Every person and organization is required to follow it, whether they agree or not. This is the issue. Apple was found guilty of a charge. The punishment was not stayed until after the appeal. Both the punishment and the refusal to stay were within the the sentencing constraints of the crime (sic) that Apple was found guilty of. Therefore the judge did not exceed her authority. The guilty do not get to determine what punishments are applied to a case, they cannot pick and choose the punishments. This is true for any person or organization before the bar in the US. So why is Apple any different? To me, this is the ultimate question.

All I can say is that if you think that US law and it's implementation is clear, you are clearly not a lawyer and haven't had much dealings with them. With the law, things are rarely as cut and dried as you seem to think it is. Many think this will go to the Supreme Court because Judge Cote has broken new ground with regards to anti-trust law and taken a very different interpretation of the law than previous cases. For those who are actually interested in the legal issues, I would recommend Robert Bork's The Antitrust Paradox. The book is supposed to be the most cited book on anti trust. It's actually quite readable, Bork was a very good author in that regard. Judge Cote is basically going against the 2007 Leegin Creative Leather Products, Inc v PSKS, Inc Supreme Court decision. The real question is will the appeals courts agree with her rational for doing so.

[SteveEisenberg]

Originally Posted by bgalbrecht

And suggesting that Judge Cotes has a conflict of interest for appointing a former colleague of hers as the monitor (one who has been a monitor in several other cases not related to her, albeit not in the field of anti-trust) by using the phrase "good buddy of hers" is not an ad hominem attack?

And ad hominem attack on a public figure is hardly the same as one on someone on the board.

Originally Posted by pwalker8

Most reputable lawyers actually tend to be quite honest and upfront with clients as to the likelihood of success.

And disreputable ones do not.

The question then becomes how easy it is to find a reputable lawyer.

An unimportant point, yes, but I don't want anyone thinking I'm your fanboy

[Sil_liS]

Originally Posted by pwalker8

Yes, I know that calling me an "Apple fanboi" lets you ignore the actual issues in the case and dismiss them out of hand (it's called ad homimem, by the way. A time honored rhetorical device). Yet, the issues remain. We will see what the appeals court has to say.

Well you should be able to recognize this time honored rhetorical device since you used in your first post on the thread.

Originally Posted by pwalker8

Looks like the national press is picking this up.

Headline - Apple's Star Chamber - An abusive judge and her prsecutor friend besiege the tech maker.

http://online.wsj.com/news/articles/...pinion_LEADTop

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. It will be interesting to watch the appeal process. Apparently, Cote is starting to back pedal a bit on her decree.

[pwalker8]

Originally Posted by bgalbrecht

And suggesting that Judge Cotes has a conflict of interest for appointing a former colleague of hers as the monitor (one who has been a monitor in several other cases not related to her, albeit not in the field of anti-trust) by using the phrase "good buddy of hers" is not an ad hominem attack?

I use the (perjorative) term fanboi because you seem to be taking every argument the Apple lawyers make at face value, argue that she's biased because she probably started working on the decision before the oral testimony was complete, even though she probably had already read all the evidence that showed the company’s actions were a per se violation of antitrust law before the oral testimony started, argue that providing 300 pages of documentation and interviewing 4 Apple employees and 7 Apple lawyers was egregious and spending 120 hours (if I got the math right) was a sign of bias and overreach by the monitor and a sign of incompetence. (I may be conflating some of your arguments with Steve Eisenberg's, if so, I apologize). I suppose it's possible that you're not a fanboi and you just don't believe that the government has any business trying to enforce anti-trust legislation and therefore anything the government and its agents do here is wrong.

And yes, we will see what the appeals court will do. I think Apple will fail, although I will admit I am biased, I've wanted them to fail from the day the case was filed.

Actually I don't take Apple's every argument at face value. What I do look at is, does the facts support their arguments. Quite a few lawyers have pointed out that Judge Cote tends to pre-judge cases. The complaints about that go back quite a few years, well before the Apple case.

When I see comments about her such as "Judge Cote predetermines outcome of the case and consistently rules accordingly even in contradiction to her own orders. She also lacks appropriate judicial temperment and decorum " in a comment dated from 2009, then Apple's complaint comes across as more possible.

A more important thing to keep in mind is that Apple _isn't_ appealing based on Judge Cote pre-judging the case, that is for the most part just an internet talking point. Apple is appealing based on the idea the Judge Cote mis-applied the law and did not follow precedent.

When Apple complains that Bromwich is over charging them and I see reports that his previous monitoring rate was $495 per hour just 5 months ago, twice what he is charging Apple, then that raises my eyebrow.

While some of you want the government to stick it to Apple, I remember the Microsoft anti-trust case from some years ago. A lot of people took the same view back then, any stick to beat Microsoft with. My problem with it was that it set a precedent that has gotten high tech companies to use the Justice Department as a club to beat their competitors with. Now, high tech companies routinely spend much of their time in court, suing each other over everything in the Sun. IMPO, this is a very bad trend.

Oh, and just to be clear, I'm not an Apple fan boy. As I have pointed out several times, I buy my ebooks at Amazon, not Apple. I think Apple has a lousy ebook store. While I personally think that any monopoly that isn't supported by the government will eventually fail, the Sherman anti-trust act is the law of the land and has been such since the late 1800's. What I object to is a combination of Amazon using the Justice department as a club against it's competitors and the change of how anti-trust is determined. If it holds up, then there will be a lot of companies that are open to such charges.

[pwalker8]

Originally Posted by SteveEisenberg

And ad hominem attack on a public figure is hardly the same as one on someone on the board.




And disreputable ones do not.

The question then becomes how easy it is to find a reputable lawyer.

An unimportant point, yes, but I don't want anyone thinking I'm your fanboy

Actually, pointing out that Judge Cote appointed a long time friend of hers (what else would you call it when she says that after working with him for two years, she stayed in touch with him for eight years after he left?) might be a conflict of interest isn't an ad hominem attack. Nor is pointing out that many lawyers have reported that she tends to pre-judge cases.

[BuddyBoy]

Originally Posted by pwalker8

Actually, pointing out that Judge Cote appointed a long time friend of hers (what else would you call it when she says that after working with him for two years, she stayed in touch with him for eight years after he left?) might be a conflict of interest isn't an ad hominem attack. Nor is pointing out that many lawyers have reported that she tends to pre-judge cases.

Well, provided both statements are stipulated facts, I'd agree they fail the test as ad hominem, yet despite several requests, you have not provided any credible link or proof to back up these facts.

Regarding her "friendship" with the monitor, I think you will find the lawyers as a professional group, tend to maintain and cultivate professional acquaintanceships more so than other professions, perhaps as a carry-over of the earlier prohibitions on advertising and promotion as a class.

I'm not in the legal fields, but I've been in the same industry for over 20 years and though I've known and recommended people from within a moderate circle of skilled professionals for the last 15 years, I'd be hard pressed to call any of them "friends." I can respect their skills, reliability and honesty, but it doesn't mean I want to go on a road trip with any of them!

Of course, there is a certain irony in you complaining about ad hominem attacks considering your first post on this thread:

Originally Posted by pwalker8

Obviously the "any stick to beat Apple" crowd in this thread will dismiss such views since it doesn't fit their world view...

[bgalbrecht]

Originally Posted by pwalker8

Actually, pointing out that Judge Cote appointed a long time friend of hers (what else would you call it when she says that after working with him for two years, she stayed in touch with him for eight years after he left?) might be a conflict of interest isn't an ad hominem attack. Nor is pointing out that many lawyers have reported that she tends to pre-judge cases.

So you never keep in touch with former colleagues? You've never recommended a former coworker for a job? You've never known a manager who has hired a former coworker or subordinate? Sure, she wrote a recommendation for him, but how do you know he didn't approach his supervisors at all of his previous jobs and asked them all for recommendations? I call it an ad hominem attack because it's attempting to cast aspersions on her for what I see as a normal case of someone hiring someone she's worked with in the past.

If the lawyers reported that she tends to pre-judge cases are from The Robing Room, I'd also like to point out that there are several other lawyers reporting that she's a fair-minded no-nonsense judge who reads all the material and means business. Again, you're arguing unsubstantiated, unquantifiable claims which are attacking her, not the evidence, case law, etc. stated as the justification for her decision in the case.

[BuddyBoy]

Originally Posted by pwalker8

Oh, and just to be clear, I'm not an Apple fan boy. As I have pointed out several times, I buy my ebooks at Amazon, not Apple. I think Apple has a lousy ebook store.

Truthfully, I don't think many people purchase their ebooks from Apple, even folks firmly entrench in the Apple ecosystem. "Fanboi" usually has more to do with someone's presupposed bias and apparent wilfull disregard of fairly obvious facts that put the object of their affection in a negative light.

I'm a heavy Apple user, and have been since the early 1980s. But I'm no fanboi, being quite open with my criticism. My delight in their products has often been tempered with my anger at their arrogant, paternalistic policies, and their spoiled-brat, entitled behaviour.

Can I ask you, pwalker, though you have indicated you purchase no books through Apple, given the level of your engagement on this issue, do you by chance have any pecuniary interest in Apple? Are you an employee, contractor, sub-contractor, shareholder, etc? If not, are you, like me, well entrenched in the Apple ecosystem, with one or more apple products?

[Sil_liS]

Originally Posted by pwalker8

Actually, pointing out that Judge Cote appointed a long time friend of hers (what else would you call it when she says that after working with him for two years, she stayed in touch with him for eight years after he left?) might be a conflict of interest isn't an ad hominem attack. Nor is pointing out that many lawyers have reported that she tends to pre-judge cases.

This is your reasoning behind calling them long time friends, good buddies, etc.: they stayed in touch for eight years after he left, while both still practiced law?

[crossi]

It's called networking. Business people, lawyers, ect do a lot of it. Keeping in touch with acquaintances, business contacts, past and present coworkers is just good business. I still get christmas cards from the realtor I bought my house from. Doesn't mean she's a "good buddy" of mine.

The recommendation must mean she knows his work and thinks he's ethical and competent. Would you expect her to hire an unknown or someone she thinks is uncompetent and had refused to give a recommendation to?

[PatNY]

Originally Posted by pwalker8

I suspect the strongest motivating factor is that Apple really does believe they are innocent and will eventually win. Otherwise, Apple would have settled long ago without having to admit guilt.

An unwillingness to admit to guilt is often a by-product of simply a great abundance of arrogance and money. We know that in the U.S., great wealth can often buy the guilty a “get out of jail free” card. No one knows what all the motivating factors are on Apple’s side. My guess is that they at least know they did the things as charged. What they are banking on is exploiting small holes or ambiguity within the current law to get off the hook.

I seriously doubt this is a situation where a law firm is trying to milk Apple for lots of money. Apple has a pretty good staff of lawyers who can give Apple legal advice to keep them from being taken to the cleaners like that.

I think all law firms try to “milk” situations such as this -- whether they are working for a big company like Apple or the government … especially if the client has extremely deep pockets. “Being taken to the cleaners” implies trickery or deceit, and that’s not what I said is going on here. As I said in my previous post, “Apple is likely all too willing to make their lawyers rich and contribute to their retirement and children’s college funds. They are a willing partner in what I think will end up to be meaningless litigation.”

As far as I can tell, 3rd party lawyers who comment on the case (as opposed to Apple fans or Apple bashers) seem pretty much split on the matter. Some say that Apple has a good case for getting the judgement overturned, while others say they don't.

Can you provide a link to one detailed opinion from a lawyer or respected legal website that says Apple has a good chance of succeeding on appeal, as opposed to the slimmest of chances? By detailed, I mean at least a reference to the specific parts of the law or the case that appear to be on Apple’s side. Not just someone stating they think Apple can win on appeal. I’m curious to see the reasoning behind any such optimism from a legal professional.

“Actually, pointing out that Judge Cote appointed a long time friend of hers (what else would you call it when she says that after working with him for two years, she stayed in touch with him for eight years after he left?) might be a conflict of interest isn't an ad hominem attack. Nor is pointing out that many lawyers have reported that she tends to pre-judge cases.”

“When I see comments about her such as "Judge Cote predetermines outcome of the case and consistently rules accordingly even in contradiction to her own orders. She also lacks appropriate judicial temperment and decorum " in a comment dated from 2009, then Apple's complaint comes across as more possible.”

A judge being friends with a court-appointed trustee, monitor, or arbitrator is not in itself reversible error. Nor is a judge expressing opinions about the strength or weakness of the evidence presented in a non-jury legal proceeding where the judge is essentially the jury. Can you provide a link where lawyers (not just some commentators in a forum) are stating she tends to pre-judge cases? Specifically, a link to such a comment as the one you put quotes around?

“When Apple complains that Bromwich is over charging them and I see reports that his previous monitoring rate was $495 per hour just 5 months ago, twice what he is charging Apple, then that raises my eyebrow.”

$495 was simply his rate in a case 5 months ago, not necessarily his usual rate. It’s not uncommon for lawyers to charge differently according to the depth of the pockets of their clients and the type of case they are working on.

“My problem with it was that it set a precedent that has gotten high tech companies to use the Justice Department as a club to beat their competitors with. Now, high tech companies routinely spend much of their time in court, suing each other over everything in the Sun. IMPO, this is a very bad trend.”

This is rich. You are defending Apple based on the need to keep tech companies out of court, yet Apple is considered to be one of the primary instigators of the costly and wasteful patent wars – at least in the U.S. The patent wars buttress my point that Apple is litigation-happy and, win or lose, right or wrong, will fight anything in court because it has a good amount of arrogance and the idle money to do so.

“Judge Cote is basically going against the 2007 Leegin Creative Leather Products, Inc v PSKS, Inc Supreme Court decision. The real question is will the appeals courts agree with her rational for doing so.”

Cote essentially said that Apple’s role in this went beyond just being just a vertical partner ... that their role was as a vertical player facilitating a horizontal conspiracy. Hence, they didn’t fall squarely under Leegin. Anything can happen on appeal, obviously, but based on what I’ve heard and read of the evidence, I think Cote’s decision is sound and will be upheld.

--Pat

[John F]

"Apple gets reprieve from e-book monitor's oversight"

http://news.yahoo.com/apple-gets-tem...--finance.html

[Graham]

Originally Posted by John F

"Apple gets reprieve from e-book monitor's oversight"

http://news.yahoo.com/apple-gets-tem...--finance.html

It's not clear from this and related articles how long the granted 'administrative stay' is for. It seems to be up until the court hears an appeal against the monitorship, which the 2nd circuit judges say will be heard 'as soon as possible'.

The DOJ seems happy with them granting this short stay. After all, the monitor doesn't have to be on the case every day - he just has to be able to review and interview periodically.

I think I've got this clear:

Apple are arguing that the presence of the monitor is causing them irreversible harm and so the monitoring should be delayed until after their main appeal against the Judge Cote verdict itself, which will happen later in the year.

The 2nd Circuit are permitting an interim appeal ASAP to decide whether to grant this and remove the monitor until after the main appeal.

So what happens if Apple lose their main appeal, but say they're going to take it on to the Supreme Court? Their same argument would presumably still apply and they could delay having the monitor imposed again.

Graham

[tubemonkey]

This proves Apple is innocent

[pwalker8]

Originally Posted by Graham

It's not clear from this and related articles how long the granted 'administrative stay' is for. It seems to be up until the court hears an appeal against the monitorship, which the 2nd circuit judges say will be heard 'as soon as possible'.

The DOJ seems happy with them granting this short stay. After all, the monitor doesn't have to be on the case every day - he just has to be able to review and interview periodically.

I think I've got this clear:

Apple are arguing that the presence of the monitor is causing them irreversible harm and so the monitoring should be delayed until after their main appeal against the Judge Cote verdict itself, which will happen later in the year.

The 2nd Circuit are permitting an interim appeal ASAP to decide whether to grant this and remove the monitor until after the main appeal.

So what happens if Apple lose their main appeal, but say they're going to take it on to the Supreme Court? Their same argument would presumably still apply and they could delay having the monitor imposed again.

Graham

It's not uncommon for a judge to grant a temporary stay while waiting for the appeal. It just means that 1) the judge thinks that Apple has some chance at success and 2) that Apple will receive an irreversible harm if the stay isn't granted. My guess is that this will go on a while. How long the stay holds will depend on a number of things. I've read of cases where the hold gets lifted rapidly, and I've read of cases where the hold lasted until the final appeal. I suspect that a lot will depend on the 3 judge panel.