Apple files appeal

[Barcey]

Originally Posted by Sil_liS

Wouldn't defense lawyers in antitrust cases also be antitrust lawyers?

A defense lawyer is always going to claim that their client did nothing wrong, it doesn't matter how knowledgable they are in antitrust laws or how guilty they believe their clients are. An antitrust compliance lawyer has a goal of keeping the company compliant (and would have been fired the first time they told Steve Jobs he couldn't do that).

[Sil_liS]

Originally Posted by Barcey

A defense lawyer is always going to claim that their client did nothing wrong, it doesn't matter how knowledgable they are in antitrust laws or how guilty they believe their clients are. An antitrust compliance lawyer has a goal of keeping the company compliant (and would have been fired the first time they told Steve Jobs he couldn't do that).

Actually lawyers advise their clients to plead guilty when this would get them a lower sentence, and since Apple acknowledging wrong doing in this case would have meant no monitor I don't see why they haven't gone with this option.

[Sydney's Mom]

Originally Posted by tubemonkey

Lawyers are hired guns doing whatever it takes to get their clients off. Those same company lawyers, if working for the government, would say that Apple's actions were illegal.

It is called advising the client. Doesn't mean you believe it. You tell the client the options and the risks, and they have to make the decision on how to proceed. My clients like me to say no, so they can blame Legal, but most times what they are looking to do is not per se illegal (although this was, and we have very strict rules about discussion of prices), but may have the following risks, and not doing it will have the risk that you won't make your goal. The executive has to acknowledge the risks and go forward.

[Barcey]

Originally Posted by Sil_liS

Actually lawyers advise their clients to plead guilty when this would get them a lower sentence, and since Apple acknowledging wrong doing in this case would have meant no monitor I don't see why they haven't gone with this option.

They were given many opportunities to settle without pleading guilty, just like Apple did in the EU case and just like the publishers did in this case. Who knows why they didn't take that option either.

[speakingtohe]

I'm confused by the last paragraph in particular.

Even if benefits ensued does this make an illegal action less illegal.

If I was to evict someone illegally and they found a better place to live would I be considered right for evicting them?

Apple filed papers on Tuesday telling a federal appeals court in New York that a judge's finding it violated antitrust laws by manipulating electronic book prices "is a radical departure" from modern antitrust law that will "chill competition and harm consumers" if allowed to stand.

Apple filed its formal written arguments before the Second U.S. Circuit Court of Appeals, asking the appeals court to overturn the judgment in Apple's favor, or grant a new trial in front of a different judge.

U.S. District Judge Denise Cote concluded last year that the Cupertino, Calif.-based company colluded with book publishers in 2010 to raise electronic book prices. She appointed Washington lawyer Michael Bromwich as monitor for two years after concluding Apple was not doing enough to ensure it no longer violated antitrust laws.

Apple's papers filed Tuesday refuted the antitrust finding, and said its entrance into the e-book market "kick-started competition in a highly concentrated market, delivering higher output, lower price levels, and accelerated innovation."

Helen

[tubemonkey]

Apple filed papers on Tuesday telling a federal appeals court in New York that a judge's finding it violated antitrust laws by manipulating electronic book prices "is a radical departure" from modern antitrust law that will "chill competition and harm consumers" if allowed to stand.

Well, Apple is partially correct. It'll chill competition for them, because it'll force them to compete on price and harm their bottom line. Has the world no respect for Apple's high margins?

[SteveEisenberg]

Originally Posted by Sydney's Mom

My clients like me to say no, so they can blame Legal, but most times what they are looking to do is not per se illegal (although this was . . .

Others should check out your whole #33 post, since I've edited out important parts. But, re the point quoted above, note that vertical price fixing, according to a 2007 US Supreme Court case, is not "per se" illegal. It instead is subject to the "rule of reason," itself subject to case law that may have changed by the time Apple exhausts its appeals.

A lot of Apple's spectacular success is due to its ability to prevent consumers from showrooming at store.apple.com, or physical Apple stores, and then buy the same product from discounters. Apple does this by setting minimum prices on its own products. Since Amazon can't be trusted not to discount, Apple generally refuses to market products through them (documented here). Is that legal? It depends a lot on judgment concerning motive, just like with the vertical price control publisher agreements. What determines the legality is not whether Apple manufactures the product they seek to stop from being discounted, but whether they can come up with the right reasoning about the price fixing promoting consumer welfare. Literary culture, anyone? It also is important that executives avoid sending emails expressing alternative motives.

According to Robert Bork, famously influential with current Supreme Court justices despite his failure to win Supreme Court confirmation, "vertical agreements" between companies can be just fine. If Apple wins its appeal, or big publishers resume agency pricing after their period of anti-trust supervision ends -- and get away with it -- US big publisher book buyers can fairly say "I've been Borked." People who buy Apple hardware have already been Borked, because I don't think Apple could get away with its restrictions on discounting without his influence. And Apple stockholders -- and employees -- can also say "I've been Borked," just with an opposite tone of voice.

[FizzyWater]

Originally Posted by SteveEisenberg

If Apple wins its appeal, or big publishers resume agency pricing after their period of anti-trust supervision ends -- and get away with it --

I absolutely hated agency pricing, but I thought the ruling only suspended it. The publishers can resume it. They're just not supposed to work together to set the prices when they do.

Sigh, I miss Fictionwise at its peak.

[bgalbrecht]

Originally Posted by SteveEisenberg

Others should check out your whole #33 post, since I've edited out important parts. But, re the point quoted above, note that vertical price fixing, according to a 2007 US Supreme Court case, is not "per se" illegal. It instead is subject to the "rule of reason," itself subject to case law that may have changed by the time Apple exhausts its appeals.

This is the third time I've pointed out in this thread alone that Judge Cote wrote in her decision that even if the evidence did not support a per se violation, the case would come out the same under the rule of reason standard, because Apple cannot show any pro-competitive effect of the publisher agreements.

[Sil_liS]

Originally Posted by Barcey

They were given many opportunities to settle without pleading guilty, just like Apple did in the EU case and just like the publishers did in this case. Who knows why they didn't take that option either.

I think that they expect this kind of attitude: http://www.thedailyshow.com/watch/we...ax-men---apple

Judge Cote had it at the beginning, but Apple pushed to far so now they want to try with a different judge.

[pwalker8]

Originally Posted by bgalbrecht

This is the third time I've pointed out in this thread alone that Judge Cote wrote in her decision that even if the evidence did not support a per se violation, the case would come out the same under the rule of reason standard, because Apple cannot show any pro-competitive effect of the publisher agreements.

Just because you keep repeating something doesn't make it particularly meaningful. The problem with her wave of the hand, is that for it _not_ to be per se, one has to present evidence that Apple was indeed involved in a conspiracy. As far as I can tell, there was no such evidence. Instead, she simply stated that she didn't believe the under oath testimony by Apple execs of what happened.

As far as the no pro-competitive effect, well that's simply laughable. At the time of the negotiations, Amazon held well over 90% of the ebook market, a virtual monopoly. Any ebook store entering the market that was able to capture some of that market was pro-competitive. What the government claimed was that prices went up after the agency price agreement went into effect, but that's hardly the same as anti-competitive.

What Apple is claiming is that for Apple to be guilty of anti-competitive actions, the government had to prove that 1) the publishers were engaged in a conspiracy and 2) that Apple both knew about the conspiracy and acted to aid it. While many here assume that just because the publishers accepted the deal, they must be guilty, but the publisher never admitted any guilt, they were just ponying up money to make it go away. A couple of the publishers explicitly said that they were not guilty and that they accepted the deal simply because if they went to trial and lost, they would be put out of business. Thus, Apple claims that the government had to prove in the trial that the publishers really were guilty of a conspiracy and that the government presented no such evidence.

This is all covered in Apple's appeal.

[Greg Anos]

And we'll all find out when the appellate court rules...except if Apple loses then we'll have to wait to see what the Supreme Court does with the case.

Whatever settles out of this will set some most interesting precedents...Especially for Apple.

[pwalker8]

Originally Posted by Ralph Sir Edward

And we'll all find out when the appellate court rules...except if Apple loses then we'll have to wait to see what the Supreme Court does with the case.

Whatever settles out of this will set some most interesting precedents...Especially for Apple.

I would expect that the government will appeal if they lose in the 2nd as well. I would be very surprised if this doesn't go to the Supreme Court either way. The case has some very big ramifications with regards to anti-trust. If upheld, pretty much any company that had negotiated a most favored clause with multiple companies in the same basic market is at risk.

[PatNY]

The wheels of justice turn slowly, so if there is an appeal to the Supreme Court, this may not be settled until the spring of 2017 or even the following year. Hopefully the federal appeals court rules against Apple and they decide to cut their losses -- and lawyers' bills -- by dropping any further appeals. If they do decide to take it further, hopefully the SC simply dismisses the case without comment.

Unless they do what Apple did, other companies really don't need to worry about anti-trust proceedings just because they negotiate most favored clauses with multiple companies. What Apple did was pretty unusual -- a vertical player directly manipulating and orchestrating a horizontal price fixing conspiracy. This is why Cote felt their behavior did not fall squarely under Leegin, which she addressed in her ruling.

--Pat

[bgalbrecht]

Originally Posted by pwalker8

Just because you keep repeating something doesn't make it particularly meaningful. The problem with her wave of the hand, is that for it _not_ to be per se, one has to present evidence that Apple was indeed involved in a conspiracy. As far as I can tell, there was no such evidence. Instead, she simply stated that she didn't believe the under oath testimony by Apple execs of what happened.

This is all covered in Apple's appeal.

I'm just saying that she anticipated Apple's argument and discounted it. I have no idea whether the appellate court will decide that she was wrong to do so, but I find Apple's view that their entry into ebook retailing made it more competitive is laughable, since in my experience, the price of ebooks rose dramatically because of the end of discounting.