Antitrust fallout: retailers sue conspirators

[Sil_liS]

Originally Posted by pwalker8

No pwalker8 isn't describing a system that would work in Apple's favor. But hey, that's a nice straw man. Pwalker8 is describing "i.e. judge waits until _after_ the trial to start writing the decision" how the system of justice is suppose to work. Ever heard of a jury rendering a verdict before the trial? Well, actually I have, but usually when a jury makes up it's mind before the trial, the verdict gets thrown out on appeal.

She didn't render a verdict and she didn't write her decision. What she said was:

"I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that," Cote said.

Originally Posted by pwalker8

My point all along is that Judge Cote did not follow normal legal procedures and allowed a novel legal theory that is specifically in conflict with the most recent Supreme Court ruling with regards to Anti-Trust. Apple is appealing on both of those grounds. We are still waiting for the first stage of the appeal to be ruled on. My expectation is that the case will most likely make it up to the Supreme Court.

Legal appeals are mostly about points of law. There are many reasons why an appeal will be refused or not which have nothing to do with the actual guilt or innocence of the plaintiff.

The appeal is pure nonsense:

The district court’s ruling that Apple, in the very act of launching the iPad, inventing the iBooks Store, and entering the e-books market, violated the Sherman Act is a radical departure from modern antitrust law and policy.

That was not the ruling of the court, but quite clearly the opposite:

If Apple is suggesting that an adverse ruling necessarily implies that agency agreements, pricing tiers with caps, MFN clauses, or simultaneous negotiations with suppliers are improper, it is wrong. As explained above, the Plaintiffs have not argued and this Court has not found that any of these or other such components of Apple’s entry into the market were wrongful, either alone or in combination. What was wrongful was the use of those components to facilitate a conspiracy with the Publisher Defendants.

[mrscoach]

Correct me if I'm wrong, but didn't Apple's lawyers ask for judgement before the trial, once evidence had been submitted? They were hoping there wasn't enough evidence to support the prosecution and could avoid the trial by having the case thrown out?
If this is so, then Apple supporters should not complain about her saying, in effect, "no, I think there is enough here that they can proceed to prove their case. Go to your corners and come out fighting." She could have said "this is all you got? Go home and don't waste my time because the evidence doesn't come close to being enough to proving anything," which is what supporters and Apple lawyers wanted.

[pwalker8]

Originally Posted by mrscoach

Correct me if I'm wrong, but didn't Apple's lawyers ask for judgement before the trial, once evidence had been submitted? They were hoping there wasn't enough evidence to support the prosecution and could avoid the trial by having the case thrown out?
If this is so, then Apple supporters should not complain about her saying, in effect, "no, I think there is enough here that they can proceed to prove their case. Go to your corners and come out fighting." She could have said "this is all you got? Go home and don't waste my time because the evidence doesn't come close to being enough to proving anything," which is what supporters and Apple lawyers wanted.

Apple might have asked the judge to rule that the prosecutors did not have a case (i.e. summary judgement) , but that is very different that asking for a judgement before the trial. They are very different things. There are a lot of things that happen as a matter of course in a trial. There are many pro forma motions that sound impressive if you don't know the normal procedures, but in real life rarely mean anything.

The basic issue that people point to is the fact that Judge Cote wrote the majority of her final decision _before_ the trial actually started. That doesn't have anything to do with motions filed before the trial, nor does it have anything to do with Judge Cote denying the motion for summary judgement.

[Sil_liS]

Originally Posted by pwalker8

Apple might have asked the judge to rule that the prosecutors did not have a case (i.e. summary judgement) , but that is very different that asking for a judgement before the trial. They are very different things. There are a lot of things that happen as a matter of course in a trial. There are many pro forma motions that sound impressive if you don't know the normal procedures, but in real life rarely mean anything.

The basic issue that people point to is the fact that Judge Cote wrote the majority of her final decision _before_ the trial actually started. That doesn't have anything to do with motions filed before the trial, nor does it have anything to do with Judge Cote denying the motion for summary judgement.

What makes you say that this is a fact?

[Graham]

Originally Posted by pwalker8

The basic issue that people point to is the fact that Judge Cote wrote the majority of her final decision _before_ the trial actually started. That doesn't have anything to do with motions filed before the trial, nor does it have anything to do with Judge Cote denying the motion for summary judgement.

Nor does it indicate that she had made up her mind.

I often write reports or documentation as I go along, it helps to keep the facts straight and it saves time. Edits are made as required. Only the final version matters.

If a lot of what she wrote made it into the final judgement then it could simply mean that her reasoning was not swayed by any further arguments presented during the trial.

Graham

[pwalker8]

Originally Posted by Sil_liS

What makes you say that this is a fact?

Because she admitted it. All the links were in the previous thread. I see reason to keep posting the same links over and over again.

[pwalker8]

Originally Posted by Graham

Nor does it indicate that she had made up her mind.

I often write reports or documentation as I go along, it helps to keep the facts straight and it saves time. Edits are made as required. Only the final version matters.

If a lot of what she wrote made it into the final judgement then it could simply mean that her reasoning was not swayed by any further arguments presented during the trial.

Graham

And it more likely means that her mind was made up and that it would be very difficult to get her to change her mind regardless. Given that she dismissed testimony that didn't agree with her take of what happened as unconvincing, even though there was no evidence to the contrary and made statements that even lawyers who support her find unusual, she has only herself to blame for those charges being leveled.

[Sil_liS]

Originally Posted by pwalker8

Because she admitted it. All the links were in the previous thread. I see reason to keep posting the same links over and over again.

When you say "the previous thread" do you mean the "Apple files appeal" where you made 8 posts none of which had links?

Or the one before that "Apple gripes about antitrust monitoring" where you made 81 posts 8 of which had links, 3 links behind paywalls, none of the rest mentioning such an admission?

[pwalker8]

Originally Posted by Sil_liS

When you say "the previous thread" do you mean the "Apple files appeal" where you made 8 posts none of which had links?

Or the one before that "Apple gripes about antitrust monitoring" where you made 81 posts 8 of which had links, 3 links behind paywalls, none of the rest mentioning such an admission?

Sigh. I see no point to this. I'm not going to dig back through all my research just so you can ignore what I post or attack it because you think you can score points. You want to think that Judge Cote didn't pre-judge against Apple, fine. It's your privilege to believe that the sky is green and grass is blue if you want. If you actually want to do research on legal matters, then quite a bit of information is behind pay walls. Good legal analysis is actually worth money to a lot of people.

Ultimately, it doesn't matter, Apple has settled the specific lawsuit this thread was started to discuss. When the final amount becomes public, we will have a better idea what this was all about.

As far as the Apple anti-trust lawsuit goes, we will see what the appeal courts rule.

[shalym]

Originally Posted by pwalker8

As far as the Apple anti-trust lawsuit goes, we will see what the appeal courts rule.

Yes we will. I wonder what you will say if Apple loses? Will you decide that the entire appeals court is biased and in the wrong?

Shari

[pwalker8]

Originally Posted by shalym

Yes we will. I wonder what you will say if Apple loses? Will you decide that the entire appeals court is biased and in the wrong?

Shari

You guys really don't get this stuff. This has very little to do with Apple per se, no matter how badly you want it to be. There are three things that are going on.

1) The current trend of federal prosecutors hitting up large corporations for big bucks. It's a big money maker for the federal government and the headlines set the prosecutor up for his next big gig.

2) Dispute over how anti-trust is interpreted. Prior to 1978, the anti-trust law was much looser. In 1978, the Supreme Court tightened up how the assumption of guilt worked. Unless certain standards are met, you have to prove harm. This ruling uses the previous standards.

3) How things work in the Federal court system.

Item one is why Apple was included in the charge. Apple has lots and lots of cash.

Item two is the basic legal dispute that will, IMPO, be the center piece of what the courts will look at during the appeals processes. The basic issue is that the big 5 publishing companies can not get together to determine price. If they do, they are guilty of anti-trust violations even is no harm is proven. The question in this specific case, is does the same standard apply to Apple. Under the post 2007 standard, the prosecution has to prove that both Apple knowingly conspired with the big 5 publishing companies _and_ that the consumers were harmed by it. Apple is arguing that Judge Cote applied the pre 2007 standard in her ruling and then when it was pointed out to her, did a little post decision touch up work to say it didn't matter. They are also saying that the evidence shows that they did not conspire with the big 5 publishing agencies, but rather negotiated with each in turn. (the question of if the publish companies getting together to present a united front to Amazon with regards to Agency Pricing is per se anti-trust is a different question, and one that I don't think the courts have actually ruled on)

Item three is where things get a bit murky. Basically, the way the Federal District court system works, especially in the 2nd (NYC) and 4th (Richmond Va, but for all practical purposes Washington DC), is that everyone knows everyone else. They all are on the same cocktail circuit, they have known each other for years and they know that for the most part, they are going to continue knowing and working with each other in the future. Thus, the trial judges tend to have a long lasting relationship, for either good or bad, with most of the prosecutors. In addition, the appeals judges have long time relationships with most of the trial judges, both for good and bad.

My understanding at what probably happened (suggested to me by a friend who argues cases at the federal court level) in the Apple case is that Judge Cote got peeved at Apple's lawyers when they ignored her advice to settle (this happens a lot) and then got really hacked off when Apple's lawyers suggested that perhaps she wasn't being as even handed as she should be. Most trial judges at that level (who are appointed for life, as opposed to the local trial judges who run for election), tend to be use to being the lord of all they survey and don't particularly appreciate having their failings pointed out to them, especially if the lawyer doing the pointing out is right. Thus she got her dander up and there was no way she was going to back down at that point.

In the appeals process, much will depend on which judges will sit on the appeals. Appeals are very, very different than actual trials, with different rules and standards. In general, findings of fact is left to the trial judge and most appeals judges will bend over backwards to give due deference to the trial judge with regard to finding of fact. The overwhelming majority of appeals thus turn on points of law.

So depending on who sits on the appeals, several things could happen. One is everything could be upheld and Apple continues the appeal to the Supreme Court. The next is that the appeals court could overturn Judge Cote completely and dismiss the case. The third is that the appeals court could overturn part of the decision, saying that Judge Cote failed to consider some point of law, or misapplied some point of law and return the case to Judge Cote for further consideration (this is normally what happens when a case is overturned). Last is that Judge Cote could give Apple a light slap on the wrist in the monetary sentencing part of the trial and reduce the time period of monitoring to time served and Apple decides to drop the appeal.

If the last thing is what happens, then it is likely that one of the appeals judges brokered a face saving deal that everyone could live with. We have already seen this sort of thing with the initial stay request. The longer that the appeals court holds off ruling, the more likely something like this is going on behind the scenes.

If that doesn't happen, then the first is the most likely thing to happen. This is what happens much of the time and it's been hinted at in the reports on the stay hearing. The second item happens only very, very rarely. It would be a major slap in the face of Judge Cote and from what I understand, Judge Cote is well liked enough that they simply wouldn't do that. The third thing is what happens most often when a judge has obviously screwed something up. This is what happened in the Microsoft case (though in the Microsoft case, the case was sent back to a different judge). Typically what happens then is some sort of settlement is reached without a new trial.

If it is appealed to the supreme court, then either the Supreme Court decides to hear it or they will decline to hear it. My guess is that it will hear it, because part of the appeal is that Judge Cote basically ignored the Leegin ruling of 2007 and the Supreme Court tends to hear cases like that.

In conclusion, I would say that I have no idea how it will turn out and for all practical purposes, however it is decide will have absolutely nothing to do with how various courts and judges feel about Apple. People may want this to be about Apple, but it isn't.

[jemc]

Originally Posted by shalym

Yes we will. I wonder what you will say if Apple loses? Will you decide that the entire appeals court is biased and in the wrong?

Shari

I think you just got your answer.

[Sil_liS]

Originally Posted by pwalker8

Sigh. I see no point to this. I'm not going to dig back through all my research just so you can ignore what I post or attack it because you think you can score points. You want to think that Judge Cote didn't pre-judge against Apple, fine. It's your privilege to believe that the sky is green and grass is blue if you want. If you actually want to do research on legal matters, then quite a bit of information is behind pay walls. Good legal analysis is actually worth money to a lot of people.

Ultimately, it doesn't matter, Apple has settled the specific lawsuit this thread was started to discuss. When the final amount becomes public, we will have a better idea what this was all about.

As far as the Apple anti-trust lawsuit goes, we will see what the appeal courts rule.

I'm not ignoring what you post. I've looked back at the previous thread where you insisted that there were links and none of your posts included links. I went and looked at the thread before that in case you were just mistaken about the thread, but there were a few links that I couldn't follow they were not in posts that suggested that the links include such an admission by the judge nor was there such an admission in the links that I could follow.

Originally Posted by pwalker8

Item one is why Apple was included in the charge. Apple has lots and lots of cash.

No, Apple was included in the charge because of evidence of antitrust violation.

[pwalker8]

Believe what you wish. Rather obviously nothing I say or can point to will change your mind.

[DiapDealer]

Originally Posted by pwalker8

Rather obviously nothing I say or can point to will change your mind.

What about you? You open to being swayed?