Judge rules that mediation needed in etailers vs the "Price-fixers."

[TCSimpson]

Judge Denise Cote on Thursday ordered three defunct e-book retailers, Apple and the five major publishers, to enter into mediation in an attempt to resolve claims that a 2010 conspiracy to fix e-book prices forced the retailers out of business.

http://publishersweekly.com/pw/by-to...xing-suit.html

[eschwartz]

Apple may now have a chance to be destroyed over anti-trust issues. This should be even more fun than Microsoft.

I wonder if Apple can dig themselves out of this hole? Antitrust = nasty.

[pwalker8]

Originally Posted by eschwartz

Apple may now have a chance to be destroyed over anti-trust issues. This should be even more fun than Microsoft.

I wonder if Apple can dig themselves out of this hole? Antitrust = nasty.

Of course, if you will recall, the Microsoft case ended up with the verdict being overturned on appeal, the judge being rebuked rather harshly for lack of impartiality and a face saving settlement by the justice department rather than a retrial.

[DuckieTigger]

Originally Posted by pwalker8

Of course, if you will recall, the Microsoft case ended up with the verdict being overturned on appeal, the judge being rebuked rather harshly for lack of impartiality and a face saving settlement by the justice department rather than a retrial.

Except this time around the appeal (US v. Apple+Publishers) is not going all that great. Of course have to see how this trial goes first. Coincidence that this gets allowed to go to trial after the appeal might fall through the first time around?


[Page Proof] Brief for Plaintiffs-Appellees United States and Plaintiff-States (August 14, 2014)

CONCLUSION

The only question in this appeal is whether the district court abused its discretion by declining to disqualify the Monitor; it did not, as the Monitor demonstrated neither partiality nor possession of extrajudicial knowledge. The Injunction’s legality is at issue in Apple’s appeal from the Injunction – not this appeal from Apple’s request to disqualify the Monitor. But in any event, the Injunction was within the district court’s authority to order and should not be vacated. Instead, the Court should deny all of Apple’s requested relief.
Respectfully submitted.

[pwalker8]

Originally Posted by DuckieTigger

Except this time around the appeal (US v. Apple+Publishers) is not going all that great. Of course have to see how this trial goes first. Coincidence that this gets allowed to go to trial after the appeal might fall through the first time around?


[Page Proof] Brief for Plaintiffs-Appellees United States and Plaintiff-States (August 14, 2014)

In general, one can't tell how an appeal is going until the panel rules. Heck, some court followers said the Judge Cote was expressing skepticism about the DOJ's case against Apple right up to the point when she released her decision that bought into every one of the DOJ's theories.

Allowing a case to go to trial while an associated case is in appeal is fairly normal. The appeal might last for years.

[DuckieTigger]

Originally Posted by pwalker8

In general, one can't tell how an appeal is going until the panel rules. Heck, some court followers said the Judge Cote was expressing skepticism about the DOJ's case against Apple right up to the point when she released her decision that bought into every one of the DOJ's theories.

Allowing a case to go to trial while an associated case is in appeal is fairly normal. The appeal might last for years.

Ok, so it was just coincidence.

How does that appeal process work? Say if it gets thrown out, can Apple refile the same claim again (e.g. getting rid of the monitor) or do they have to show that mistakes were made in the appeal?

[pwalker8]

If an appeal gets denied, the Apple has to move up to the next level. That would be either an en banc hearing (usually the first level appeal gets heard by a panel which is a subset of the entire circuit court. I'm not sure if that is the case here, but it's the norm for that to happen. En banc is a hearing by the entire circuit court), or an appeal to the Supreme Court, which can choose to hear it or not. Most of the predictions that I have read think that it will go to the Supreme Court and they will hear it.

Apple can not re-file the same appeal except in some special circumstances. That's one reason that Apple's appeal had so many different points, there is no do over, so they had to hit all the possible reasons to overturn.

[DuckieTigger]

Originally Posted by pwalker8

If an appeal gets denied, the Apple has to move up to the next level. That would be either an en banc hearing (usually the first level appeal gets heard by a panel which is a subset of the entire circuit court. I'm not sure if that is the case here, but it's the norm for that to happen. En banc is a hearing by the entire circuit court), or an appeal to the Supreme Court, which can choose to hear it or not. Most of the predictions that I have read think that it will go to the Supreme Court and they will hear it.

Apple can not re-file the same appeal except in some special circumstances. That's one reason that Apple's appeal had so many different points, there is no do over, so they had to hit all the possible reasons to overturn.

Ah, thank you for that. You have any opinion, educated guess, as toward Apple's chance in winning in Supreme Court?

If you ask me, they will have a harder time to win than Microsoft did. Have been unable to find any information about it though. Do you have a good source as to prediction that the Supreme Court will hear Apple?

[pwalker8]

Originally Posted by DuckieTigger

Ah, thank you for that. You have any opinion, educated guess, as toward Apple's chance in winning in Supreme Court?

If you ask me, they will have a harder time to win than Microsoft did. Have been unable to find any information about it though. Do you have a good source as to prediction that the Supreme Court will hear Apple?

I think they have a reasonable chance at winning, just from the stand point that many think that Judge Cote's ruling did not correctly take into account the 2007 Leegin ruling with regards to per se anti trust and the five who formed the majority opinion in Leegin are still on the court.

Here is one link for a recent piece

http://www.businessweek.com/articles...ves-up-a-notch

Here is a link for a piece that was from prior to Judge Cote's ruling.
http://www.washingtonpost.com/busine...e0e_story.html

[JSWolf]

I do think these smaller eBook stores did go out of business because of Apple and the Price Fix Six. These stores had business models that were no longer workable under agency pricing. It changed their way of doing business so much that they had no way to complete against the bigger shops such as B&N and Amazon. When all the prices for the BPH eBooks were the same. It was the way these smaller shop discounted and/or had rebates, coupon codes, sales, cash back credit and whatnot that worked for them. When that was taken away, anything they had that made them different was gone and they just became like everybody else. They had no way to compete against the bigger shops.

I used to shop at BooksOnBoard and Fictionwise before the agency pricing as I liked their business models. They worked. They worked to get me to buy eBooks from them and to save money doing so.

[pwalker8]

Originally Posted by JSWolf

I do think these smaller eBook stores did go out of business because of Apple and the Price Fix Six. These stores had business models that were no longer workable under agency pricing. It changed their way of doing business so much that they had no way to complete against the bigger shops such as B&N and Amazon. When all the prices for the BPH eBooks were the same. It was the way these smaller shop discounted and/or had rebates, coupon codes, sales, cash back credit and whatnot that worked for them. When that was taken away, anything they had that made them different was gone and they just became like everybody else. They had no way to compete against the bigger shops.

I used to shop at BooksOnBoard and Fictionwise before the agency pricing as I liked their business models. They worked. They worked to get me to buy eBooks from them and to save money doing so.

I think it's will be pretty difficult to prove that the smaller eBook stores went out of business because of agency pricing. For that matter, I think that agency pricing actually would help the smaller ebook stores. With agency pricing, Amazon could no longer be able to undercut the smaller stores.

[eschwartz]

Originally Posted by pwalker8

I think it's will be pretty difficult to prove that the smaller eBook stores went out of business because of agency pricing.

Keep in mind that it doesn't matter what you and Apple think -- only what the law thinks. And there must be some reason why they thought it would work -- to the point that they have brought a case against Apple.

For that matter, I think that agency pricing actually would help the smaller ebook stores. With agency pricing, Amazon could no longer be able to undercut the smaller stores.

With Agency pricing, it is the smaller stores that couldn't undercut the competition.

[JSWolf]

Originally Posted by pwalker8

I think it's will be pretty difficult to prove that the smaller eBook stores went out of business because of agency pricing. For that matter, I think that agency pricing actually would help the smaller ebook stores. With agency pricing, Amazon could no longer be able to undercut the smaller stores.

But the reason to shop at some of the smaller stores was because of the way they did business before agency. Take fictionwise, they had their buywise club and they did things like buy certain books on this list and we'll give you the price back in store credit. This was a model that was rather successful and one that Amazon did not have. I bought from Fictionwise. But after agency, Fictionwise became nothing special. Also, with BooksOnBoard, they allowed discount codes and they gave you store credit back on a number of eBooks. So eventually, you'd have enough credit to get discounted or even free eBooks. After agency, no way. So yes, being just another generic store with nothing to distinguish them was not in their best interests. They did things to differentiate them from places like Amazon and agency took that away.

[fjtorres]

Originally Posted by JSWolf

So yes, being just another generic store with nothing to distinguish them was not in their best interests. They did things to differentiate them from places like Amazon and agency took that away.

Removing price competition from a market favors big players who have the resources to compete on other terms. Like selling reader hardware at near cost. Or by developing an indie publishing platform.

It is no accident that the biggest player pre-agency remained the biggest player under it and lost no share after agency kicked in fully. Apple's share gain came from the epub camp, not Kindle.

[pwalker8]

Originally Posted by JSWolf

But the reason to shop at some of the smaller stores was because of the way they did business before agency. Take fictionwise, they had their buywise club and they did things like buy certain books on this list and we'll give you the price back in store credit. This was a model that was rather successful and one that Amazon did not have. I bought from Fictionwise. But after agency, Fictionwise became nothing special. Also, with BooksOnBoard, they allowed discount codes and they gave you store credit back on a number of eBooks. So eventually, you'd have enough credit to get discounted or even free eBooks. After agency, no way. So yes, being just another generic store with nothing to distinguish them was not in their best interests. They did things to differentiate them from places like Amazon and agency took that away.

Does agency take away store credits? Perhaps I'm not understanding what you are saying, but if a store said "you buy this book and we will give you back the price in store credits" then I don't think that would violate the agency contract. You still have to pay the price for the book, you just get store credits to spend on another book. I'm sure it depends on how exactly the contract is written, but on it's face, I don't see it being an issue.