May 29, 2013

Judge in antitrust suit: Apple probably doesn’t stand a chance


Poor Apple.

Poor Apple. In an unorthodox move, the judge who will decide the case between Apple and the US Department of Justice, dropped hints last week that electronics giant doesn’t have a hope in hell.

Nate Raymond in Reuters reports that U.S. District Judge Denise Cote, who will preside over the trial in early June, gave her “tentative view” that the DOJ will be able to prove Apple engaged in a conspiracy with publishers to increase ebook prices.

When Mark Ryan, a lawyer with the DOJ, asked for her view of the case so far, Cotes decided to give him a nice little present.

“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.”

This is a surprising move on the part of the Judge, especially as it came during a pretrial hearing, which is only intended to work out practicalities. Not to mention, as Cotes emphasized, she has not yet read all the evidence. And vitally, has not read all Apple’s evidence in support of its case. Writes Raymond,

“Cote then gave what she called her “tentative view,” which she said was based largely on material submitted as evidence – emails and correspondence that took place over a six-week period between December 2009 and January 2010. She emphasized that no final decision would be made until after the trial takes place. And she also said she had not read many of the affidavits submitted in support of the parties’ positions.”

This bodes ill for Apple. Not only does this case have no jury, which makes Cotes’ decision final, she also said that she’s begun writing her opinion.

It’s hard to say why a Judge would be so helpful, some might say inappropriately, to one party in an upcoming case. Maybe she’s dropping hints that Apple should hurry up and settle already, just like the publishers, Penguin, HarperCollins, Simon & Schuster, Hachette Book Group, and MacMillan?  Exerting subtle pressure in this manner isn’t an entirely uncommon practice, but it’s still questionable given this is such a high-profile case.

Or maybe there are dark, dark forces at play. After all, Amazon, the main beneficiary of Apple’s apparently inevitable loss, announced their evil lair plans last week.


Ariel Bogle is a former publicist at Melville House.