Lawyers have complained for years that Judge Denise Cote pre-judges cases before she enters the courtroom

“To her credit, the remedies U.S. District Judge Denise Cote proposed last week to prevent Apple from ever again conspiring to fix e-book prices were far less draconian (and frankly bizarre) than the ones the Department of Justice had requested. See DOJ remedies,” Philip Elmer-DeWitt reports for Fortune.

“But the air of unreality that permeated her earlier decision in the case — in which Amazon, a monopolist engaged in the predatory pricing of e-books, escaped untouched, and Apple, the new entrant in the market, was found liable for violating antitrust law — carried over into Friday’s hearing. (Transcript.)
One of the strangest moments came in a set speech Judge Cote gave just before she made her remedy proposals,” P.E.D. reports. “After describing Apple and the five so-called publisher defendants as playing ‘hard ball’ in a ‘rough and tumble game … for high stakes,’ she added this complaint: ‘None of the publisher defendants — and this is true for Apple, as well — have expressed any remorse over their actions, made any public statements admitting wrongdoing, undertaken any voluntary program to prevent a recurrence. They are, in a word, unrepentant.'”

P.E.D. reports, “If the attorneys for Apple and the publishers took objection to the tone of her remarks — which seemed more appropriate for a crusading prosecutor than a fair-minded judge — they would not be the first. Many of the 21 reviews she received in The Robing Room — a kind of Rate My Professors for judges — described her as hard-working and meticulous. But more than half complained that she was ‘biased’ and pre-judged cases before she heard the evidence.”

Read more in the full article here.

MacDailyNews Take: Denise Cote is a hack and a pawn.

Here’s to Apple running into a competent judge during the appeals process of this fiasco.

[Thanks to MacDailyNews Readers “Fred Mertz” and “Jax44” for the heads up.]

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45 Comments

  1. Is anyone else bothered that individual lawyers/judges have so much power? I know there’s an appeal process, but how many times have we seen single judges make rulings that affect 350 million people. Picture one person compares to a stadium of 60,000 and multiply that times 6000 stadiums! One crazy ASS lawyer like the openly gay one in California who reversed Prop 8 to suit his own beliefs instead of recusing himself! Or Supreme Court Justice and Obama political ally Elaina Kagan who refused to recuse herself from the Obamacare case after working for Obsma in its development! Lawyers have turned this country to sh*t!

    1. And yet we wouldn’t HAVE this country if not for lawyers. Thomas Jefferson was a lawyer. In fact, 35 of the 55 framers of the US Constitution were lawyers.

      Without lawyers, you wouldn’t have the rights, freedoms, and protections you enjoy–and you certainly wouldn’t have someone there to defend you should the government, or anyone else, try to strip you of those rights, freedoms, and protections, whether you’re deserving of them or not.

      The problem isn’t lawyers. It’s bad lawyers. Just like there are bad people in every profession. Bad CEOs, bad journalists, bad politicians, bad teachers, and so on and so forth. There are rotten eggs in every profession, but that doesn’t mean the profession as a whole is bad or unneeded. And you’d best respect the difference.

      That said, I am fully in support of weeding out, exposing, and eliminating the bad ones, no matter the profession.

      1. There are not very many bad lawyers, but they exist just like there are bad people in every profession.

        The real problem is that people jump on judges, lawyers, etc. and label them as bad, on the take, etc. just because they disagree with their ruling, advocacy, speeches, work, etc.

        I completely disagree with Judge Cote’s ruling, and I think it will be slapped down by the Court of Appeals. But just because I think she’s flat-out wrong doesn’t mean she’s bad or on the take. She may have biased her opinion after reading the complaint, responses, motions, etc. filed in the case before the trial began, which she should not do.

        The reason we have appeals courts and supreme courts (which are not 1 judge ruling) is to provide a check and balance against one person (judge) making a wrong decision.

        Cases are very complicated between the facts, evidence, and applicable law. Now step into the realm of business litigation, throw in multiple defendants, communications between dozens of people, and a lot of different laws applying to different claims and the potential for a mistake occurring is definitely present.

        But that’s why we have an appeals process. Apple will appeal almost immediately, and will also likely earn a stay of enforcement of the judgment until the appeal is being heard.

        1. Agreed, and one of the great complications is a Judge who cannot see or will not admit their own biases and recuse themselves. And that problem goes all the way to the Supreme Court.

        2. Actually, this case was exceptionally simple. Apple used very aggressive negotiating tactics with each publisher. They initially started out with the same position and tactics with each one. They tried to get the best deal they could. Apple lost on a lot of its initial requests. The final contracts were actually quite benign and didn’t favor Apple at all. Done.

          The details only support this position. You don’t need all the gory details to come to the same conclusion.

          As you probably know, business negotiations are typically ignored in litigation (and not allowed into evidence) once there has been a “meeting of the minds” and contracts have been signed. What is written into the contracts is all that matters — especially if both parties agree to the meaning of the wording. According to the then extant contracts Apple gave up virtually *all* power over pricing and fully *all* power to force the publishers to do anything (other than set a maximum selling price for certain classes of books — and as an aside, can *anyone* explain to me how setting a maximum [not minimum] price automatically forces customers to pay more?). Hell, the contracts didn’t even require the publishers to offer all their books on Apple’s bookstore, which could have led to the publishers offering books through other venues and not Apple — something that could have been extremely detrimental to Apple.

          Negotiations don’t matter. The end result does. If Apple had gone in and told every publisher at the outset that they had to get Amazon to pay $1,000 per delivered digital book, that is just part of the negotiations. Nothing like that ended up in the final contracts. The contracts should have stood.

          Several years ago I was part of a company in which we had contracts with our customers. Twice third parties sued to invalidate those contracts. Each time the third parties tried to tell the court what certain clauses meant and tried to have the courts kill those clauses. In both cases the judges stated that since the company for which I worked and our customers explicitly agreed to the meaning and intent of the wording in the contracts (which was different than either of the third parties’ interpretations in either suit) that the wording in the contracts stood as is. In each case the third party tried to put forth the fact that the company for which I worked and our customers initially disagreed on both the meaning and wording of the clauses during negotiations. In both cases the judges said that is irrelevant because we and our customers now agree and the wording has a specific meaning and intent. Done!

          Additionally, none of the individuals involved (not the judge, not the DOJ, and not Apple’s lawyers) get the difference between a Most Favored Nation clause and a Best Customer clause. This 100% bewilders me! A MFN clause is proactive and under the wrong wording and conditions can be considered illegal under anti trust laws. A MFN clause can require a party to proactively give another party the best possible position no matter what. A BC clause is 100% *reactive*. It is *only* triggered when some other third party is given an advantage. The BC clause then levels the playing field. That is all. How can any sane person claim that leveling the playing field gives an advantage to Apple?

          Further, you can’t claim someone’s motivation is based upon emails that were never sent and the person involved says they never read as the DOJ and the judge have done. Is the DOJ and the judge claiming that people were able to read Steve Jobs’ mind (or that Steve Jobs had mind control over them and forced his thoughts into their heads) or were personally plugged into Steve Jobs’ computer so they could read his emails *before* they were sent?

          Finally, you can’t take a statement supposedly made by a dead guy (who clearly could not explain what he meant by the statements) and claim it as the smoking gun in your case (as the DOJ did) — especially when the statement was just reiterating the facts of OTHER parties’ positions. Steve Jobs supposedly stated that he knew that the publishers wanted to raise prices and make more profit. He also said Apple was OK with the publishers raising prices. Other than stating a simple fact, how is the Apple being a ringleader over the publishers when the *PUBLISHERS* got to independently set the prices? What was Steve Jobs to do? Do the judge and the DOJ believe Steve Jobs should have said to the publishers, “You guys don’t really want to raise prices or make more profit. You’re obviously lying about that. It’s Apple’s job to make sure your real desires come true all publishers make less and less profit” I’m sure that would have made the negotiations even more difficult — and probably doomed them.

          So on one hand the DOJ said some things must be taken as fact and must stand on the supposed wording of the time, i.e., Steve Jobs’ “smoking gun statement” and unsent & unread emails, while other, written documents that everyone agreed to as the final word, i.e., the contracts extant at the time, can’t stand on their own? Both the DOJ and the judge seem to want it to be selectively in a way that punishes Apple.

          The case was/is really simple. If one does want to lay out all the details the simplicity is still supported.

        1. Yes, because it’s just that easy. Just like it’s so easy to get rid of bad doctors, crooked real estate agents, unmotivated teachers, or the dregs of any other profession you can name.

          And actually, yes, “we the people” can stop bad lawyers … by doing some damned research and not hiring them. Just like I wouldn’t take my car to an auto-mechanic with a bad reputation, or go to a doctor who has committed malpractice numerous times.

      2. although I agree with some points of your post, i.e every profession have good and bad I’ll like to point out:

        1) I once read a long analysis once that the reason the U.S political system is so screwed up is that so many current politicians are lawyers. Many senators, congressmen, the president are lawyers. Lawyers are good at arguing, making laws, talking, but they are generally pretty BAD at solving problems and being practical (that is not their training). (i.e they are better at ‘winning’ by winning an argument than practically implementing a solution). That’s why there are continued logjams in political running of the country and things move forward at a glacial pace or at all. The study compared the ‘lawyer’ politicians with the ‘business background’ politicians (millionaire industrialists etc) who seem better at actually implementing solutions.

        2) it’s interesting you brought up thomas Jefferson.
        For all his abilities he was also a Slave Owner. He had sex with his slaves .
        Jefferson apologists for years refused to believe that until DNA evidence today confirms it. (Most of the other lawyer draftees of the Constitution were also slave owners. ). Of course today the Jefferson apologists say the Black slaves he had sex with (Sally Hemmings was 15 or 16 at time, Jefferson middle aged around 44) did it “with love and voluntarily ” just like they used to argue “it never happened”. (but I personally i doubt slaves ever really have a choice). So being a lawyer doesn’t necessarily create morality.

        1. What do either of your points have to do with the discussion at hand? I’m genuinely curious, because it seems like you’re going off on an inconsequential tangent to, well, win an argument when what you’re trying to argue isn’t being discussed.

          1. you had a post where you seemed to idolize lawyers :

            “Without lawyers, you wouldn’t have the rights, freedoms, and protections” and put forward T.Jefferson as a shinning example.

            I’m pointing out the grey areas: that 1) Jefferson to some (especially to African Americans) is a tarnished ‘hero’ and 2) lawyers as politicians have also caused a lot of problems and not just ” rights, freedoms, and protections”

            I think my post is pertinent and follows your theme.

            1. I didn’t “idolize” lawyers with my post; I responded to a wildly inaccurate claim (that lawyers were the reason this country has gone to shit) by pointing out that while, yes, and lawyers exist, they should not be singled out as the cause of all our problems and deserve credit for the contributions the legal field has made in American history.

              How does pointing out that Jefferson had issues in his personal life (which is an entirely separate issue from his contributions to this country), or that lawyers don’t always make great political leaders (when I am NOT limiting their effect on our rights and freedoms to politics) do anything to enhance this discussion?

            2. it enhances the discussion by giving another view just like your original post gave another view to the discussion.

              the “personal life” of Jefferson is especially pertinent as what he did for the country , laws he argued for etc was (or should be) based on ‘morality’ and how he treated those around him including his slaves gave an insight to this. Seriously how do you set up directions and laws if your personal morality sucks? For example if you PERSONALLY BELIEVE in slavery than you will SET LAWS facilitating that. So It is NOT ” an entirely separate issue from his contributions to this country” as you argue. (T.J wasn’t a total monster, he set free all his bastard children when they grew up but it understanding him fully with his faults gives a clearer picture of him – and your arguments).

              Thomas Jefferson also organized the Lewis and Clarke expedition: yeah it did a lot for the ‘country’ , his professed idea was to spread ‘Liberty’ (he called it the Empire of Liberty). but the Indian Nations would have something to say about that PLUS the black slave that Lewis and clarke brought along with them…

    2. Or the three republicans on the Supreme Court who didnt mind their collegue’s wife running the election campaign for the plaintiff in 2000?

      Yeah, I don’t recall any of them recusing themselves rather than issue a verdict they declared could never be used as precedent. In lay terms, that means they openly admitted being thieves.

  2. 100% of all lawyers who failed to win cases complain that the judge was biased. Losers generally complain that it was someone else’s fault that they lost the case rather than their inability to make a solid argument. Appeal the case if you feel that strongly about it, but if you lose again accept the fact that your case was indefensible or your argument was weak.

    1. Except in this case I remember reading that she publicly stated that Apple was guilty before the trial started. Then tried to make it look like she wasn’t biased by saying that she learned something during the trial.

    2. You may be right about lawyers complaining about bias after they lose a case.

      But how many of those times has the judge telegraphed their ruling before the case was even heard ? This is what Cote is being accused of doing, and frankly that is not a practice a competent or fair judge should be engaging in, much less making it a habit.

      1. Sorry, JPS. While I think the ruling is absolutely ridiculous, and SHOULD be overturned on appeal, Apple and the DOJ both asked for her preliminary opinion of the case. She gave it. Doesn’t mean she wasn’t biased, doesn’t mean she’s not wrong, but they asked her for it.

        I think the more interesting and troubling comments she made were about Apple and the publishers not admitting wrongdoing or being repentant. Duh! At least we’re sure Apple is very firm in its belief it did nothing wrong and will take this as far as they need to.

        1. I think the most interesting thing about her comments about Apple and the publishers not admitting wrongdoing is that it shows that she thinks because she believes they were in the wrong, that ideologically they should believe the same thing.

          Put another way: “I said you’re guilty so you should start acting like you are, regardless of if you agree with me or not.”

          Pure Hubris on her part.

    3. Yeah, you have no idea what you’re talking about. How many lawyers do you know, and how many have you spoken to regarding lost cases? I’m guessing that the first answer is a handful at best, and the second answer is zero. Because if it’s anything more than zero, then you’re flat-out lying now.

  3. What I want to know is why Apple’s highly paid attorneys opted for a non-jury hearing vs this judge deciding. Unless they had no say, which I doubt. Also, let us not forget about the Korean Judge in San Jose who has tilted so far for the loser Samsung as to scream – WHAT IS GOING ON? Do they still call this travesty “Justice”. Whose is it?

    1. That’s because having a jury adds a complete wild card to the case. Juries in complex contract cases have to be educated from square one on even the basics of contract law, the industry, the transaction, and most of the time they look like deer in the headlights.

      This was a complex case primarily about the legal arguments, not about the facts. There really wasn’t much dispute on the facts, just how the law should be applied. Juries are finders of fact; they don’t make legal rulings. So it was much more appropriate not to have a jury trial in this litigation.

  4. Half the attorneys that argued before her were upset with her ruling… that’s roughly the same number of attorneys who have lost a case in front of her.

    Meanwhile did you know that 20% of all sick days are taken on a Monday?

  5. Except in this case she publicly admitted what she thought before the trial even got started and then proceeded to continue her thoughts in the courtroom. After she heard over whelming evidence that Apple did in fact NOT collude with the publishers she still went forward with the verdict of guilty. She is a paid off turd that has no business being anywhere near the legal system because of her biased opinions on cases before they even begin and she doesn’t listen to the evidence or testimony and goes forward with her biased B.S.

  6. Why can’t Apple go over her and have her removed from their case due to prior prejudice? Surely the legal process will allow for the removal of a judge proven to be against the defendant prior to the case even beginning. She should have recused herself from the get go.

  7. “But the air of unreality that permeated her earlier decision in the case — in which Amazon, a monopolist engaged in the predatory pricing of e-books, escaped untouched, and Apple, the new entrant in the market, was found liable for violating antitrust law — carried over into Friday’s hearing”

    I think the above quote says it all. Quite bizarre from start to finish.

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