Appeals judge expresses doubt towards U.S. government’s e-book antitrust case against Apple

“A US judge Monday expressed doubt towards the government’s e-book antitrust case against Apple, saying the tech giant was challenging “predatory” pricing from rival Amazon,” AFP reports.

“In July 2013, US District Court Judge Denise Cote sided with the government, concluding that Apple was liable for ‘facilitating and encouraging’ a collective effort by the publishers to end price competition for e-books,” AFP reports. “Theodore Boutrous, an attorney with Gibson Dunn representing Apple, told the appeals court that Cote’s ruling was ‘a roadblock that chills innovation and competition.’ The decision discourages new entrants into a market, ‘which the court has said is the essence of competition,’ he said.”

“Apple’s arguments resonated with at least one member of the three-judge panel, who appeared openly hostile to the government’s case,” AFP reports. “Judge Dennis Jacobs questioned a Department of Justice attorney on the agency’s hostility to Apple’s challenge to Amazon, which had more than estimated 90 percent market share at the time. ‘What we’re talking about is a new entrant who is breaking the hold of a market by a monopolist who is maintaining its hold by what is arguably predatory pricing,’ Jacobs said.”

Read more in the full article here.

MacDailyNews Take: Oh, lookie here, a U.S. judge with a clue. So, they do still exist, after all!

[Thanks to MacDailyNews Reader “Jax44” for the heads up.]

Related articles:
In pretrial view, judge says leaning toward U.S. DOJ over Apple in e-books case – May 24, 2013
Lawyers have complained for years that Judge Denise Cote pre-judges cases before she enters the courtroom – August 14, 2013

George Priest: Apple should win its e-book appeal – December 15, 2014
Obama’s DOJ brings in its big guns to Apple e-book appeal – December 11, 2014
U.S. Federal Puppet Denise Cote says she’s troubled by Apple $450 million e-books settlement deal – July 24, 2014
U.S. Federal Puppet Denise Cote: Apple cannot escape U.S. states’ e-book antitrust cases – April 15, 2014
U.S. Federal Puppet Denise Cote: ‘Apple’s reaction to the existence of a monitorship underscores the wisdom of its imposition’ – January 16, 2014
Judge Denise Cote denies Apple request block her friend as ‘antitrust compliance monitor’ – January 13, 2014
Antitrust monitor Bromwich rebuts Apple accusations of ‘unconstitutional’ investigation – December 31, 2013
Apple seeks to freeze its U.S. e-books ‘antitrust monitor’ – December 15, 2013
The persecution of Apple: Is the U.S. government’s ebook investigation out of control? – December 10, 2013
Apple’s Star Chamber: An abusive judge and her prosecutor friend besiege the tech maker – December 5, 2013
Apple takes aim not just at court-ordered e-books monitor, but also at U.S. District Judge Denise Cote herself – December 2, 2013
U.S.A. v. Apple: Judge Denise Cote assigns DOJ monitor in Apple ebook price-fixing case – October 17, 2013
U.S.A. v. Apple: Judge issues injunction against Apple in ebooks antitrust case; largely in line with what DOJ wanted – September 6, 2013
U.S.A. v. Apple: Judge Denise Cote says Apple needs third-party supervision after ‘blatant’ ebook price fixing – August 28, 2013


  1. One of these is not like the others:

    Judge Denise Cote. Democrat Clinton nominee to the United States District Court for the Southern District of New York.

    Judge Gerard Lynch. Democrat Clinton appointee in 2000. Democrat Obama nominee for Judge of United States Court of Appeals for the Second Circuit in 2009.

    Judge Lucy Koh. Democrat Obama nominee, January 20, 2010.

    Judge Dennis Jacobs. Republican President George H. W. Bush nominee in 1992.

    Nonsense vs. common sense.

    1. You are probably correct that bias is the main decider.

      Unfortunately, other cases are decided just as badly by Republican biases.

      Together Democrats and Republicans own our government, we are just one party away from totalitarianism and a long way from diverse views and real competition for good governance.

      I would suggest seat (25%) and term limits for parties to break up the power block, but its too late to put checks and balances on parties into the Constitution. Neither party will vote for them.

    2. Cast your assessment more widely, Fwhatever, and I have no doubt that you will also find judges appointed by the GOP that have performed poorly. Off the cuff, the recent “corporations are people” ruling led by Kennedy and Roberts fits the bill.

      In my opinion, corporations are people only from a legal standpoint dealing with liability and contracts. Extending this to “free speech” associated with politics is ridiculous. How can any corporation – typically an assemblage of thousands or shareholders – have one voice? Total bullshit that is paving the way towards the completion of corporate ownership of this country and the world.

    1. Oh and hey wouldn’t you love to see the moment after Apple wins the case Tim Cook sending security to drop kick Cote monitor lackey Michael Bromwich out on his ass and unceremoniously ruffled and shuffled off the Apple campus for good – with his briefcase in flight after him?

      Oh and maybe profuse DOJ apologies – well hell may have to freeze over for that one.

    1. No, it’s not. Apple just finally hit a judge nominated by a Republican which means they more often FOLLOW THE LAW instead of MAKING IT UP by legislating from the bench.

  2. “Judge Denise Cote sided with the government that Apple was liable for ‘facilitating and encouraging’ a collective effort by the publishers to end price competition for e-books”.

    Except that predatory pricing — which is really what Amazon was doing — is not exactly the same thing as price competition. So Judge Cote and the US government supported predatory pricing behavior of Amazon intended to harm the publishers, all in favor of Amazon’s emergent publishing aspirations.

    Predatory pricing is the opposite of price competition. Selling below cost is what computer chip manufacturers did years ago in their dumping cases, and a number were found guilty. Loss sales on a temporary basis are calculated to drive competitors out of business (so existing companies can retain pricing power and be better off than with true competition). Loss sales on a long-term basis only make sense if the losses are subsidized by other businesses. Either way, loss sales are dodgy and require careful evaluation for anti-competitive effects.

    Apple simply explained to the publishers that they could retain control for setting the prices of their _own_ products if they were to sell e-books on the agency-basis as opposed to the wholesaler-basis of sales that they gave Amazon. And the publishers wanted to do this anyway. Anyone who has studied Strategic Decision Making can easily figure out the publishers’ best move.

    The publishers may be brilliant literary folk, but they failed to foresee the strategic repercussions of selling to Amazon as a wholesaler, rather than an agent. Still and all, it is not illegal for publishers to correct a poor business decision.

    Go Apple!

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