Monday’s e-book antitrust appeal hearing went well for Apple

“Apple aced its e-book antitrust appeal,” Philip Elmer-DeWitt reports for Fortune. “Two of three appellate judges seemed inclined to see things Apple’s way.”

“My colleague Roger Parloff, who has seen more than his share of appellate hearings, was surprised how well this one went for Apple,” P.E.D. reports. “‘Judges Jacobs and Raymond Lohier seemed quite concerned that Judge Cote had used the wrong standard, but Jacobs’s qualms clearly went much further—seeming to question the government’s judgment in ever having brought the case. His problem was that Apple was a new entrant that was bringing competition to a market that had been, until then, dominated by a ‘monopolist,’ Amazon. Judge Jacobs also repeatedly referred to Amazon’s $9.99 pricing policy, whereby it sold books at below the wholesale acquisition cost, as ‘predatory pricing,’ and seemed to suggest that Amazon was obviously using it as a means of maintaining its monopoly dominance.'”

“At times Judge Jacobs came close to suggesting that the government had prosecuted the wrong company,” P.E.D. reports. “The third judge, Debra Ann Livingstone, said less, and what she did say seemed more in line with the district court’s perspective… At the end of the 80-minute hearing, the justices reserved their decision, which could take as long as six months.”

Read more in the full article here.

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

Appeals judge expresses doubt towards U.S. government’s e-book antitrust case against Apple – December 15, 2014
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. So it will be decided by the judges. What are there politics? According to experts on this forum we do not need trials, just count the Repubs and Dems and we know if government or corporations win. You see it even in the Supremes corporations are people type rulings. Could save a lot of money and time.

  2. Why the F%$^ does it take 6 months to make up your mind? If the arguments have been heard why the wait?
    The legal system is full of crap. Unresponsive and pathetically slow. It takes years to get to court and years in appeals. Completely useless except to line the pockets of the legal system.

    1. I agree that in this case, which has been in the works for this long, all three judges probably had a very distinct opinion of the merits before argument one was presented. That said, it didn’t take Cote (I reserve the right to call her a judge till she shows some judgement) long to present her opinion. I’d rather have these three settle any personal bias amongst themselves and present a definitive judgement rather than a snap one.

    2. The judges will now go and have their clerks research the relevant law about what points they see as important and which were brought up on appeal, or which may have been given more or less importance during oral arguments. They will discuss it between themselves, or give each other their opinions to review. Then they will write the appellate opinion. Remember, very seldom does a trial court’s opinion become any kind of precedence; it is appellate and supreme court decisions which are precedence.

  3. I want to believe this so bad. But this same journalist thought things were going well in the initial trial, that Apple had succeeded in making Cote rethink her position. I hope he’s right this time.


  4. It’s also not very smart to try to interpret the decision in an appellate case based on the questions asked at oral arguments. It may be that the judge has serious concerns about a given area, or it may be that he/she wants to see what the party will argue when questioned. It’s almost like reading the stars for your horoscope, and then expecting that to actually happen.

  5. Wisdom shines upon the scene:

    but Jacobs’s qualms clearly went much further—seeming to question the government’s judgment in ever having brought the case…. At times Judge Jacobs came close to suggesting that the government had prosecuted the wrong company.

    Wouldn’t it be great if Judge Cote and the DOJ were investigated regarding their motivations for prosecuting Apple? I’d smile! 🙂

  6. I would think the competition argument to be weak since it would only be competitive on iOS devices. Unfortunately their participation in this debacle resulted in prices being affected over ALL ebook sales across platforms that Apple is not willing or able presently to sell to. If they introduced competition it is only in the choices of stores that users of Apple mobile devices can make use of.

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