Apple will appeal ruling allowing external compliance monitor to continue in e-books case

Posted:
in General Discussion edited March 2014
Apple has officially notified the court that it will appeal this week's ruling denying the company's request for the external compliance monitor imposed as part of the government's e-book antitrust suit to be disqualified.

Appeal


The notice states that Apple intends to fight "all of the Court's rulings adverse to Apple in its January 16, 2014 Order, and the Court's modifications to the Plaintiff United States' Final Judgment." Theodore Boutrous of Gibson, Dunn & Crutcher, Apple's lead counsel in the case, submitted the notice on Apple's behalf.

Apple's filing comes on the heels of a Monday hearing in which Judge Denise Cote rejected the company's motion to remove the court-appointed monitor, Michael Bromwich, from that post. Apple has taken issue with Bromwich's handling of the monitorship seemingly since the moment he was appointed, accusing him of conducting what the company feels is an overly-expansive, "roving" investigation and charging exorbitant fees.

Judge Cote expanded on her reasoning in a lengthy, 64-page opinion on Thursday in which she said that Apple failed to show "that the Monitor should be disqualified or that Apple will suffer irreparable harm." She also expressed hope that Apple and Bromwich could come to a mutually beneficial arrangement:
The deterioration of the relationship between Apple and the Monitor is unfortunate and disappointing. Hopefully, that relationship can be "reset" and placed on a productive course. But it is strongly in the public's interest for the Monitor to remain in place. A monitorship which succeeds in confirming the existence of a genuine and effective antitrust compliance program within Apple, is in the interest of not only the American public, but also Apple.
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Comments

  • Reply 1 of 29
    rob53rob53 Posts: 2,007member
    "She also expressed hope that Apple and Bromwich could come to a mutually beneficial arrangement:..." Fat chance since Apple knows Bromwich is totally incompetent (he admitted it by needing to hire someone who does) and has no business monitoring anything Apple is doing. Of course, the whole issue is a blatant which-hunt against Apple by the DOJ showing how out of touch they are with the whole e-book industry. If they actually knew anything, they would have gone against Amazon years ago with their predatory pricing instead of going against Apple and the book publishers. The US government has a responsibility to defend publishers as much as customers, something they aren't doing with this case.
  • Reply 2 of 29
    jungmarkjungmark Posts: 6,661member
    Bring it to SCOTUS. Cote will never admit her mistake.
  • Reply 3 of 29
    desuserigndesuserign Posts: 1,316member
    I frankly *still* don't get why Apple's approach was found to be in violation in the first place. If anyone can point me to a clear and cogent interpretation of why Apple's original approach was a violation and Amazon's is OK, please post a link. Thanks.
  • Reply 4 of 29
    desuserigndesuserign Posts: 1,316member
    Quote:

    Originally Posted by rob53 View Post



    "She also expressed hope that Apple and Bromwich could come to a mutually beneficial arrangement:..." Fat chance since Apple knows Bromwich is totally incompetent (he admitted it by needing to hire someone who does) and has no business monitoring anything Apple is doing. Of course, the whole issue is a blatant which-hunt against Apple by the DOJ showing how out of touch they are with the whole e-book industry. If they actually knew anything, they would have gone against Amazon years ago with their predatory pricing instead of going against Apple and the book publishers. The US government has a responsibility to defend publishers as much as customers, something they aren't doing with this case.

    Although I seem to be on the same side as you, just not as virulently:

    "Someone who does" what?

    And what's a "which-hunt?"

    [OK I'm Knit picking you. But maybe take a second or two to read your post before you submit?  ;-)  ]

  • Reply 5 of 29
    desuserigndesuserign Posts: 1,316member
    Quote:
    Originally Posted by rob53 View Post



     The US government has a responsibility to defend publishers as much as customers, something they aren't doing with this case.

     

    Agree with you, but the problem isn't so much defending customers (historically people have always gotten short shrift from the government.) It seems to me that in the past they have always tilted toward publishers (as they are corporate and big business.) Problem is the courts are following their traditional instinct and favoring Amazon as the biggest business with the greatest influence over Apple, Publishers, and last of all, the lowly citizens. 

  • Reply 6 of 29
    jupiteronejupiterone Posts: 1,564member
    desuserign wrote: »
    [OK I'm Knit picking you. But maybe take a second or two to read your post before you submit?  ;-)  ]

    Pardon?
  • Reply 7 of 29
    just_mejust_me Posts: 590member
    Quote:

    Originally Posted by DESuserIGN View Post



    I frankly *still* don't get why Apple's approach was found to be in violation in the first place. If anyone can point me to a clear and cogent interpretation of why Apple's original approach was a violation and Amazon's is OK, please post a link. Thanks.

    http://tidbits.com/article/13912

  • Reply 8 of 29
    desuserigndesuserign Posts: 1,316member
    Quote:

    Originally Posted by JupiterOne View Post

    Pardon?

    I was thinking I might have got that spelling wrong.  :-)

    Understandable though, as I've had no experience with nits.

  • Reply 9 of 29
    desuserigndesuserign Posts: 1,316member
    Quote:

    Originally Posted by Just_Me View Post

     

    http://tidbits.com/article/13912


    Thanks. Very helpful.

  • Reply 10 of 29
    maestro64maestro64 Posts: 4,479member
    Quote:

    Originally Posted by jungmark View Post



    Bring it to SCOTUS. Cote will never admit her mistake.

    This is all too true, I have always said and now research is coming up to back this up, when someone is professional, Like Lawyers, Doctors and Judges along with other professions, when they make a mistake or are found to be wrong they will never admit it, whether they know it or not. There is a reason, if they say they are wrong it calls into question everything they ever done and will do going forward. They can not afford to admit they made a mistake it shows a sign of weakness.

     

    If Apple wins on appeal, she will claim the higher court was wrong before she ever admits she was wrong.

  • Reply 11 of 29
    maestro64maestro64 Posts: 4,479member
    Quote:
    Originally Posted by Just_Me View Post

     

    http://tidbits.com/article/13912


    This person did a very good job of summarizing what happen. The real question is whether Apple realize during the negotiations where this was all heading. From the looks of it, they were taking advantage of a situation, but the fact that Steve wanted all the book sellers on board at the beginning may have put the nail in this. If this was done over a period of time then it may have been different.

     

    However, I have always argued, book are not a commodity and they are not something they you need to buy. The Anti-trust act was done to protect consumer against someone price fixing things like food, or things you need which you can buy the exact same product from any number of sources. In the case of books you can only buy a book from one publisher it is not like you can buy same book from the multiply companies, plus you do not need to buy a book if you want it not a requirement of life and as the article pointed out, prices went up and sell when down so the consumer spoke and the publisher made less money. The market would have correct this issue on its own.

     

    But again it another example of our government trying to make people thing they are helping them. It was all smoke and mirror and dog and pony show for the public.

  • Reply 12 of 29
    There is a great deal of confusion about the business of selling eBooks. While a great deal is known about the business of selling paper books (publisher wholesales to book sellers who then sell to readers), those understandings simply do not apply to digital books. For example, there are no excess eBooks that have to be sold at discount to minimize losses. There is also no secondary (used) eBook market as there is with paper books.
    The Tidbits article cited above errs in this manner when it talks about Apple's negotiated pricing for "hardcover" books. There is no such thing as a hardcover eBook nor is there a digital analog of that status.
    For this to make any sense, we have to forget about paper books and the market that evolved to promulgate them. The eBook is a very different critter and has to be thought of in very different terms. We cannot use paper book concepts to understand digital books and the markets that are evolving to handle them. To ignore this is to equate apples with oranges.
  • Reply 13 of 29
    Quote:

    Originally Posted by DESuserIGN View Post

     

    Although I seem to be on the same side as you, just not as virulently:

    "Someone who does" what?

    And what's a "which-hunt?"

    [OK I'm Knit picking you. But maybe take a second or two to read your post before you submit?  ;-)  ]


    Shouldn't it be nit picking? Unless you really mean you're choosing some kind of woolen material for him, in which case I sit corrected.

  • Reply 14 of 29
    Originally Posted by tdknox View Post

    Shouldn't it be nit picking?

     

    No, he’s talking about when your grandmother gets a particularly stubborn booger right in the middle of her needlepoint.

  • Reply 15 of 29
    rob53rob53 Posts: 2,007member
    Quote:

    Originally Posted by DESuserIGN View Post

     

    Although I seem to be on the same side as you, just not as virulently:

    "Someone who does" what?

    And what's a "which-hunt?"

    [OK I'm Knit picking you. But maybe take a second or two to read your post before you submit?  ;-)  ]


    Sorry, I was doing something constructive instead of explaining my comments.

     

    "Fat chance since Apple knows Bromwich is totally incompetent (he admitted it by needing to hire someone who does)..."

     

    "someone who does" refers to Bromwich and the extra people he hired to do the actual monitoring since Bromwich admitted he knows nothings about antitrust activities. This isn't stated in this article but if you've kept up on the subject, you would have heard it before.

     

    As for the second comment, the spell checker in my fingers wasn't working, just like in yours. Yes, I meant a witch-hunt. I assume you know what that is. As for making comments about my obvious boo-boos, I'm sure just about everyone knew what I meant. At least I didn't capitalize a  non-proper word in the middle of a sentence.

  • Reply 16 of 29
    just_me wrote: »

    From reading the article it would seem the publishers should be held more at fault than anyone since they are the ones that determine prices. Why not let the laws of supply and demand work this. If you raise prices, demand falls. Once demand is so low they start losing money, prices should drop. I can't blame Amazon either, let them run their business at a loss if they want, it still benefits the consumer. Definitely an interesting case
  • Reply 17 of 29
    hill60hill60 Posts: 6,989member
    Quote:

    Originally Posted by Just_Me View Post

     

    http://tidbits.com/article/13912


     

    From your link:-

     

    "Although trade ebooks were only $100 million or so at that time,.."

     

    So the entire eBook market was worth $100 million, of that only a certain percentage were "best sellers" and based on the price of those "best sellers" only anything above $9.99 was apparently "ripped off" from consumers.

     

    Of that Apple made 30%.

     

    How the f*ck can a civil suit by 33 states seek a cool $Billion in damages?

  • Reply 18 of 29
    cash907cash907 Posts: 893member

    So they're appealing the appeal? If they lose this appeal, will they appeal the appeal of the appeal?

     

    Maybe they should just suck it up, accept they got busted, and just fly straight for awhile until a monitor is deemed no longer necessary.

  • Reply 19 of 29
    tenlytenly Posts: 707member
    I don't think what Apple did was wrong in their negotiated agreements - but whatever - they lost the case and the court ordered a compliance monitor. Fair enough I guess.

    The real injustices are that;
    1. The judge appointed a friend as the monitor.
    2. The friend is completely unqualified to do the job he was appointed to do
    3. The friend is investigating things which are completely irrelevant to the issues he was appointed to monitor
    4. The friend is allowed to bill any amount he wants and has chosen to bill an exorbitant amount of money for himself
    5. Due to the friend's vast incompetence, he has had to hire a team of professionals who apparently *do* have experience and competence in this area of law and instead of paying them out of his salary, he is submitting their fees to Apple for additional reimbursement.

    I don't think that Apple is completely against their punishment of having a monitor - but the monitor should:
    1. Be someone who does not have a personal relationship with the judge who is presiding over the case and ordering the monitoring.
    2. Be someone who has the necessary experience, skillset and competence to do the job they are being appointed to do
    3. Be compensated at fair market value for the type of work they are doing and the time it takes them to do that work
    4. Have a very clear and limited scope for their investigation

    How is something that is so obviously crooked allowed to happen in the first place? Incompetence aside, Bromwich should have been automatically excluded as a candidate simply because of his relationship with Cote.

    Such an obvious abuse of power should be investigated thoroughly and this particular judge should be removed from her position and probably thrown in jail herself.
  • Reply 20 of 29
    Great summary, tenly.

    I'm glad that Apple is appealing. Fight the good Fight, Apple, and may you beat the devil.
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