In an opinion Friday, Judge Oetken refused to dismiss a putative class action brought by Applebee’s patrons who allege that the tabletop computer tablets at the Broadway and Times Square locations force customers to leave a minimum tip of either 15% or 18%, and thereby deceive customers into believing tipping is mandatory, in violation of New York’s consumer protection laws.

The defendants argued (among other things) that the social norm of leaving a tip was grounds to dismiss the case, but Judge Oetken disagreed: Continue Reading Judge Oetken Refuses to Dismiss Complaint Alleging that Applebee’s Tabletop Tablets Force Patrons to Tip

In an opinion yesterday, Judge Abrams dismissed a suit by an Upper East Side resident complaining about the opening of an Apple Store “eighty-seven and one-half” feet from his home.  The plaintiff claimed that “there will be a massive increase in pedestrian traffic,” that “the very existence of an Apple store creates and multiplies crowds,” and that Apple’s product launch schedule will cause “the occupation of the neighborhood, its sidewalks, and its streets, by long lines of Apple customers.”  He also complained about the risk of “[m]obile food trucks” popping up and “noisy Rock N Roll concerts.”

Judge Abrams found that the plaintiff lacked standing to sue for this type of spectulative harm: “Despite having amended his complaint more than five months after Apple’s Store opened . . . [the plaintiff] does not allege that this feared parade of horribles has occurred and, indeed, [his] briefing acknowledges that “no disturbances have yet occurred since the June 13, 2015 store opening.”


In a 2-1 opinion yesterday, the Second Circuit affirmed the bench trial findings of Judge Cote that Apple orchestrated a price fixing conspiracy with book publishers to collectively raise the $9.99 per-book price that Amazon was charging and that publishers believed was damaging to their business in the long term. Apple signed contracts with the publishers for its own e-bookstore under an “agency model” (in which the publishers set the price and Apple would take a cut), and those contracts included a “most-favored nations” clause requiring the publishers to price the books in Apple’s store at the lowest offered anywhere else. The Second Circuit agreed with Judge Cote that the intended effect of these terms was to compel the publishers to act together to challenge Amazon’s flat, $9.99 pricing:

Continue Reading Second Circuit Affirms Antitrust Ruling Against Apple in E-Books Case

This morning, Judge Cote issued a written decision reflecting an earlier, oral order to deny Apple’s motion to stay the work of an external monitor pending appeal of the case in which Apple was found liable for antitrust violations relating to the sale of e-books. Judge Cote found that Apple had largely waived arguments about the appointment of the monitor:

Continue Reading In Written Decision Upholding Apple Antitrust Monitor, Judge Cote Urges “Reset” of Relations

In briefing completed this evening, Apple moved to stay the portion of the injunction Judge Cote imposed in the e-books price-fixing case relating to an external antitrust monitor that Apple contends is improperly acting as an adversary in violation of the Constitution’s separation of powers and the federal rules.  (We covered Apple’s earlier objection to the monitor here.  Prior posts on the case, proving more background, are here.) Apple’s moving brief argues:

Continue Reading Apple Seeks to Stay The Work of “Adversarial” Antitrust Monitor Pending E-Books Appeal

In an Order Monday, Judge Cote agreed with Apple’s objection, discussed in the post below, that its external antitrust monitor should not contact the court ex parte. As for Apple’s other objections concerning ex parte witness interviews and the monitor’s compensation, she directed the parties to confer with the government and, if the issues could not be resolved, to write the Court a letter “no longer than two pages.”  We will continue to follow developments.

As part of the remedy for Apple’s antitrust violations relating to the sale of e-books, Judge Cote in September required that Apple employ an antitrust monitor to evaluate its antitrust policies and compliance.  On November 21, Judge Cote, apparently sua sponte, proposed amendments to her final judgment that would allow the monitor, Michael Bromwich, to interview Apple employees and to report to Judge Cote without the participation of Apple’s lawyers. In a filing Wednesday, Apple vigorously objected:

Continue Reading Apple Seeks to Limit Power and Pay of Antitrust Monitor