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

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

Less than a month ago, Judge Cote found Apple liable for knowingly participating in an illegal price-fixing conspiracy with five book publishers to raise e-book prices and eliminate price competition in violation of the antitrust laws.  This morning, the Department of Justice, joined by thirty-three state attorneys general, filed a brief in support of their proposed remedial injunction which would require Apple “to take proactive steps to ameliorate the harm its conspiracy caused to competition and consumers” including by permitting any e-book retailer offering e-books through Apple’s App Store “include in its e-book app a hyperlink to its own e-bookstore, without paying any fee or commission to Apple.”  A hearing on remedies is set for August 9.
Continue Reading DOJ and State AGs Propose a Remedy in Apple E-Books Price-Fixing Case