DOJ Spells Out Law in Final Argument to Judge in Apple Ebook Suit

Following a week of testimony orchestrated by Apple that seemed to move Judge Denise Cote from her previously held position favoring the government’s case, the Department of Justice put together an impressive slideshow outlining its final argument, topped by a spelling out of the laws at issue as defined by previous court judgments. At the end of the presentation, the DOJ proposed how the Judge should penalize Apple for its actions should it lose the case.

Conspiracy:

“To establish a conspiracy in violation of Section 1, the Plaintiffs must ‘present direct or circumstantial evidence that reasonably tends to prove that the [defendants] and others had a conscious commitment to a common scheme, designed to achieve an unlawful objective.'”

Price-fixing:

“Restrains that are per se unlawful include horizontal agreements among competitors to fix prices or to divide markets.”

And:

“Horizontal agreements among competitors to fix prices…have manifestly anticompetitive effects and lack any redeeming virtue.”

 

The bolding is the DOJ’s. Throughout the rest of the 119 page presentation, in sections titled with the bold phrases, the government laid out its case. Following those three sections, the government discussed the illegality of price fixing and all the evidence it amassed that Apple and the publishers were working in concert if not together.

The DOJ proposed the following final judgment to Judge Cote:

— Prohibit agency pricing for two years
— Prohibit retail price most-favored nation clauses for five years
— Prohibit Apple from further antitrust law violations
— Prohibit Apple from retaliation or descrimination
— Require Apple to have an antitrust compliance program
— Require its executives have antitrust training
— Requite an independent monitoring trustee
— Allow third-party booksellers to reinstate hyperlinks

See the full presentation here.

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