Justice of the Future: Ebook Price-Fixing Judge Has Crystal Ball

Expert publishing blog opinions are solely those of the blogger and not necessarily endorsed by DBW.

Please correct me if I’m wrong, but isn’t it grossly inappropriate for a judge presiding over a case to say that she’s pretty sure the plaintiff will win before the case has been heard?

Last night, news came out that Judge Denise Cote, who is presiding over the U.S. vs. Apple ebook price-fixing trial set to start the week after next said, “I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that.”

According to Reuters (which has some of the best reporting on this saga so far), Judge Cote hasn’t read all of the evidence (outrageous, given her prediction) but did stress that her premonition wasn’t final (a relieving qualifier that feels like a band-aid on a severed leg).

[Insert reference to film Minority Report.]

While Reuters calls the move “unusual,” I have not yet spoken to any lawyers or those who might know about how unusual it really is. Perhaps it’s not so out of the ordinary for a judge to predict the future like that about a case over which she is presiding.

I have several emails out to lawyers who might be able to shed light on this. I will update this post as necessary.

UPDATE: Several lawyers, including a litigator who has knowledge of such matters, have responded to me privately and strictly off the record due to the sensitive nature of this case. Apparently, given that Judge Cote has seen some of the evidence and much of it has been made public, it’s not “outrageous” that she shared her views thus far with the lawyers for the plaintiff and defendant. That said (and digested), it still offends my sense of fairness.

Disclaimer: I have no strong opinion on who should win the upcoming trial between Apple and the U.S. over the issue of ebook price fixing. My tone of outrage in this short post is based entirely on my sense of justice. It’s simplistic, but I just imagine going into the principals office to settle a dispute with a fellow classmate (let’s call him Eric Holder) and having the principal say before she hears what has happened, “well, I haven’t heard what has happened, but I think Eric Holder is probably right.” Now, in terms of my opinion of who will win, if I were a betting man, I’d bet that the U.S. will win, and I’ll give you odds, too. 

2 thoughts on “Justice of the Future: Ebook Price-Fixing Judge Has Crystal Ball

  1. Paul Sadler

    The \simplest\ interpretation of her comments is the same for criminal charges (i.e. Grand Jury type considerations) or a regular lawsuit (i.e. preliminary evidentiary hearings) — she’s basically saying that, looking only at the evidence so far from the DoJ, there is sufficient evidence to justify charges / filing of suit and sufficient evidence to proceed to trial i.e. DoJ has a valid prima facie case. In other words, there’s a real case based on their evidence, and she wouldn’t rule summarily against DoJ and toss the case as Apple has been suggesting in the press.

    I’m not sure it is unprecedented, just unusual. And, it may be that the judge is openly telling Apple and others, \stop pretending there’s nothing here and it’s a witchhunt, cuz you’d better have something to back up your claims of innocence since the evidence of DoJ by itself is significant\. Put differently, \Yes, Apple, you will need an actual defense beyond ‘we didn’t do that’\. It also is common if not standard practice, although usually after the plaintiffs/state presents its case, for a judge to basically say to the defendants, \There’s something here…if you were thinking of settling and saving the state a whack of money, now’s the time to do it.\

    I’ve seen a few business trials where the judge VERY CLEARLY said at the end of the plaintiff’s case, \Go settle this, cuz the plaintiffs have a case.\ It doesn’t mean she’s ruling in their favour, but she is very clearly saying \Smoke and mirrors is not going to save your butt, so you’d better have a good defense coming.\

    From a personal perspective, I think Apple has a valid legal argument — they’re going to say (as they have repeatedly) that they didn’t conspire, they did a valid business deal with six multiple vendors at the same time with standard terms for all. The fact that five of the \co-conspirators\ colluded (and have settled) doesn’t mean that Apple was part of the conspiracy/collusion, any more than the sixth was part of it but didn’t attend the meetings. DoJ says Apple was involved, Apple says it wasn’t, but DoJ has enough to pursue a case.

    Heck, if I was Apple’s lawyer, I’d be saying the same thing as the judge — yes there’s a legal argument here, but when five co-conspirators settle and likely agree you were part of it, you’re not walking away on your charm.

    I think Apple should have settled without admissions, but as many in the industry have pointed out, one condition of settling is having DoJ actively monitoring your business from the inside, and that’s not a lot of fun. Some claim it killed IBM.


  2. Theresa M. Moore

    “stop pretending there’s nothing here and it’s a witchhunt, cuz you’d better have something to back up your claims of innocence since the evidence of DoJ by itself is significant”

    I thought that one is innocent until proven guilty. In this case, discussing ideas at the dinner table, last I heard, does not constitute price-fixing. Unless the DoJ had a fly on the wall it has no legs to stand on. That those publishers acted independently with the same mind is at issue here, and even then, the DoJ should have included Amazon, since Amazon adopted the agency model long before the other 6 and is acting to drive prices so low that publishers and authors are being squeezed out of the market for lack of a just and fair royalty from a sale. Notice also that the prices of e-books are rising again anyway, since no one can afford to pay for a bowl of soup from what it earned. The lack of value for intellectual property is causing authors to reconsider the idea of selling e-books to begin with, too, so this had better be “musings” on the part of the judge, or she should recuse herself.



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