John Paczkowski

Recent Posts by John Paczkowski

Judge in E-Book Pricing Case Thinks Apple’s Going Down; Apple Begs to Differ

Steve_iBooks_croppedApple hasn’t formally argued its position in the U.S. government’s e-books antitrust case against it; indeed, the trial hasn’t even begun. Yet already the federal judge presiding over the hearing has gone on record as saying Apple is likely to lose the case.

Asked during a pretrial hearing Thursday for her thoughts on a likely outcome, U.S. District Judge Denise Cote said her view is that the U.S. Justice Department will prevail over Apple.

Said Cote, “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.”

Though delivered with a caveat noting that she has not yet reviewed all the evidence in the case, and that her view was delivered without “the benefit of the testimony of the witnesses and further argument from counsel,” Cote’s remarks are a little unusual, to say the least, and don’t bode particularly well for Apple’s chances at trial.

That said, they also don’t reflect particularly well on Cote’s impartiality. The case hasn’t even been heard, and she has just gone on record saying she is reasonably certain that the plaintiff will win. And while her comments don’t quite rise to the level of smack talk that undermined Thomas Penfield Jackson’s ruling in the United States v. Microsoft case, one could imagine them resurfacing at a later date in an appeal if this trial goes south for Apple. Cote here is commenting on a potential outcome for the case without having heard testimony from Apple’s witnesses or the cross-examination of the DOJ’s witnesses. That’s a crucial test of truth. And if this case does end up in appeal, Cote’s apparent prejudging here could be harmful to her ruling.

Apple disputed Cote’s remarks and characterized them as premature.

“Apple fundamentally disagrees with the judge’s preliminary comments,” Apple attorney Orin Snyder told AllThingsD. “We look forward to presenting our side of the evidence and bringing our witnesses to court. We will prove that Apple did nothing wrong and that consumers greatly benefited from Apple’s entry into a new and emerging market.”

The case heads to bench trial on June 3.


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