Apple is arguing that the damages phase should be delayed because they fully expected to win the appeal they filed in the 9th Circuit. "Over the past nine months, this Court has entered a series of significant rulings in this litigation, all against Apple, and all involving highly contentious, controversial legal issues that Apple is likely to prevail on before the Second Circuit," Apple’s brief opens. "Indeed, should Apple prevail on either its appeal from the underlying merits or its forthcoming [appeal] from class certification, the entire landscape of this litigation will radically change, and the damages phase ordered by this Court will be mooted or require a retrial. Accordingly, the Court should exercise its discretion and stay these proceedings."
Apple has also asked that if the entire proceeding can't be delayed, at least the class action notice should not be sent to consumers because it would lead to irrepairable harm to Apple should they win their appeal. "Here, the anticipated harm to Apple is particularly acute, given that plaintiffs seek to notify millions of current or prospective Apple customers that they may have been subjected to a price-fixing scheme that resulted in higher prices for e-books," the brief states. “Apple’s reputation would be damaged by this class notice in a way that cannot be repaired if Apple prevails on appeal."
On a related note, it's worth noting that this petition has many similarities to another appeal Apple filed in January. In that appeal Apple went over Judge Cote's head and tried to get a 3 judge panel to block the court-appointed antitrust monitor from performing his duties. In that appeal Apple claimed that the presence of the monitor would cause irreparable harm to Apple's internal processes. That appeal went over like a lead balloon, and I expect that this petition will meet with equal success.
Given that Judge Cote has consistently ruled against all of Apple's delaying tactics, it is unlikely that she will rule in their favor in this petition.
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