Apple Loses Appeal in eBook Antitrust Case

6528091409_fee5aae8da_bWe’ve been waiting over 6 months for the 2nd Circuit Court of Appeals to render a verdict on Apple’s latest bid to overturn the 2013 judgment that it had violated US antitrust laws, and the day of jubilee has arrived.

A divided federal appeals court on Tuesday said Apple orchestrated a conspiracy with five publishers to increase ebook prices.

By a 2-1 vote, the 2nd US Circuit Court of Appeals agreed with District Court Judge Denise Cote that the conspiracy violated federal antitrust law, and that the judge acted properly in imposing an injunction to prevent a recurrence.

Writing for the majority, Circuit Judge Debra Ann Livingston said that by organizing the conspiracy, “Apple found an easy path to opening its iBookstore,” while ensuring that market-wide prices rose to a level that Apple and the publishers wanted.

The dissenting judge disagreed, obviously. Judge Dennis Jacobs conceded to Judge Cote’s finding of fact but still argued a “two wrongs make a right” argument. He believed that the rule of reason should be applied

Apple’s conduct, assessed under the rule of reason on the horizontal plane of retail competition, was unambiguously and overwhelmingly pro- competitive. Apple was a major potential competitor in a market dominated by a 90 percent monopoly, and was justifiably unwilling to enter a market on terms that would assure a loss on sales or exact a toll on its reputation.”

Apple is probably going to appeal to the US Supreme Court; would you care to make a bet on their chances?

image by GDS-Productions

(Reporting by Jonathan Stempel in New York, editing and additional detail provided by Nate Hoffelder)



  1. Frank30 June, 2015

    Apple will appeal, but I think SCOTUS will not hear the case.

  2. fjtorres30 June, 2015

    Two chances: slim and none.

  3. Rob Siders30 June, 2015

    But, but, but …. Amazon! Why? Why? Why? Why?

  4. Chris Meadows30 June, 2015

    Didn’t Judge Cote in her original decision lay out why Apple should lose under rule of reason, too?

    1. Nate Hoffelder30 June, 2015

      I think so.

    2. Rob Siders30 June, 2015

      I remember it that way, too.

      Hope you’re feeling better, Chris.

    3. Tim Wilhoit30 June, 2015

      Yes, she convincingly argued it both ways. Apple’s actions could be considered either “per se” illegal or illegal by rule of reason. She was very thorough and her opinion was designed to be fairly bulletproof in an appellate court.

  5. Frank30 June, 2015

    I was mistaken earlier, Apple already settled this suit last year if they lost on appeal. This will not go before SCOTUS.

    1. Nate Hoffelder30 June, 2015

      It was a multi-part settlement which hinged on the court case. Had Apple won this appeal, they would have paid very little.

      1. Chris Meadows30 June, 2015

        And I don’t think the fat lady sings on that payment until the issue of SCOTUS is settled anyway.

  6. Chris Meadows30 June, 2015

    I just love how this is turning out. It’s coming out right in line with the early legal experts who insisted Cote had done a land office job of making the opinion effectively appeal-proof. “But noooo!” all the Apple and publisher partisans insisted. “It’ll get overturned because we want it to!

    We can see how well that’s worked out for them so far, can’t we?

    And Apple’s comment in response is just as good. “We know we did nothing wrong back in 2010,” they insist…which is pretty darned funny given that they’re about the only one whose opinion doesn’t count in the courtroom.

  7. […] you may recall, a few weeks back Apple lost the appeal which would have overturned the 2013 ruling. That lost appeal triggered one of the terms of […]

  8. […] numerous petty appeals, that ruling was upheld earlier this year by the Second Circuit Court of Appeals, and Apple filed an appeal to the US Supreme Court in […]


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