Apple Asks US Supreme Court to Overturn eBook Antitrust Decision

8117938684_1600c5ba68_hApple has asked the US Supreme Court to overturn an appellate court decision that found the iPad maker conspired with five publishers to increase e-book prices.

Apple asked the high court on Wednesday to review a June ruling that favored the U.S. Department of Justice, and found the company liable for engaging in a conspiracy that violated federal antitrust laws.

If upheld, the decision would also force Apple to pay consumers $450 million under a 2014 settlement with 33 state attorneys general and consumers that was contingent on the company’s civil liability being upheld.

Apple in its petition said the June decision by the 2nd U.S. Circuit Court of Appeals in New York contradicted Supreme Court precedent and would “chill innovation and risktaking.”

“The Second Circuit’s decision will harm competition and the national economy,” Apple wrote.

The Justice Department declined to comment on Thursday.

The 2nd Circuit’s ruling followed a July 2013 decision by U.S. District Judge Denise Cote after a non-jury trial that Apple played a “central role” in a conspiracy with publishers to eliminate retail price competition and raise e-book prices.

The Justice Department said the scheme caused some e-book prices to rise to $12.99 or $14.99 from the $9.99 price charged by market leader Inc.

Publishers that the Justice Department said conspired with Apple include Lagardere SCA’s Hachette Book Group Inc, News Corp’s HarperCollins Publishers LLC, Penguin Group Inc, CBS Corp’s Simon & Schuster Inc and Verlagsgruppe Georg von Holtzbrinck GmbH’s Macmillan.


It’s worth noting that Apple’s appeal also argues that the appeal’s court decision “threatens to subject pro-competitive vertical conduct to categorical antitrust condemnation, contrary to this Court’s repeated recognition that vertical conduct often enhances competition and its repeated decisions ‘to temper, limit, or overrule once strict prohibitions on vertical restraints.'”

As expected, Apple is arguing that Judge Cote erred in ruling Apple’s actions illegal per se under the Sherman antitrust act, rather than analyzing the conspiracy under the rule of reason. Judge Cote had raised that point in her ruling, but it was limited to a single paragraph.

Apple also points out that two of the three judge appellate court, including one of the judges that upheld the district court ruling, had concluded that Apple’s actions were legal under the rule of reason.

Apple could well be right, but even if it wins the most likely outcome is that Judge Cote will pen a 40-page ruling explaining in detail how Apple’s conduct was illegal under the rule of reason.

Should that happen we will likely be in for another two years of appeals.

(Reporting by Nate Raymond and by Nate Hoffelder)

image by FoolishMastermind



  1. Geoffrey Kidd29 October, 2015

    If we’re lucky, the Supreme Court will invite Apple to follow Socrates’ advice to “Know thyself.” but mean “know” in the biblical sense.

  2. Syn29 October, 2015

    *”The Second Circuit’s decision will harm competition and the national economy,” Apple wrote.*

    Harm competition? What competition. This whole mess was because they didn’t want to work to compete against Amazon. Apple more then anyone had the deep pockets to innovate instead of colluding with the publishers because they didn’t want to go toe to toe with Amazon.

    Its to bad they didn’t. Those two going at it would have been great for innovation and us.

  3. Mackay Bell30 October, 2015

    Actually, Judge Dennis Jacobs in his circuit court dissent carefully stepped through all of Apple’s options for entering the ebook market and concluded that Apple took the most logical and legal approach. If Apple, for example, followed Amazon’s practice of selling ebooks below cost, it could have also found itself in violation of anti-trust laws. (The way anti-trust laws are supposed to work, as opposed to Judge Cote’s invention of how they should work.) His full dissent is worth reading. You can be sure the Supreme Court will read it:

    And I don’t think anyone is going to care if Cote writes 40 or a million pages about why Apple might be guilty under rule of reason. Two of the three circuit court judges have already ruled that it wasn’t. So why would we care what she thinks? This is all over her head. The least likely ruling will be to send it back to her for more of her nonsense.

  4. Tom Semple30 October, 2015

    It seems the most likely outcome here is that the court will decline to grant a hearing to Apple:


    “How many cases are appealed to the Court each year and how many cases does the Court hear?

    “The Court receives approximately 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75-80 cases.”


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