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Judge Cote Ignores Apple’s GrandStanding – Tells Them to Direct Their Complaints to the DOJ

Apple may Tall Federal Courthave lost the price-fixing anti-trust lawsuit but that doesn’t mean they have given up the pr battle or stopped filing ridiculous complaints with the court.

Late last week Apple filed a brief which complained about the activities of Michael Bromwich, the court appointed anti-trust monitor. Apple wasn’t too happy with the fees he was charging nor with the way Bromwich was going about his business (he wanted to meet most of the senior management).

Apple’s filing got a lot of attention in the blogosphere over Thanksgiving weekend, but it appears that the Judge Cote wasn’t as impressed. She issued a ruling today that basically told Apple to follow procedure and stop grandstanding (my word, not hers).

The judge noted that there was an established process for complaints or conflicts, and that Apple should have directed their communications to the Dept of Justice. “Objections are to be conveyed in writing to the United States and the Plaintiff States within ten calendar days after the action giving rise to the objection,” Cote wrote. They should only have requested a conference with the judge if Apple and the DOJ were unable to resolve the issue.

Judge Cote declined to comment upon Apple’s complaint about Bromwich’s $1,100 hourly fee or the nearly $140 thousand worth of billable hours which he had generated, but she did order only that “any compensation shall be on reasonable and customary terms.”

And here is where I came to the conclusion that Apple’s complaints were ridiculous. $1,100 an hour might seem like a princely sum, but not when you compare it to what Apple’s outside law firm charges. According to Fortune:

Many of the top partners at Apple’s own outside counsel on the e-book matter, Gibson Dunn & Crutcher, bill more than $1,000 an hour, and its appellate ace, Ted Olson, reportedly charged $1,800 per hour on one bankruptcy matter in 2012.

That puts Apple’s gripe in a different light, doesn’t it?

It’s kinda silly to complain about a senior partner of a DC law firm charging about the same as what Apple’s own lawyers might charge, but that is Apple for you.

For the most part Apple went home empty-handed, but the judge did grant one of Apple’s pleas. Apple had complained about a ruling dated 21 November that enabled the external monitor to communicate directly with the judge on his duties, without counsel present.  Judge Cote reversed herself and ordered that there will be no “ex parte communication by the Monitor with the Court regarding the performance of his duties as Monitor.”

But that is all Apple got, which makes me wonder why exactly they filed the brief. Were the lawyers really that ignorant on proper procedure? I don’t think so, and that’s why I label this latest shenanigan as grandstanding. I think Apple didn’t expect the judge to do anything; they just wanted the publicity.

IMO this latest development casts Bromwich’s letter to Apple in a different light. Last week, when Apple was complaining to the court, Bromwich sent Apple a letter (PDF) which discussed Apple’s efforts to control his actions, which AllthingsD summed up as saying:

  • You people seem to think I’m working for you. “Apple has sought for the last month to manage our relationship as though we are its outside counsel or consultant,” he wrote in a letter to Cook and his board last week.
  • My fees are reasonable, and you have no idea what a reasonable fee looks like. Also, it doesn’t matter if you think my fees are reasonable, because you don’t get to negotiate them: You just pay them. The court will approve them.

At this point he is the more reasonable party, I think.

It’s almost looks as if Apple doesn’t realize that they lost the anti-trust trial a couple months back, doesn’t it?

image by rocketdogphoto

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fjtorres December 3, 2013 um 5:31 pm

They are deep in the Reality Distortion Zone, buying their own PR.
They really think nobody is the boss of them.

Paul December 3, 2013 um 10:06 pm

I think Apple thinks there’s nothing lost in making these complaints, particularly when Amazon still has a dominate market share of the ebook trade. The scrappy underdog and all that.

It did seem odd that he wanted to interview so many people unconnected with the court case, particularly as it turns out Samsung used material from their court battle documents to try and gain an illegal competitive advantage over Apple. I think part of what they were trying to do was connected to that.

Mackay Bell December 3, 2013 um 11:05 pm

Preventing the judge from having secret meetings with the monitor is huge. That’s what they really wanted and they got it. The other complaints were probably there so she could knock stuff out and not completely lose face backtracking on something unreasonable she was pushing for. Also, they clearly sent a message they don’t intend to give this monitor an inch, which is certainly going to clip his wings, since he knows his every move might be publicized. He’s already now on the defensive and he hasn’t even done anything. You think he wants it out in the press that he wanted to meet Jony Ives, or even that his salary is less than Apple’s lawyers?

I predict Apple is going to win this big on appeal. And they’re acting like they know it.

Nate Hoffelder December 3, 2013 um 11:24 pm

Yes, the ex parte meeting were inappropriate, but I would hope you are wrong about the rest. If you’re correct then it would mean that Apple is playing dirty. That’s even worse than grandstanding.

Mackay Bell December 4, 2013 um 1:06 am

If the ex parte was inappropriate (like a lot of this judges actions), then Apple is hardly playing dirty by defending themselves. There has always been something fishy about this whole case, it certainly had little to do with protecting customers from monopolies. Maybe there are people in government that wanted to get their hooks inside Apple, and hoped that a court appointed monitor with unlimited powers and a secret line of communication would be the way to do it. Seems appropriate for Apple to put it’s foot down before there was mission creep.

fjtorres December 4, 2013 um 7:33 am

There’s a lot of wishful thinking out there in Apple land.
And a lot of misconception about antitrust punishments.

First, all the legal analysis out there on the Apple ruling made it clear there was nothing legally odd about the ruling; it is a textbook antitrust conspiracy violation and if the ruling were to be magically overturned, a hundred years of law would go with it.
The appeal is going to fail.
Get used to it.

Second, antitrust penalties are not cut and dried. They can and are revisited. That is the reason for monitoring. But "revisited" works both ways; they can be reduced for good behavior and they can be *increased*. Apple and their fans seem to think dragging their heels and filing truckloads of paper to annoy the Judge will reduce the impact of monitoring so they can keep the light out of their dark holes. They are mistaken. The harder they make the monitoring, they likelier that the penalties get extended or, worse, deepened. Forced divestment remains an option.

Third, antitrust violations are akin to felony convictions in criminal cases; once convicted, you lose a lot of rights. Like presumption of innocence. And a right to secrecy. The monitor has a right to see everything. If he wants to, he can follow the board of directors to the executive bathroom. Mission creep is impossible because the scope of the mission is whatever the monitor deems relevant. Just ask Microsoft. If the monitor wants to sit in at a board meeting, he can. Deny him access and he’ll want to know why. And he’ll dig deeper and longer to find what further malfeasance they are trying to hide. Resistance will only lead to alternative, harsher, penalties. And public grandstanding will only increase the pressure, not reduce it.

Apple’s foes are just drooling at the opportunities that Apple’s antics are opening up.
Resistance isn’t just futile, it is counterproductive. Playing rabid wolf when they need to be a lapdog will only get them shot.

Mackay Bell December 4, 2013 um 9:16 am

The monitor can’t just do anything he wants. The judge limited his scope in the initial order. And that’s also why she backed down instantly on the ex parte communication.

The Microsoft case is completely unrelated, they actually had a monopoly. Apple didn’t in Ebooks, and still doesn’t. That’s what stinks about the original decision. You can’t enforce anti-monopoly laws against someone trying to break into a business, which is what happened in Apple’s case. Apple not only should fight the ruling for it’s own good, but also for the good of all businesses who want to be free of unnecessary government overreach.

There is currently a very pro-business supreme court majority. Apple has the juice to get it appealed to the supreme court. They will win.

Nate Hoffelder December 4, 2013 um 9:40 am

This case was never about an ebook monopoly; that is a straw man argument.

This case was always about the conspiracy between Apple and 5 publishers which resulted in higher ebook prices. And it is pretty damned clear that there was a conspiracy.

And if Apple did nothing wrong then why did the 5 publishers settle? Why did no one in publishing dispute whether the conspiracy happened? What about the email trail and other evidence showing the discussions?

Ray Kumar December 5, 2013 um 12:45 am

"…then why did the 5 publishers settle? Why did no one in publishing dispute whether the conspiracy happened?.."

Well, Macmillan first resisted and then settled with the DoJ in Feb’2013.

Macmillan CEO John Sargent in this letter posted online explains why.

fjtorres December 5, 2013 um 6:33 am

That letter is self-serving spin.
Anybody who looks over the evidence presented at trial can see they were all ineptly guilty. They left tons of evidence all over implicating themselves and each other so that when the first three settled and opened up their files, the DOJ had all the evidence needed to convict the rest.
It is typical of cartel-busting that once the gig is up, the first to own up get more lenient treatment and the most recalcitrant gets hammered. And it is typical of antitrust that the level of resistance is seen as a measure of the willingness (and intent) to reincide, especially with repeat offenders.
Which is why Apple’s grandstanding is so dangerous.

Nate Hoffelder December 4, 2013 um 9:48 am

And you’re also wrong to imply that anti-trust law is focused on monopolies; the focus is on preventing a market from being harmed by a supplier or a cabal of suppliers forcing prices to go up, selection to go down, etc.

A monopoly isn’t needed for that too happen, and monopolies aren’t necessarily evil (see AT&T, death and rebirth). It’s the harm to the free market that matters.

fjtorres December 4, 2013 um 11:11 am

The case was about six companies conspiring to raise consumer prices.
The conspiracy is clearly documented in the email documents, the increase in prices is equally well documented.
As is Apple’s habit of serial conspiracies.

And, if it comes to abuse of market power, the trial proved Apple abused their Appstore market power against Random House to force them to join the conspiracy. If it comes to monopoly issues, Apple’s Appstore is the only monopoly relevant to the case.
Apple doesn’t understand they are getting off easy and that there are worse penalties (still) available to the DOJ and the court.

Mackay Bell December 5, 2013 um 10:00 am

There was no evidence the market was harmed, and the judge refused to consider evidence the market was actually helped by the competition.

The actions of the publishers, and the actions of Apple trying to make a deal with the publishers are very different. The emails clearly indicate that the agency model was an issue the publishers were pushing for, not Apple.

Apple had the option to settle. They have some pretty smart lawyers. The fact they’ve chosen to fight this indicates they think this is an important issue. (Certainly, their share of the book market isn’t a big part of their profits.)

At best, the Justice Department was radically expanding the scope of their anti-trust powers. At worse, they were blackmailing Apple (who has been forced to hire more lobbyists to kiss up to the government) or working for Amazon’s business interests.

Deciding, in advance of any evidence of harm to the consumers, that certain new business practices should be forbidden, strikes me as a serious abuse of the laws. And again, this is something the pro-business Supreme Court could easily take an interest in. And something that other companies might support Apple on in the long run.

Betting against Apple is also usually a mistake.

Nate Hoffelder December 5, 2013 um 10:10 am

No evidence?

The DOJ hired a consultant who charted the increase in ebook prices around the time that Agency was enacted:

That right there is all that is needed to show that consumers were harmed.

flyingtoastr December 5, 2013 um 10:33 am

Technically, higher prices =/= harm. Harm in antitrust law has almost nothing to do with prices, it’s all about competition.

Tim Yu December 6, 2013 um 8:58 pm

"That right there is all that is needed to show that consumers were harmed."

This statement betrays a limited understanding of the definition of consumer harm, and I think it explains why you are coming down on the wrong side of this issue. Consumer harm boils down to not only price but choice and innovation, and it is the latter two dimensions that Apple’s entry into the market expanded.

Colleen December 4, 2013 um 10:52 am

…or the well paid lawyers wanted some more billable hours.

Mackay Bell December 5, 2013 um 10:03 am

Hey Nate, you need at least one Apple fan boy to keep the debates lively!

Nate Hoffelder December 5, 2013 um 10:57 am

@flyingtoastr (I’m starting anew because I think we got 5 replies in.)

In this case you are splitting hairs. The 5 publishers conspired with Apple to increase their ebook prices, and then they worked together to force Amazon to go along. They clearly blocked Amazon from competing on price, which is why the market price for ebooks published by the 5 publishers went up.

fjtorres December 5, 2013 um 11:35 am

Antitrust and conspiracy law is about *how* things happen.
If the idiots had taken turns raising prices, say one each month for five months, they might have been in the clear.
All five doing it at the same time, by the same amount, and *publicly* stating they were acting in concert? BZZT! Penalty box, suckers!

Ray Kumar December 5, 2013 um 11:25 am

OT: Nate, is there a way to unsubscribe after electing to subscribe to receive email alerts to a comment thread?

Nate Hoffelder December 5, 2013 um 11:28 am

I’m sure there is a way for you to do it, but I don’t know where it is (in the email, maybe).

Do you want to be unsubscribed from this topic? I can do it.

Ray Kumar December 5, 2013 um 11:39 am

Thanks Nate. There is a link in the email alert to manage subscriptions. I took care of it.

pieeye December 6, 2013 um 3:52 am

1 – A lawyer lacking qualification on antitrust matters appointed to oversee antitrust matters?

2 – A matter related to price fixing subjected to monopolistic pricing terms?

Are you joking by agreeing with the USSR judgement/commissar implied by the Cote/Bromwhich approach? Can’t believe your stance.

Nate Hoffelder December 6, 2013 um 7:10 am

According to the press release:

Bromwich, a litigation partner in Goodwin Procter’s Washington, D.C. and New York offices, is a member of the firm’s Securities Litigation & White Collar Defense Group. He specializes in internal investigations, compliance and monitoring, and has led major internal investigations for companies, audit committees, special committees and special litigation committees.

It looks to me like he has a fair amount of experience related to the job he’s going to do. TAbd just to be clear, this isn’t anti-trust. He’s an external monitor, which makes more of an investigator/auditor. The anti-trust part is over; it’s time for the monitoring to begin.

fjtorres December 6, 2013 um 7:56 am

For the record: a proper communist approach to the Apple problem would be to nationalize the company, send all the executives to a slave labor camp, and use Apple’s $150B cash stash to bailout Detroit.
Apple, by contrast, is being asked to abide by the same laws as every other corporate citizen. The penalty is roughly equivalent to a suspended sentence with parole; the monitor is an on-site parole officer, no more, no less…

Nate Hoffelder December 6, 2013 um 8:58 am

The gulag is not a slave labor camp! It is a reeducation resort for recidivist capitalist exploiters of the proletariat. It is the only safe place where the executives can be protected from the just wrath of their victims. That is the only reason why it exists.

fjtorres December 6, 2013 um 11:13 am

Understood, comrade.
Not to be confused with the massive new tech castle Apple is building, which is more defensible than any gulag ever built. Plenty of room within for serf residences, too.

Nate Hoffelder December 6, 2013 um 11:23 am

Goodpoint. I was planning to call Apple HQ "Isildur’s Bane" once it was built but perhaps we could call it the kremlin instead.

Steve Nagel (@snitstwits) December 6, 2013 um 12:39 pm

Hmm. "The arrangement is flatly unconstitutional. Special masters are typically imposed on a company to remedy a pattern of especially egregious conduct using a settlement consent decree in which litigants agree to the terms of the appointment."

Nate Hoffelder December 6, 2013 um 12:46 pm

I would not trust that article. It includes nonsense like "She essentially ruled before hearing the evidence." and "whereupon Mr. Bromwich had a tantrum."

Funny, I read his letter and i wouldn’t describe it as sulky, a tantrum, or anything other than lawyerese.

Steve Nagel (@snitstwits) December 6, 2013 um 12:58 pm

And again: "Compliance monitors are usually required in cases where a defendant has acted egregiously over a long period of time, manifesting longstanding contempt and resistance to the law."

Nothing compares to your own nutty use of the term grandstanding, Nate. Really, you are better than this.

fjtorres December 6, 2013 um 1:28 pm

And Apple has in fact engaged in egregious violations of antitrust law over a decade or more. *Repeatedly*. This isn’t their first time on the docket. So, as repeat offenders, the compliance monitor is the least of the penalties that fit.
In fact, there are three distinct antitrust violations documented and they’re, so far, getting a free pass on the third and worst.
Again, Apple is playing with fire here and they’re the ones that are going to burn.

Tim Yu December 6, 2013 um 8:39 pm

What "egregious violations of antitrust law over a decade or more" has Apple violated "*repeatedly*"?

I look forward to your entertaining response.

fjtorres December 6, 2013 um 8:58 pm

You do know Apple conspired with a bunch of Silivalley companies to screw their own employees, right?
That they settled the federal case but are facing a class action suit for back wages, right now?
Do your own research, so you’ll see where the money for Job’s castle is coming from.

Tim Yu December 6, 2013 um 9:10 pm

Lol. THAT is what you are referring to with your (ahem) grandstanding but conveniently vague claim of egregious, repeated violations?

Thank you for confirming my suspicions.

Steve Nagel (@snitstwits) December 6, 2013 um 9:47 pm

Painting Apple as some kind of outlaw org makes everything you say suspect. Silliest comment I have read all week. But thanks for the laugh.

fjtorres December 7, 2013 um 5:59 am

Another conspiracy that ran for years, initiated by Apple, coordinated by Jobs himself, and fully documented in the public record.
You may choose to pretend it didn’t happen but the feds know conspiracy and cheating is the order of the day for Apple execs and they acted accordingly. Hence the monitor.
Apple is not being singled out for "cruel and unusual" penalties, they are merely getting the treatment their deeds have earned.
The sheep’s clothing doesn’t fit this wolf very well; their predatory ways are too visible to buy them as innocent victims.

Tim Yu December 7, 2013 um 4:38 pm

Lol. First come dark implications that Apple has a long-standing, nefarious history of repeatedly screwing the consumer, but when pressed, it turns out you are referring to the "don’t cold-call my employees" policy that Google, Intel, Adobe, Intuit, Pixar, and Ebay were also wrist-slapped for…

"Coordinated by Jobs himself"… "predatory ways"… I enjoy a little rhetorical sparring from time to time, but this is laying it on a little thick, IMO.

Nate Hoffelder December 6, 2013 um 1:52 pm

Apple raised issues in their latest appeal that they knew would not be addressed by the judge but would get media attention. What is that of not grandstanding?

Also, did you notice how she did not address the issue of constitutionality? None of us are legal experts but if that were a legit issue I think she would have had to address it.

Bux December 6, 2013 um 3:47 pm

"Apple raised issues in their latest appeal that they knew would not be addressed by the judge but would get media attention. What is that of not grandstanding?"

Lots of that was material that will be considered by appellate judges (and probably also by its lobbyists in Washington).

fjtorres December 6, 2013 um 4:36 pm

No, those issues will not be addressed by the appeals court.
The appeals process is not a second trial. All the panel does is look at the facts established in the trial and decide if the law was properly applied. Every legal analyst that has read the judge’s ruling has found it bulletproof in documenting facts and applicable law. And then, to add a cherry atop the sundae, the judge documented the specifications and outright lies told by Apple and BPH witnesses.
And since appeals courts are not subject to (legal) lobbying that ruling is going to stand. GUILTY. GUILTY. GUILTY.
To the gulag with the lot of 'e-mail. 🙂

Steve Nagel (@snitstwits) December 6, 2013 um 9:54 pm

At this point, I’d say the judge is a bit of a dimwit, especially in her handling of the monitor.

Nothing Apple does does not get media attention. The only grandstanding I see is your headline.

Nate Hoffelder December 6, 2013 um 10:46 pm


Do me a favor and find 5 legal experts who have posted an analysis of her Apple ruling and described it as unsound. If you can’t then there is no reason to doubt her abilities and her judgement. And if she got the ruling right then it is a huge hole in your claim that she is a dimwit.

And yes, Apple’s every move results in headlines. But in this case the headline is the one that Apple picked because it was juicy (the $140k in fees) and not one that was legally relevant. What is that if not grandstanding?

Steve Nagel (@snitstwits) December 7, 2013 um 10:41 am

Nate, you find five experts who support the judge’s handling of the monitoring of Apple. Looks boneheaded to me: She picks a buddy; backdates her scheduling of his work; does not secure agreement from Apple. Not to mention that the monitoring itself may have been wrong as an outcome. See the two links I provided. Where’s yours?

I had no idea Apple picked its headlines; I am sure it doesn’t in 99 percent of cases. See yours above.

Steve Nagel (@snitstwits) December 7, 2013 um 10:58 am

You do realize, Nate, that using headlines like this makes you as big or bigger a parasite on Apple as any pro Apple journal? Amazon headlines, who would give a hit, right?

Steve Nagel (@snitstwits) December 7, 2013 um 2:00 pm

So being the worm feeding off of Apple as you chosen to do, Nate, how does your behavior give you the seeds to preach about anybody else’s wrongdoing?

Steve Nagel December 8, 2013 um 2:34 pm

Here’s a link to material that makes Nate’s arguments here laughable. Truly laughable.

Nate Hoffelder December 8, 2013 um 2:57 pm

Bob Kohn’s comic predates the trial and misses the point.

The DOJ did show that prices went up and they showed that the crazy pricing claims were nonsense (in other words Amazon wasn’t pricing below their marginal cost). Also, he is wrong on the importance of efficient prices. The agency prices were not efficient because the balance between supply and demand was deliberately out of equilibrium.

Bux December 6, 2013 um 2:07 pm

Wow. This post and this thread are incredible.

Somewhere in the middle, between the arguments made by Apple’s critics and it’s detractors, between Judge Cotes critics and her detractors…lies the truth. It’s doubtful that she’s completely out of the woods and saying that Apple is totally off-base in it’s post-trial arguments is likely to prove wrong as well.

Complicated cases take a long time to get to the final truth. The first case makes great fodder for online arguments, but first judgements rarely survive unscathed all the way through the appeals process. She’s already amended the ex-parte part of her original judgement. Stay tuned for more.

Mackay Bell December 7, 2013 um 9:10 pm

So if there are only 3 legal experts who have posted an analysis of Cotes Apple ruling and described it as unsound (and the Wall Street Journal Editorial page) then Apple is in the wrong?

How many decent legal experts have the time to write blog posts? What is the agenda of those who do? Is it possible that the legal "experts" who have the most time to write blog posts are the one’s who’ve failed as real lawyers? Is it possible that many get support from (or are just straight on the payroll of) companies that want to undermine Apple?

Gee, I guess I’ve got this all wrong. I thought I should read stuff, try to figure out what is being said and who is saying it, and make up my own opinion.

You really think it’s better to just count the amount of spin?

Nate Hoffelder December 7, 2013 um 10:08 pm

If that were truly a bad ruling then it would not be hard to find 5 experts pointing out its flaws, and everyone from Forbes to WSJ to Business Insider would be inviting the experts to pen a column.

But you won’t find 5, which undercuts his claim that the judge is a dimwit.

Mackay Bell December 8, 2013 um 2:40 am

Nate, I find your whole “find 5 experts” argument really strange. I’ve been following the coverage of this thing from the beginning and it has always been a controversial case. There are plenty of legal experts who question it. Mainstream news coverage typically plays half and half, with them quoting half the experts saying it was a good ruling, and half the experts say it was flawed. A typical example is:

While hardly arguing in Apple’s favor, it suggests the ruling is a little fishy: "… it does raise a question that begs for an answer even more loudly now than before her verdict: Why the Justice Department chose to prosecute the new entrant in the e-book market, and not the monopolist?"

Here’s AP’s article on the ruling:

Other than representatives of both sides of the case, it only quotes one independent legal expert, Ankur Kapoor, an antitrust attorney with the law firm Constantine Cannon, who states: "Apple has a good chance to win in its appeal. "

He’s also quoted in the Los Angeles Times article, which hardly makes it look like the case is uncontroversial:

"I think Apple’s chances are even stronger at the Supreme Court," Kapoor said. "When it comes to antitrust, this is a very conservative court."

Does he count as an expert? Ignoring the recent Wall Street Journal hit piece, here’s a clearly negative piece on Judge Cotes ruling from back in August:

"Lawyers have complained for years that she pre-judges cases before she enters the courtroom." Get that. Lawyers. Lawyers complaining about Cote for years. It also mentions that the Department of Justices suggested remedies were "bizarre."

You want more expert dirt on Judge Cotes? At a website called, "The Robing Room" where judges are judged. Various lawyers (anonymously) offer their opinions of her:

"Judge Cote was openly biased against Apple before the ebook case began. She remains openly hostile to Apple now. Her predisposition shows limited knowledge of how new technology like the iPad comes to market. Apple has no choice but to appeal her ruling. But first it has to overcome her bias against, and lack of understanding of, how dramatically new technology and business operate."

On another case: "In a complex administrative law matter, Judge Cote exhibited many of the unfortunate qualities expressed by others here. It seemed clear that she had pre-judged the case and the parties before hearing the merits, and proceeded to rule accordingly without regard for the facts and law."

Here’s another: "Judge Cote’s pre-disposition and bias are evident from the first moments she is encountered in the Courtroom and her inability to even allow a contrary opinion to be expressed is manifested by cutting counsel short, and, if necessary, hanging up the phone on them (during a transcribed phone conference), to ensure that a complete record is not developed that would enable an appeal of her unsupprtable and prejudicial opinions. Wouldn’t want to let the facts get in the way. Bad news for the bar."

Another lawyer states Judge Cote is: "Arrogant, condescending, smarmy."

Yet another: "It is not surprising that a government attorney would sing Judge Cote’s praises, given that she is possibly the most anti-plaintiff judge on the bench."

Here’s someone else: "Judge Cote predetermines outcome of the case and consistently rules accordingly even in contradiction to her own orders. She also lacks appropriate judicial temperment and decorum."

Too much general gossip about Cote by unnamed individuals? Here’s a piece questioning her announcing she was already writing her decision – before the trial began:

Here’s a more specific opinion of flaws in the case:

"I have read through the Court’s decision and have concluded that the Court’s reasoning and decision is seriously flawed."

Oh, is that person too much of an Apple fan boy to be an "expert"?

Here’s a long detailed piece before the trial by a senior editor at CNN (is he an “expert”?):

It ends with “Yet even though it’s still hypothetical, highly contingent, and years down the road at best, it’s hard not to already hear Justice Antonin Scalia’s taunting voice at an oral argument, caustically demanding: "Mr. Buterman, can you name another case in which we have held that a company violates the antitrust laws by 'sharpening the incentives' of a contractual partner to act in certain ways?"

Here’s an earlier piece on flaws in the ruling by the Wall Street Journal:

If the Wall Street Journal too biased, here’s a carefully though out piece by an “expert” on publishing:

You want something more “legal” more lawyerly? Well, lawyers don’t generally rant. Here’s a piece where they dryly comment about the case:

Both major lawyers quoted hardly say the case was a slam dunk, or that Apple has no chance of appeal. Like most of the very lawyerly “experts” that talk about it, they are generally cautious. (Who wants to needlessly slam the justice department?)

Here’s a very careful legal opinion by very qualified legal experts, who also don’t blast either side:

But if you read their conclusion, while not taking sides, they warn business: “engaging in a innovative new strategy can be risky… the Apple case represents a split among federal courts over the question… of a horizontal conspiracy…”

They hardly say this was case where Apple was obviously wrong.

Here’s another very legalistic opinion:

Doesn’t take a stand either way. But urges companies to proceed cautiously based on the ruling. Which clearly means they don’t think Apple was being reckless.

Here’s from Annotations, O’Connor’s Your First Source for the Law:

Just a dry piece, but it quickly points to Philip Elmer-Dewitts attack on the decision. So it acknowledges there is controversy.
Here’s another piece which quotes a real lawyer, Andre Barlow, a former Justice department lawyer and now a partner at an antitrust firm, who states: “Apple made a lot of headway in explaining their actions and how their model came about…”

They conclude that the decision was wrong and that Apple needs to “fight this fight as far as it can.”

And here’s a really nice quote from a very qualified legal expert:

Yale Law School anti-trust professor George Priest told Forbes he is not certain the decision will stand and the new method of selling ebooks invented by Apple is “a good thing.”

In conclusion, a brief scan of the internet concludes:

1. There are expert lawyers (Yale Law School professors even) who are willing to go on the record against the decision.

2. Lawyers who don’t argue one way or another, warn business to be careful because the ruling seems to break new ground. (Certainly not an obvious violation.)

3. There’s tons of dirt, before and after the trial, questioning Judge Cotes.

4. Plenty of opinion pieces, many quoting experts by name, arguing strongly against the ruling.

So, Nate, what the heck are you talking about saying I can’t find five experts who think the ruling was flawed? There are plenty of people, lawyers, scholars, reporters and tech experts who think that. I’d say, at best, the coverage is 50-50. Those in favor of the ruling, mostly quote Cote and the Justice Department.

For you to pretend that this hasn’t been a controversial case, and decision, seems an odd and “flawed” approach. That’s my expert decision.

Nate Hoffelder December 8, 2013 um 8:08 am

This post was initially caught by my filter due to the many links. I almost didn’t let this comment through; it raises so many irrelevant points that I think it rises to the level of spam. Or perhaps I should say that you’re trying to snow me in a blizzard of links, but the comment is up now so who cares.

In trying to support the argument that the ruling is flawed (and that she is a dimwit) you have presented anonymous slander, numerous articles from before the trial began (and are thus irrelevant), 2 biased posts (Macs Futures and Scholarly kitchen – I can’t believe you missed the bias), several articles from the day of the ruling which all cite the same expert who vaguely claimed that Apple could win on appeal, a couple factual summaries from lawyers, and little actual analysis.

I wish you had filtered out the snow. For example, this piece you mention counts for squat because it is a summary of press coverage and because it relies on an article that was clearly biased and got its facts wrong:

And even your factual summaries aren’t as strong as you think they are. This one, for example, is based on press coverage including a CNN money article (Dewitt) which rehashes a biased WSJ rant:

As a result you buried the actual evidence in with the snow. Your best arguments were the several allegations of prejudging cases and other possible misconduct, and these 2 links:

Nate Hoffelder December 8, 2013 um 10:21 pm

To continue from my last comment, I think the allegations of pre-judging are probably the most damning. If they’re true then it could show that there’s a chance the judge overlooked evidence. That could be grounds for an appeal.

It’s certainly worth waiting to see what happens.

Mackay Bell December 10, 2013 um 10:06 am

You’re the one that asked for all the links to "experts" who question the Judges ruling. I didn’t take the time to filter them, because I wasn’t clear what exactly you were requesting. I never said she was a "dimwit." My point was there has always been controversy. Which I proved. I’m glad I found two links you liked.

It is, however, likely that any detailed thoughtful analysis (for either side of the argument) has not been written yet since the case is still evolving rapidly. They made be created after a final conclusion. But if you show me links to five expert opinions that support the judge’s decision written in the style, length and with the quality of "expert" you find relevant and I’m sure I can find five of the same that offer the contrary opinion. That is, that the Judge was wrong, that Apple is right to appeal, and that Apple has a good chance of winning the appeal.

Steve Nagel December 8, 2013 um 3:02 pm

Don’t miss the cartoons on Fortune Apple 2.0 today. Nate’s arguments on toast.

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