RPR&C In The Media


Forbes – DOJ Wins Ebook Antitrust Case: What’s Next? Will Apple Appeal? – quote by Jerry Reisman

July 10, 2013 Posted in: RPR&C In The Media

By Jeremy Greenfield, Contributor

Judge Denise Cote has ruled against Apple in the closely watched ebook price-fixing antitrust case that played out in lower Manhattan in June. The company has been found guilty by the court of colluding with trade book publishers to raise the prices of ebooks at the detriment to consumers. A damages hearing will be held soon to determine how much Apple will have to pay. 

But, there is a chance Apple won’t have to pay anything at all.

The tech giant is likely to appeal the decision, said Jerry Reisman, an antitrust lawyer and partner in the Garden City, NY-based law firm Reisman, Peirez, Reisman & Capobianco.

“Apple certainly has a right to appeal and will most likely do that,” he said. “Most companies of Apple’s size have the ability to take an appeal and seek to have the decision below reversed.”

Should Apple appeal, the case will go to the 2nd Circuit Court of Appeals, which is also in New York. The court will review all the same evidence that Judge Cote did, look at the law which applies to the case and then do one of three things: Affirm the ruling; reverse the ruling; or send it back to the lower court for a clarification of its decision. In some rare cases, the 2nd Circuit could modify the damages that Judge Cote will determine in the upcoming hearing. The whole process could take a year, said Reisman.

If Apple loses again, it’s unlikely that the company would have the opportunity for another appeal. The next court up is the Supreme Court, which generally only sees “novel” cases, said Reisman, adding, “Not that this is not a new and novel issue — control of ebook publishing,” but it might not be novel enough.

According to Reisman, Apple’s chance of winning on appeal isn’t very good, citing the facts of the case as well as the poor precedent of having lost in trial. 

As for damages that Apple will have to pay, Reisman believes they will be “substantial” and based on Apple book sales during the era of agency pricing, though he would not speculate further.