In an opinion issued this week, Judge Denise Cote shot down Penguin’s request for a jury trial to hear the remaining state and the consumer class action cases against them. “Penguin’s March 15, 2013 motion for a jury trial on the States’ claims is denied,” Cote ordered, holding that it was “clear that Penguin, along with all other litigating parties, knowingly and intentionally waived a jury determination of liability on the States’ claims.” The decision means that, barring a last minute settlement, Penguin will be joining Apple at the defense table on June 3 as the bench trial gets underway in the long-running e-book price fixing case.
In its March 15 filing, Penguin had argued that its December settlement with the DoJ “materially changed” the legal landscape for them. Although the publisher had initially agreed to a bench trial before Cote for the consolidated claims, following the DoJ settlement, Penguin attorneys argued they never waived their right to have a jury hear the remaining state claims.
Cote, however, in an opinion that recalled the full, twisting legal path of the case to this point, ruled that Penguin “conspicuously and voluntarily” waived its right to a jury trial during an October 26 conference, and later confirmed that waiver through its conduct, and that “all litigating parties clearly understood that the States’ claims would be addressed at the June Bench Trial.”
She also held that Penguin’s settlement in the DoJ action “had no effect on the nature of the States’ claims” to be adjudicated by the Court at the June bench trial.
“The Government and the States each claim that Apple entered into a conspiracy with publishers to fix prices of certain e-books. The nature of the conspiracies alleged necessarily means that evidence bearing on the intent of the publishers, even of those alleged conspirators who have settled claims, will be relevant at trial. The Court will not at this stage force the parties to conduct a second liability trial resting on duplicative evidence.”
The decision paves the way for the long-scheduled June 3 bench trial to begin as scheduled, although Penguin could still avoid joining that trial by settling with the states and the consumer class.
