A final scheduled conference before the long-awaited June 3 e-book price-fixing trial took place in Manhattan yesterday, and while most of the agenda was set to focus on various motions pertaining to expert witnesses, witness lists, and other housekeeping matters, DoJ attorney Mark Ryan asked Judge Cote to share her initial impression of the case. In what Reuters called “a blow” to Apple, Cote said her “tentative view,” was that the government will likely be able to prove Apple’s guilt in coordinating a conspiracy to raise e-book prices. Although she stressed that no final decision would be made until after the trial, she added that she was already at work on her opinion.
In a statement one would expect, Apple attorneys said they “strongly disagreed” with Cote. The revelation from Cote is not, however, a blow to Apple, merely a reflection of the case, attorneys told PW, and probably not a surprise to Apple attorneys.
“For Apple, this is going to be a ‘facts’ case,” said Christopher Sagers, an antitrust law professor at Cleveland State University who has followed the case closely. “Apple is going to have to prove that the facts alleged by the government are incorrect, because if the government proves what it alleges at trial, Apple surely loses.”
Sagers said he personally viewed the government’s case as “very, very strong,” built on an array of documents and direct testimony, including e-mails and depositions from all the top executives from the big six publishers, as well as Apple.
Apple will also now have the full attention of prosecutors, after Penguin this week announced its settlement with the states and the consumer class, a $75 million deal that will have a final price tag that could top $90 million once fees and other costs are added in.
