Damage estimates in the Apple e-book case have run into the hundreds of millions dollars, but before a final number can be determined, Apple’s liability for money damages under various state statutes must be established. That determination of liability will now have to be made by Judge Denise Cote. While the judge had ordered Apple and the plaintiff states to confer on a stipulation of liability, Texas Attorney General Greg Abbott this week suggested that the talks between the parties has reached an impasse.
“The parties have met and conferred with regard to the States' civil penalties claims, and intend to continue this dialogue in hopes of narrowing the issues in dispute,” Abbott told the court in a letter made public this week. “It appears likely, however, that at least some issues will need to be presented to the Court.”
That outcome was largely expected. In September, Cote had ordered the plaintiff states and Apple to confer on the stipulation regarding Apple's liability for civil penalties, but should those talks fail, to propose a briefing schedule for presenting the issue to the court. With the talks now unlikely to yield a stipulation, the parties have proposed a briefing schedule: the states' opening brief to be filed no later than January 8, 2014; Apple's opposition brief to follow by February 10; and the states’ reply by March 7, 2014. The case remains on schedule for a May damages trial, which is expected to last two days.
The latest wrangling comes after Judge Cote ruled on July 10 that Apple had violated federal antitrust laws by participating in a conspiracy with five publishers to eliminate retail price competition from the e-book business. An injunction was issued to address the federal charges, but the court must now determine to what extent that determination of liability in the federal case translates into liability (and money damages) in the concurrent state and consumer class action cases.
In October, an expert for the states had put Apple’s damages at roughly $308 million, which after trebling could rise as high as $924 million, Apple attorneys acknowledged in a filing. Apple, meanwhile, has remained defiant, and has been fighting hard in the damages phase, not only contesting its liability, but also challenging class certification in the class action case.
