Apple is doubling down its bid to get its price-fixing damages trial out of the hands of Judge Denise Cote. In a summary judgment filing made public this week, Apple argues that Judge Denise Cote is biased, and should recuse herself from the proceedings that could determine Apple’s money damages for e-book price-fixing.
In the filing, (made public this week but dated February 21st), Apple argues that previous statements made by Cote show that the judge “cannot serve as an impartial arbiter” in deciding whether Apple should pay damages in the state and consumer class actions now pending before the court.
Specifically, Apple attorneys note that Cote, in her January 13 order denying Apple a stay of its external monitor, expressed her view that “consumers of e-books—including Apple’s own consumers—suffered hundreds of millions of dollars in harm,” and that “the federal Government and the plaintiff States were forced to expend taxpayer money to bring the harm to an end.”
Such “unprompted statements,” Apple attorneys argue, “demonstrate that the Court has already decided what Plaintiffs must “conclusive[ly]” prove” in its bid for summary judgment.
The motion comes as Apple, in a concurrent motion reported last week, argued that Judge Cote does not have jurisdiction to preside over the state and consumer class action trials, only pretrial activity, and asked that Cote remand the cases back to their original jurisdictions (Northern California for the consumer class action, and Texas for the state action) for trial.
That request for a remand, however, is of no use to Apple in the summary judgment phase, which is pretrial activity, after which Cote could effectively decide the case, without going to trial. Thus, the argument that Cote is biased ramps up the pressure on her to remand the case immediately, or, to recuse herself from ruling in the summary judgment proceedings.
“If the Court does not remand,” Apple argues in its brief, “it should refer adjudication of this [summary judgment] motion to a magistrate judge—without the possibility of review by the Court—or to another district judge."
Failing Cote’s decision to step down, or to remand the case, Apple nevertheless argues that the plaintiffs’ motions for summary judgment should be denied, following the playbook it laid out in an initial pretrial conference.
Among Apple’s key arguments, that a class has yet to be certified in the case—and Apple has argued that the a class should not be certified at all. “Plaintiffs put the cart before the horse, seeking hundreds of millions of dollars in damages on summary judgment on behalf of an uncertified and non-existent class,” Apple argues. “But Plaintiffs cannot represent this phantom class before it is even certified.”
Second, Apple disputes the degree to which collateral estoppel applies—that is, the degree to which Cote’s findings in Apple’s DoJ trial translate into liability in the consumer and state class actions. “Plaintiffs seek to extract hundreds of millions of dollars in damages from Apple based on nothing more than the shortcut of collateral estoppel,” Apple argues. But the “abstract and generalized findings” of the plaintiff’s expert witnesses do not establish “the concrete and particularized harm to each individual putative class member that Plaintiffs must conclusively prove here."
In its motion for summary judgment, the plaintiffs, citing an expert report from Stanford economist Roger Noll, have put the potential damages, with trebling, at $840 million.
And finally, as the damages determination hinges entirely on expert testimony, Apple argues that the expert models offered are insufficient and/or inaccurate, and that Noll's study is inadmissible.
Reply briefs on both Apple’s motion to remand the case, and Apple’s opposition to summary judgment are due on March 7.