The Second Circuit late last week granted Apple an administrative stay in its e-book price-fixing case, but in a blistering opposition motion, 33 state attorneys have made their feelings known: Apple, they claim, is blatantly stonewalling. “What Apple really wants is to delay its damages trial at all costs, and it knows that if it can bait this Court into granting any sort of stay—even a short administrative stay—Apple can blow up the trial date that marks the culmination of years’ worth of district-court litigation,” reads a motion from the attorneys. “This Court should not countenance such gamesmanship.”
Despite the states’ strong opposition, however, Apple was given a temporary reprieve from the Second Circuit while it reviews Judge Denise Cote's decision to deny Apple’s request for a stay of all proceedings pending its various appeals, including appeals of two key rulings against Apple last month, and to proceed with class notification.
Apple attorneys insist that a stay of all proceedings should be granted because, if Apple prevails on any of its appeals the litigation "will radically change." Most urgently, Apple claims that class notification should be stayed, because if Apple prevails on its appeal, notifying "millions of current or prospective Apple customers that they may have been subjected to a price-fixing scheme," would damage Apple's reputation "in a way that cannot be repaired."
But “the alleged emergency” the states told the Second Circuit, is no emergency at all—merely a transparent attempt to stall. The states have argued—and Judge Cote agreed—that Apple was already allowed to delay the class notification process significantly, moving it from fall of 2012, until after its June 2013 liability trial. But most glaringly, there is no “irreparable harm” at stake to Apple.
“E-book consumers already have received two notices that are materially indistinguishable from the forthcoming notice that stirred Apple’s unpunctual demand for emergency relief,” the states told the court. “And even if consumers ignored those prior notices, they likely would have read or heard about the antitrust judgment, which was reported in every newspaper from Bangor to Seattle.”
While it is unclear how long the stay will last, the states concede that the July 14 trial date is now all but lost, acknowledging that "even a single day’s stay" would likely postpone the joint trial on damages. And that, they claim, is precisely Apple's goal. “It is apparent that Apple views delinquency as an optimal litigation strategy,” the states claim.
This is not the first time Apple has been accused of dubiously stalling the case. At the end of 2013, DoJ attorneys accused Apple of "trumping up" concerns with its external monitor. That claim eventually led to Apple's first administrative stay from the Second Circuit, but Apple's bid to stay the monitor was nixed by the Second Circuit.
