In a twist of timing, just as Apple announced its newest iteration of iPhones to much fanfare this week, Amazon has emailed Kindle customers the court-mandated notice of Apple’s recent deal to settle damages in its e-book price-fixing case.
Except for the specific terms, the notice was similar to those issued regarding the previous publisher settlements, and directed users to the same website for information. According to Judge Denise Cote’s preliminary settlement approval, notice was required to be issued by September 15.
Those consumers who now wish to “opt out” of the settlement (that is, not to receive payments and to retain their legal right to sue) must do so by October 31. More importantly, however, that is also the date by which requests to receive a check rather than an account credit must be submitted, otherwise settlement funds will be issued as direct credits.
Notably, unlike the publisher settlements, the credits issued in the Apple settlement can be used for any “product or service” offered by the retailer credited. In the publisher settlements, refunds had to be spent on books, whether print or digital.
Next up, motions for final approval are due by November 14, and a final fairness hearing is set for November 21, in Judge Cote’s Manhattan courtroom. While Judge Cote approved the previous publisher settlements from the bench after their final fairness hearings, it is far from clear that she will do so this time. Certainly there is no reason to rush—as the consumer notice indicates, the final terms of the settlement are contingent upon how the appeals process plays out—and that could take months, perhaps years.
Under the terms of the settlement, Apple will pay $400 million to consumers if the liability finding survives the appeal process; $50 million if the liability question is remanded or vacated; and nothing if the finding is reversed. Apple's appeal is currently pending before the Second Circuit.
