As expected, Apple attorneys have petitioned judge Denise Cote for a stay of all proceedings in the damages phase of its e-book price-fixing case. The motion comes after Cote handed down two key rulings against Apple last month, which Apple plans to appeal, including an order granting class certification in the state and consumer class actions, and an order striking Apple's two expert witnesses from its damages trial. Remaining defiant, Apple attorneys insist that Apple will prevail on its appeals, and that the court should thus stay proceedings until those appeals have been ruled upon by the Second Circuit.
"Over the past nine months, this Court has entered a series of significant rulings in this litigation, all against Apple, and all involving highly contentious, controversial legal issues that Apple is likely to prevail on before the Second Circuit," Apple’s brief opens. "Indeed, should Apple prevail on either its appeal from the underlying merits or its forthcoming [appeal] from class certification, the entire landscape of this litigation will radically change, and the damages phase ordered by this Court will be mooted or require a retrial. Accordingly, the Court should exercise its discretion and stay these proceedings."
If a stay of all proceedings is not to be granted, Apple attorneys asked that class notice at least be stayed, arguing that prematurely sending notice to consumers before the appeals court has ruled could cause Apple “irreparable harm,” lead to "confusion" among consumers, and a waste of resources should Apple ultimately prevail.
"Here, the anticipated harm to Apple is particularly acute, given that plaintiffs seek to notify millions of current or prospective Apple customers that they may have been subjected to a price-fixing scheme that resulted in higher prices for e-books," the brief states. “Apple’s reputation would be damaged by this class notice in a way that cannot be repaired if Apple prevails on appeal."
Attorneys said, however, that a stay of class notification would essentially amount to a stay of all proceedings, since the case cannot realistically move to trial until the process is complete. In addition, Judge Cote is also considering a plaintiff motion for summary judgment, which is now fully briefed.
Plaintiff attorneys have until the end of the week to file their opposition to a stay, and Apple will then be allowed to file a reply before Judge Cote decides.
