Dispatches from the E-Book Wars


Apple’s e-book fortunes in the Southern District of New York darkened and then brightened this past week as Judge Denise Cote denied Apple’s request to stay its upcoming damages trial and plaintiffs’ class notification. Later in the week, however, the Second Circuit issued a temporary administrative stay and referred the full motion to a three judge panel.

On April 23, 2014, Judge Cote held enough already, i.e., the damages trial, which had originally been set for May and is now scheduled for July, had been delayed long enough. Apple was seeking to stay the trial pending its appeal of Judge Cote’s July 2013 finding (in a separate US Department of Justice Action) that Apple had violated the antitrust laws by conspiring with a group of major publishers by entering into “agency” pricing arrangements.

After Judge Cote certified a nationwide class of plaintiffs on March 28, Apple also sought to stay the required class notification. But the class plaintiffs objected, arguing that any delay of class notification would inevitably push the July 14, 2014 trial back even further. Texas Assistant Attorney General Eric Lipman also weighed in, opposing the stay.

Judge Cote sided with the plaintiffs (as she has a time or two in this matter).

As with other prior rulings in this case, Apple sought immediate appellate relief, filing a motion to stay with the Second Circuit the same day as Judge Cote’s April 23 ruling (Apple had, perhaps, prepared these papers in advance). Apple argued that it is likely to succeed on appeal, and allowing the class notice and trial to proceed now would cause irreparable harm to Apple’s reputation.

On April 25th, the Second Circuit granted a temporary administrative stay and referred the matter to a three judge panel to consider the full stay request.

We will continue to keep an eye out for any new developments in this case.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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