In a ruling issued on Thursday, U.S. District Judge Denise Cote in Manhattan rejected arguments by Apple Inc. that an upcoming damages trial in the e-books price-fixing litigation shouldn’t be held in her courtroom. Judging from Cote’s latest decision, tempers haven’t cooled since she ruled in July 2013 that Apple is liable for violations of antitrust laws.
“Apple’s motion is made for tactical purposes of delay,” Cote wrote. “By its statements and conduct throughout this litigation, Apple has repeatedly manifested its consent to a single trial on damages and to that trial occurring in this venue.”
The U.S. Department of Justice brought civil claims against Apple and five book publishers in April 2012, alleging they struck anticompetitive pricing agreements when Apple entered the e-books market. State attorneys general have brought identical claims. And there’s also a related consumer class action spearheaded by two firms, Hagens Berman Sobol & Shapiro and Cohen Milstein Sellers & Toll.
The book publishers all settled, but Apple has steadfastly argued that its actions were pro-competitive. The DOJ and the state AGs made their case in a liability-only bench trial before Cote last summer. Cote handed them a forceful bench verdict in July 2013, rejecting arguments by Apple’s lead defense lawyer, Orin Snyder of Gibson, Dunn & Crutcher.
Apple’s next test is a July 14 damages trial in the AG suits and the class actions. The plaintiffs are seeking $840 million.
In a February 2014 motion, Apple sought to derail the damages trial. The company argued that the state AG litigation and the class action should be remanded to Texas and California, respectively, where they were originally filed. Apple argued that the Judicial Panel on Multidistrict Litigation only consolidated those suits with the DOJ case for pretrial purposes.
In Thursday’s ruling, Cote recited the litigation’s entire procedural history for the sole purpose of illustrating how Apple long ago waived any right to make its jurisdictional argument. “Had Apple indicated early in this litigation that it sought multiple trials in connection with damages, that application could have been addressed in due course,” Cote wrote. “By reversing course shortly before the damages trial, Apple is seeking some tactical advantage at the expense of its adversaries.”
Cote’s ruling comes one day after she denied a separate motion in which Apple sought to delay the trial, as Reuters reported here.
Apple is represented on appeal by Theodore Boutrous Jr., Daniel Swanson, and Cynthia Richman of Gibson Dunn, as well as by Howard Heiss and Edwards Moss of O’Melveny & Myers.