Apple iPad with e-book reader software (Imagostock)
The plaintiffs’ lawyers and 33 state attorneys general who have accused Apple Inc. of e-book price-fixing have finally revealed the details of their proposed settlement with the tech giant, which was first disclosed in vague terms a month ago.
The deal calls for Apple to pay between $450 million and nothing at all, depending on what a federal appeals court does with a July 2013 liability verdict from Southern District Judge Denise Cote in Manhattan.
New York Attorney General Eric Schneiderman, one of the A.G.s involved in the suit, said in a news release that New York consumers could expect to see about $7 million from the deal.
“This settlement proves that even the biggest, most powerful companies in the world must play by the same rules as everyone else,” Schneiderman said. “In a major victory, our settlement has the potential to result in Apple paying hundreds of millions of dollars to consumers to compensate them for paying unlawfully inflated e-book prices. We will continue to work with our colleagues in other states to ensure that all companies compete fairly with the knowledge that no one is above the law.”
New York is represented by Assistant Attorneys General Bob Hubbard and Linda Gargiulo; Acting Antitrust Deputy Bureau Chief Geralyn Trujillo; Antitrust Bureau Chief Eric Stock; and Executive Deputy Attorney General Karla Sanchez.
Lead plaintiffs’ counsel Steve Berman of Hagens Berman Sobol Shapiro informed Cote of an agreement in principle on June 17 but didn’t disclose the specifics. According to a motion to approve the settlement filed with the judge on Wednesday, If the U.S. Court of Appeals for the Second Circuit affirms Cote’s ruling that Apple conspired with publishers to fix e-book prices, Apple will pay $400 million to consumers, plus $50 million in attorney fees and payments to the state A.G.s. If the appeals court instead vacates Cote’s verdict and orders a retrial on liability, Apple will pay $50 million to consumers and $20 million in attorney fees and payments to the state A.G.s. If the Second Circuit tosses the case entirely, Apple pays nothing.
The proposed deal avoids a damages-only jury trial scheduled for later this year. According to Wednesday’s motion, an economist retained by the plaintiffs would have pegged damages at $280 million. If jurors agreed with that estimate, Apple’s liability would have worked out to $674 million after automatic trebling and an offset for the $166 million in settlements the plaintiffs collected from five book publishers that allegedly conspired with Apple. By opting for the settlement, Apple avoids that worst-case scenario and can focus on its argument to the Second Circuit that it did nothing wrong.
Hagens Berman and its cocounsel at Cohen Milstein Sellers & Toll have reason to like this deal as well. They had the momentum going into the scheduled damages trial, but no guarantee of a blockbuster verdict. So they locked in a $450 million payment, contingent on a win at the Second Circuit. And in the event the Second Circuit orders a new liability trial, they’ll still get significant attorney fees and a $50 million payment to the class—not to mention the $166 million in combined settlements from the book publishers.
“When we pioneered the theory that Apple and its publishing coconspirators worked together to wring money from consumers through this complex scheme, we knew we would be in for a difficult fight,” Berman said in a statement. “In any case of this magnitude, there are high degrees of uncertainty, and Apple’s appeal of Judge Cote’s well-reasoned ruling is an example of that uncertainty.”
Kristin Huguet, an Apple spokeswoman, said in a statement that the company is looking forward to pressing its appeal at the Second Circuit. “We did nothing wrong, and we believe a fair assessment of the facts will show it,” she said.
Theodore Boutrous Jr. and Daniel Swanson of Gibson, Dunn & Crutcher are leading Apple’s appeal. The company is also represented in the e-books litigation by attorneys at O’Melveny & Myers and Simpson Thacher & Bartlett.
@|Jan Wolfe is a reporter for Law Journal affiliate Litigation Daily. He can be reached at email@example.com. Brendan Pierson of the Law Journal contributed to this story.