Why didn’t Apple executives (or, for that matter, the publishers) face criminal charges in the antitrust lawsuit stemming from agency pricing? Until now, the theory I had heard was that it was because none of the actions the publishers or Apple had taken was illegal by itself—there were no examples of bribery, falsifying documents, or any other overtly criminal activity. Everything they did would have been legal if they’d only done it by themselves; the antitrust violation came about because they got together and elected to do it all at once.
However, this New York Times article asks the same question and draws some different conclusions.
Why were no criminal charges filed? The Justice Department’s antitrust division chief, William J. Baer, recently noted that the department had filed 339 criminal antitrust cases since President Obama took office, many of them on charges of price-fixing. The issue is, of course, moot with Mr. Jobs, who died in 2011. But his co-conspirators in the publishing industry may have benefited from the relative novelty of e-books. “There’s a traditional reluctance to go for criminal liability over novel practices,” Professor Hovenkamp said. “There was probably some thinking that with e-books, the technology was so new, and it was disruptive. It’s tough to prove mens rea,” or criminal state of mind.
The article points out that the e-book affair is far from the only questionable dealings Jobs had. There was also the matter of Apple fomenting mutual agreements with many major Silicon Valley firms not to “poach” each others’ employees, and an issue of finance regarding backdating some stock options. But even when Apple did falsify documentation (as they did in the stock options matter), Steve Jobs basically skated, probably due to his “reality distortion field.”
[Steve Jobs biographer Walter] Isaacson added, “The rules just didn’t apply to him, whether he was getting a license plate that let him use handicapped parking or building products that people said weren’t possible. Most of the time he was right, and he got away with it.”
Of course, it’s academic now, at least where Jobs himself is concerned, since he passed away almost three years ago. (Found via The Passive Voice.)