Only last month, the 2nd Circuit appeals court said that anti-trust monitor Michael Bromwich could continue to monitor Apple in a ruling on Apple’s appeal of Judge Cote’s refusal to dismiss him. Today, the same appeals court issued a similar ruling on Cote’s original verdict, which found Apple guilty of price-fixing and imposed the anti-trust monitor via injunction in the first place.

The ruling was 2:1, with Judge Debra Ann Livingston writing for the majority, finding Cote’s decision was correct and the injunction was “lawful and consistent with preventing future anticompetitive harms.”

Dissenting was Judge Dennis Jacobs, who oddly enough last time around found that Bromwich’s behavior was insufficient to dismiss him. Jacobs agreed to the extent Apple did engage in a conspiracy, but felt Apple was justified in taking the action it did because Amazon was such a strong competitor and the publishers were on a different level of the supply chain than Apple and Amazon, a point of view Livingston felt “endorses a concept of marketplace vigilantism that is wholly foreign to the antitrust laws.”

That appears to be the shooting match. Judge Cote’s ruling has been upheld in full. Apple can ask for a rehearing in front of the three judges who ruled against them, an en banc hearing in front of the entire 2nd Circuit appeals court, or try to take it is the Supreme Court. Once it’s all settled for good, Apple can get started paying out the $450 million in damages that it had agreed to pay if and only if it lost its appeal.

Couldn’t happen to a nicer company.


  1. Well it’s about the best that Apple could hope for since they clearly violated the law. The 2-1 decision lets Apple and their co-conspirators spin it in the media that there was some doubt. Dennis Jacobs gets to disagree without stating any points of law where Judge Cote’s ruling was wrong. I expect that Apple will proclaim disappoint, declare innocence and state it’s time to move on, quietly pay out and hope people forget what they did.

  2. I figure they will appeal, and this will just drag on longer. Of course, since most of my settlement credit will be from B&N, and they got rid of the ability to download books to a computer, I guess I stopped caring a while back. It’s not likely I’d use my Nook credit anyway since I couldn’t get even DRM-free stuff on my Kindle or Kobo.

  3. I just love how this is turning out. It’s coming out right in line with the early legal experts who insisted Cote had done a land office job of making the opinion effectively appeal-proof. “But noooo!” all the Apple and publisher partisans insisted. “It’ll get overturned because we want it to!

    We can see how well that’s worked out for them so far, can’t we?

    And Apple’s comment is just as good. “We know we did nothing wrong back in 2010,” they insist…which is pretty darned funny given that they’re about the only one whose opinion doesn’t count in the courtroom.

The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail