Apple loses appeal on e-book price-fixing case, will pay $450 million
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| NEW YORK
Apple聽violated antitrust laws by colluding with publishers to raise electronic book prices when it entered a market in 2010 that had been dominated by Amazon.com, a divided federal appeals court panel said Tuesday.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan ruled 2-to-1 that a lower-court judge correctly found聽Apple聽Inc. violated the law to upset Amazon.com Inc.'s control of the market.
The appeals court also agreed that U.S. District Judge Denise Cote was right in 2013 to order injunctive relief to ensure the Cupertino, California-based company didn't commit additional violations of antitrust laws.
In a statement,聽Apple聽said the ruling did nothing to change the fact that it did not conspire to fix聽e-book聽pricing.
"We are disappointed the court does not recognize the innovation and choice the iBooks Store brought for consumers," it said. "While we want to put this behind us, the case is about principles and values. We know we did nothing wrong back in 2010 and are assessing next steps."
Cote had ordered the technology giant to modify contracts with publishers to prevent price fixing and appointed a monitor to review the company's antitrust policies. The appeals court last month upheld the appointment of the monitor.
In a majority opinion written by Judge Debra Ann Livingston, the 2nd Circuit said Cote's finding that聽Apple聽orchestrated a conspiracy among publishers to raise electronic book prices was "amply supported and well-reasoned" and that her remedy was "lawful and consistent with preventing future anticompetitive harms."
In a dissent, Judge Dennis Jacobs defended as "eminently reasonable" the actionsApple聽took as it fought to raise the price of e-books when Seattle-based Amazon controlled 90 percent of the market while selling the most popular books online for $9.99. Afterward, its share of the market dropped to about 60 percent.
He said it was a mistake by Cote and his fellow appeals judges to assume "competition should be genteel, lawyer-designed, and fair under sporting rules, and that antitrust law is offended by gloves-off competition."
"Apple聽took steps to compete with a monopolist and open the market to more entrants, generating only minor competitive restraints in the process," Jacobs wrote.
In the majority opinion, though, Livingston said it was "startling" that Jacobs would agree聽Apple聽intentionally organized a conspiracy among publishers to raise聽e-bookprices and then say the company was entitled to do so because the conspiracy helped it become an聽e-book聽retailer.
Joining the majority, Judge Raymond J. Lohier Jr. agreed with much of what Livingston wrote, though he noted that the publishers may be more culpable thanApple聽after using the company as "powerful leverage against Amazon and to keep each other in collusive check."
And he said there was "surface appeal" to聽Apple's聽argument that the聽e-book聽market needed more competition.
"But more corporate bullying is not an appropriate antidote to corporate bullying," he wrote.
The U.S. Justice Department and 33 states and territories originally sued聽Apple聽and five publishers. The publishers all settled and signed consent decrees prohibiting them from restricting聽e-book聽retailers' ability to set prices. Two publishers joinedApple's聽appeal.
In settlements with lawsuits brought by individual states,聽Apple聽has agreed to pay $400 million to be distributed to consumers and $50 million for attorney fees and payments to states, though it will pay nothing if it ultimately wins on appeal. Lawyers for the states say the $400 million combined with $166 million already turned over by publishers represent double the maximum amount consumers lost in the conspiracy.
In a release, Assistant Attorney General Bill Baer of the Justice Department's Antitrust Division said the government was gratified with the ruling.
"The decision confirms that it is unlawful for a company to knowingly participate in a price-fixing conspiracy, whatever its specific role in the conspiracy or reason for joining it. Because聽Apple聽and the defendant publishers sought to eliminate price competition in the sale of e-books, consumers were forced to pay higher prices for many聽e-book聽titles," he said.