Apple lost its appeal in its e-book antitrust litigation with the government. My take: If Apple seeks review by the Supreme Court, and the high court takes the case, Apple is sure to win.
The decision was split three ways and the only ruling today was that Apple's conduct was a "per se" violation of the antitrust laws. Because the concurring opinion stood with the majority opinion only on the "per se" issue, there was no majority ruling that Apple's conduct did not pass muster under the "rule of reason."
The Supreme Court has already cut back on the "per se" doctrine and may well entertain another opportunity to clarify that it does not apply in cases like this, where evidence of pro-competitive effects has been shown. This was the position of the dissenting opinion by the Chief Judge of the Second Circuit, a position consistent with the amicus brief I filed in the lower court and the brief I filed for the appeal.
I hope Apple appeals and that the Supremes take the opportunity to clarify that even horizontal conduct can be shown to be pro-competitive under the rule of reason, as it clearly has in this case.
Honored with Quotation of the Day by The New York Times
April 22, 2015
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