The Second Circuit’s Apple E-Books Decision: Debating the Merits and the Meaning
On June 30, the Second Circuit affirmed DOJ’s trial victory over Apple in the Ebooks Case. The three-judge panel fractured in an interesting way: two judges affirmed the finding that Apple's role in a "hub and spokes" conspiracy was unlawful per se; one judge also would have found a rule-of-reason violation; and the dissent -- stating Apple had a "vertical" position and was challenging the leading seller's "monopoly" -- would have found no liability at all. What is the reasoning and precedent of the decision? Is "marketplace vigilantism" (the concurring judge’s phrase) ever justified? Our panel -- which includes the former DOJ head of litigation involved in the case -- will debate the issues.