In yet another bid to fight a damage award, attorneys for Apple have asked Judge Denise Cote to certify her April 15 decision denying Apple’s motion to dismiss the class action case against them for an “interlocutory review” by the Second Circuit Court of Appeals.
In asking for certification, Apple attorneys argue that sending the matter to the Second Circuit would “save judicial resources by potentially avoiding the need for a costly trial” and would prevent “burdening the Second Circuit with duplicative appeals on related issues."
In a filing last Friday, the states opposed the motion, suggesting that Apple’s desire to delay the damages trial belies its “purported enthusiasm for judicial efficiency,” and argued that Apple fails to establish “the exceptional circumstances required for the Court to certify a question for interlocutory appeal.” Rather, Apple’s “sole concern,” the states claim, “is further delaying the jury’s determination of damages caused by Apple’s illegal conspiracy."
According to the states' brief, a district court can certify an issue for interlocutory appeal only when the order in question involves “a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal . . .may materially advance the ultimate termination of the litigation.”
In her April 15 decision, Cote sent a clear message that she intends to see Apple pay damages after determining the company is liable for its role in an alleged e-book price-fixing conspiracy. The states “have identified their own and their citizens’ concrete injury from Apple’s conspiracy with the publishers to raise e-book prices,” she wrote in the opinion, stressing that, counter to Apple’s defenses, the injury is "actual,” based "in fact," and not "conjectural."
Apple is due to reply to the states' opposition by May 6.