As expected, Apple’s damages trial will be postponed once again—that is, if there is a trial at all. The move comes after Apple lost its bid for an emergency stay from the Second Circuit Court of Appeals last week. Under the new proposed schedule, the trial would now begin August 25 (moved from July 14), although the parties acknowledge that some outstanding motions could impact that date—including the potential for Judge Denise Cote to decide the matter via summary judgment, or to issue a partial judgment in the case.
To that end, in separate letters, the parties asked Judge Cote to consider issuing her ruling on the plaintiffs’ motion for summary judgment before the parties submit their Joint Pretrial Order (proposed for August 1). The Joint Pretrial Order essentially details what is to be presented at trial, and obviously, a summary judgment decision could have a significant impact on what the parties file in their joint pretrial order.
The chances of a meaningful summary judgment decision increased greatly in late March, when Judge Cote disqualified two of Apple’s key expert witnesses, finding their analyses “fundamentally flawed,” and holding that they would only serve to confuse, or, in some cases, even mislead a jury. It is possible that Judge Cote could decide the damages question in a summary judgment, or at least issue a partial verdict that would focus the trial on damages above a certain floor.
In its filing for summary judgment, the plaintiffs argued that no "triable issues of material fact exist," and that there is no "genuine dispute" that consumers were damaged by the price-fixing conspiracy, only by how much.
The plaintiffs also indicated that they expect any damages trial would last one or two days, while Apple attorneys suggest the trial could take weeks.