In a major turn of events, attorneys for the plaintiff states and consumer class informed Judge Denise Cote on Monday that they have reached a settlement with Apple on monetary damages in the long running e-book case.
While the terms of the deal were filed under seal, plaintiff attorney Steve Berman told the court that the parties have “executed a binding agreement in principle” to resolve the damages phase of the litigation, with one major caveat: any final payment under the agreement will be contingent upon the outcome of Apple’s appeal of Judge Cote’s July 2013 verdict.
“As set forth in the memorandum of understanding, any payment to be made by Apple under the settlement agreement will be contingent on the outcome of that appeal,” Berman’s letter acknowledges.
Under a court order, the scheduled damages trial as well as legal notice to consumers have been canceled, and the parties are to file a motion for preliminary approval of the settlement on or before July 16, 2014. Apple’s other pending motions, as well as the class plaintiffs’ pending motion for Summary Judgment, are to be held in abeyance and, “upon the Court’s approval of the parties’ settlement in a final order, be deemed withdrawn.”
As PW has reported, the prospects of a damages trial actually happening had grown slimmer following a series of key rulings against Apple. After Judge Cote rejected Apple’s two expert witnesses for trial, in March, Plaintiff attorney Jeff Friedman told PW that Apple had "very few arrows left in its quiver.” Most recently, Apple lost its bid for an emergency stay from the Second Circuit Court of Appeals. The Plaintiff states had sought as much as $840 million in damages, with trebling. Though we don't know the final numbers yet, the settlement certainly takes that high number off the table.
Like the publisher settlements, once filed for approval the Apple agreement will likely be subject to a public comment period, and a public fairness hearing.
The deal comes as Judge Cote was due to deliver a ruling on a plaintiff motion for Summary Judgment in which she could have determined a damage award, or at least set a floor for damages for the scheduled trial. The plaintiffs had argued that no "triable issues of material fact" existed in the case, and that there was no "genuine dispute" that consumers were damaged by the price-fixing conspiracy, only by how much.