Both U.S. attorneys and the states have now asked judge Denise Cote to deny Penguin’s request for a jury trial in its upcoming e-book price-fixing trial. In filings last week, attorneys argued that Penguin did in fact waive its right to a jury trial in earlier proceedings.
“Despite its apologies for any ‘confusion’ caused by its position and its reference to its waiver of its right to a jury on the States’ claims as a simple misunderstanding, Penguin seeks to rescind its waiver for strategic reasons,” the States’ brief reads. “But what the Penguin/DOJ settlement did not change was the nature of the States’ claims, such that Penguin would be entitled to revive its right to a jury trial after having waived it."
In a twist that could throw the current trial schedule into flux, Penguin filed a motion demanding a jury trial in the e-book price-fixing cases filed by the states and the consumer class action, led by Seattle-based firm Hagens Berman. The motion comes as a June 3 bench trial date bears down, and after Macmillan settled all claims, leaving Penguin as the only remaining publisher that has not settled with the states or the consumer class. Penguin settled the DoJ part of the case in December, 2012, a settlement which mandated only injunctive relief.
Indeed, as the States suggest, the request for a jury trial is certainly a strategic move. The state and consumer claims that remain against Penguin, which ask for money damages, “are not entitled to a bench trial.” And because Penguin is no longer a defendant in the DoJ action, at a separate jury trial, “the DOJ will not be putting on evidence or otherwise trying to prove that non-defendant Penguin is culpable...The evidence against Penguin will have to come, if it comes at all, from the States themselves.”
Cote has yet to rule on Penguin’s request.