Will there be a damages trial for Apple in Judge Denise Cote’s Manhattan courtroom this spring? Maybe not: In the final round of briefs before the its scheduled May trial, attorneys for the plaintiff consumer class argue that there is sufficient evidence for Cote to assess damages against Apple via summary judgment, no trial necessary. However, if the court declines to issue a summary judgment, the trial should go on as planned in New York, the plaintiffs argue in a separate brief, rejecting Apple’s call for the judge to remand the state and consumer class actions to their original jurisdictions.
“Apple wants a do-over of almost every fact and argument decided against it in the liability trial,” plaintiff attorneys state in their final reply brief, submitted last week. But a summary judgment in which the court determines a damage award is merited, the plaintiffs argue, because Apple has failed to show that “triable issues of material fact exist” that would rebut the plaintiff’s “evidence of impact and damages.” The plaintiffs have put Apple's damages for fixing e-book prices between $697 and $840 million.
If it happens as planned, Apple’s damages trial would turn on collateral estoppel (the degree to which Apple’s liability as determined in its federal trial applies in the state and consumer actions) along with expert testimony. The trial would be expected to last one or two days. But with the expert reports filed, (pending resolution of "Daubert" motions challenging their admissibility), the plaintiffs argue that the court can effectively decide damages now.
In its filings, Apple has challenged the degree to which collateral estoppel applies, and is also challenging class certification, among its defenses. But neither issue should stop the court from issuing a full or partial summary judgment, the plaintiffs argue, calling it “unsurprisingly rare for a case featuring such overwhelming, preclusive evidence of consumer injury,” to actually make it to trial.
“When considered together," the brief states, "this Court’s factual findings and [Stanford economist Roger Noll’s] opinions are such that no reasonable jury could find Class Plaintiffs have failed to establish class-wide injury by a preponderance of the evidence.”
In sum, the plaintiffs argue that summary judgment is proper because there is no genuine dispute that consumers were damaged by the price-fixing conspiracy, only by how much. “Every expert who has opined on how much the conspiracy caused the Publisher Defendants’ e-book prices to increase has landed within a few percentage points of Dr. Noll’s 18.1% damages figure, including Apple’s own experts,” the plaintiff’s argue.
As to Apple’s argument that Judge Cote is biased, based on statements made at previous hearings, the plaintiffs call the argument “cursory,” lacking “authority,” and “worth little attention.”
In a separate brief, the plaintiffs also reject Apple’s bid to get the case out of Judge Cote’s hands, and back to their original jurisdictions. “In spite of the long, uniform course of conduct evidencing all parties’ consent to venue in this Court,” the brief states, “Apple now suggests that transfer of the Class cases is ‘mandated'… Apple is wrong.”
The plaintiffs argue that Apple has essentially consented to the joint action, and waived its chance to have the trial moved, either explicitly, or by raising their objections at too late a juncture, and that moving the action now would harm the plaintiffs.
“Forum objections can be waived when the parties acquiesce to venue in the transferee court, and the transferee court can enforce that waiver,” the brief states, “Indeed, the law requires that parties raise venue objections at an early time to prevent the waste of resources by the parties and the court. Finally, courts are particularly reluctant to allow parties to game the system by withdrawing consent to venue when the other side would be prejudiced by a late change of venue. Under all the relevant facts, the Court should find that Apple consented to venue for a joint, second-phase trial in this forum, and should not permit Apple to withdraw that consent.”