In a reply brief filed on January 15, Apple attorneys fired back at the Department of Justice, and pressed their argument for the Supreme Court to review the company's e-book price-fixing case.
In the 12-page brief, Apple’s attorneys reiterate their central claim that the lower courts erred in finding Apple per se liable, arguing that the company's vertical relationship to the publishers in the case requires that its conduct be considered under the more expansive “rule of reason” framework, which, Apple contends, would exonerate their conduct.
"Apple’s conduct was undisputedly directed to a legitimate, pro-competitive objective—new entry—and its agreements involved setting the terms of trade between Apple and the publishers, and no one else," Apple attorneys stress. Seven amicus briefs filed in December support Apple's position.
In their opposition brief, filed December 23, DoJ attorneys urged the Supreme Court to reject Apple’s appeal, which they say is based on a “sanitized version” of the facts. DoJ attorneys argue that the law is clear: "when a horizontal conspiracy is subject to per se condemnation, a vertically-related firm that joins the conspiracy is liable to the same extent as its co-conspirators.”
The verdict against Apple, DoJ attorneys argue, "rests on the unexceptionable proposition that [Apple] was not entitled to accomplish its entry into a market by organizing a horizontal price-fixing conspiracy among that market’s suppliers."
“The Solicitor General and the States try to reframe Apple’s petition as a dispute about factual findings. It is not," Apple attorneys counter, insisting that the lower courts’ “erroneous expansion of the per se rule" is a "legal error" that, if left to stand, would leave would-be market entrants "to guess whether and when novel, vertical conduct could make them a per se liable participant in a horizontal conspiracy.”
With Apple's reply, the case is likely now fully briefed (at press time it was unclear if the DoJ will file a final reply; the DoJ declined to comment). In any event, Apple's petition will soon be headed to the Supreme Court cert. pool, with a decision on whether or not to accept the case expected this spring.
Update: According to a docket update, Apple's case will be considered at the court's Feb. 19 conference.