On Friday, Judge Denise Cote reversed course and signed off on the Apple-DOJ plea bargain, thereby eliciting the single best explanation I've seen as to why the Appeals Court should overturn Cote's guilty verdict against Apple in the e-book anti-trust case.
"Antitrust experts in particular were outrage at the verdict as under that section of the law it should be impossible for a 'vertical' reseller (like Apple) to join a 'horizontal' conspiracy amongst publishers. Cote also ignored evidence that other booksellers had previously urged publishers to force Amazon to use the 'agency' model (where publishers set prices) before Apple even began planning its iBookstore business as Amazon's predatory pricing at the time was preventing competitors from joining the market."
Note the word "impossible." Analysts love words like "impossible" because they set up a binary choice that usually isn't hard to evaluate — something is either impossible or it's not.
Never mind the verdict's other problems which I've listed off and linked to before — anti-trust experts are asserting that, as a matter of black-letter law, a vertical reseller like Apple can't be part of a horizontal conspiracy like the one DOJ says existed among the publishing houses...legally, it's "impossible." That's no mere technicality. If that's true, here's the binary choice:
1. DOJ prosecutors and Judge Cote were incompetent and didn't understand the relevant case law; or
2. They did know the law and ignored it for reasons I won't speculate on here.
Incompetence or bias. If the anti-trust experts are right, there are no other possible conclusions.