Did Apple's lawyer just throw the e-book publishers under the bus?

June 20, 2013: 1:58 PM ET

Questioned repeatedly by the judge, does not dispute that they engaged in a conspiracy.

Evidence of conspiracy? Source: DOJ.

Evidence of conspiracy? Source: DOJ.

FORTUNE -- "I have no opinion."

That was Orin Snyder's first reply after U.S. District Judge Denise Cote questioned him early in his closing arguments in U.S.A. v. Apple, the antitrust case the Department of Justice filed against Apple (AAPL) and five publishers in April 2012.

We'll deal with what Apple's lead counsel said in his summation after we've heard the government's closing arguments, scheduled to be delivered after the lunch break. Suffice it say that the main points Snyder made will be no surprise to readers who have been following our coverage of the trial.

But we thought it was interesting that Judge Cote -- who presided over the settlements that removed the publishers from the case -- interrupted Snyder to ask, more than once and in several forms, whether Apple disputed that the five publishers had in fact conspired to raise the price of e-books.

"I literally have no idea," Snyder replied, the second time she asked it.

There was no evidence, he continued, that Apple knew of any such conspiracy. Apple's Eddy Cue, whom the government alleges was the ringleader of the plot, had never met the publishers before Dec. 15. Cue also testified that if he'd found out that they were talking amongst each other about his deal, he would have broken off negotiations. Given that they all made different demands -- and in two cases actually broke off talks -- they certainly didn't act like they were negotiating collectively.

Is Apple disputing that it knew or expected the publishers would raise the prices of e-books? Cote tried again.

"We don't concede any aspect of the government's burden of proof of conspiracy," Snyder replied. "Apple was not aware in December [2009] and January [2010]  of a conspiracy to raise prices."

Finally, one last time (from the transcript):

THE COURT: But at this trial, you did not contest and are not now contesting that during that period the publishers themselves were, in fact, by themselves engaged in a conspiracy to raise prices?
MR. SNYDER: Right. We have not endeavored to prove or disprove that. But what we have, I think, demonstrated clearly is that the government has not met its burden of proof that any preexisting conspiracy existed, that Apple joined or facilitated. That, obviously, is our position.
THE COURT: I understand you are disputing Apple's knowledge and intent with respect to a conspiracy. Does that summarize it?
THE COURT: Thank you.
MR. SNYDER: Thank you.
(Luncheon recess)

Court drawings: Illustrations by Elizabeth Williams

Current Issue
  • Give the gift of Fortune
  • Get the Fortune app
  • Subscribe
Powered by VIP.