Apple filed a brief last week opposing class certification for private consumers suing the company over alleged harms in e-book pricing during the time agency contracts were in effect. Judge Cote found last July that Apple conspired with publishers to set fixed prices in the e-book market via agency agreements and most-favored-nation clauses in industry-wide distribution contracts. Apple continues to argue that its entry into the market benefitted consumers as an alternative to Amazon. I’m not sure about this myself. The net result was that consumers were going to pay the same price no matter which retailer consummated the sale. The Court found that consumers were harmed despite Apple’s statements to the contrary.
Apple defends against certification based on the Wal-Mart Stores, Inc. v. Dukes case from 2011. That case found that alleged injuries to members of the class were too disparate to support certification. I’m not sure that this case applies here. Consumers either bought an e-book at a set price or they didn’t.
Apple also opposes state lawsuits on jurisdictional grounds. Apple argues states do not possess Article III standing because they have no direct injury despite language in the Clayton Act that supports parens partriae suits. Apple further argues that the states need to meet the class action certification standards in Federal Rule 23 if the Court allows the suits to go forward. Most commentators suggest this is a losing position on Apple’s part. The brief does seem to be aimed at the Second Circuit Court of Appeals just as much as the District Court.