Judge Denise Cote said on Thursday that she expects the U.S. Department of Justice (DOJ) will be able to prove that Apple conspired with publishers in the run-up to the release of the iPad. The judge issued a “tentative view” to attorneys representing the DOJ and Apple to that effect, adding that the opinion is based on reading through some of the evidence.
Apple and five publishers were accused of conspiring when they entered into agreements to sell ebooks through agency pricing that allowed the publishers to set the retail price. The contract terms proposed by Apple then allowed those publishers to force Amazon to accept the same terms.
Amazon had until then been dumping ebooks below cost to promote its Kindle platform, grabbing more than 90 percent market share in the process. Though all five publishers have settled with the DOJ, Apple has fought the charges, arguing that the company didn't conspire and that it brought competition to an emerging market otherwise controlled by Amazon.
Judge Cote has consistently shown signs of doubting Apple's version of the story. In May of 2012, for instance, she denied Apple's request to have the case dismissed, ruling that Apple was at the heart of the case and helped the publishers collude.
On Thursday, Reuters reported that Judge Cote told attorneys that she had begun work on her opinion, though the case if far from over. When attorneys for the DOJ asked if she would give them a sneak peek at her thoughts, she said:
I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that.
Orin Snyder, a lawyer for Apple, said in a statement obtained by Reuters, “We strongly disagree with the court's preliminary statements about the case today. We look forward to presenting our evidence in open court and proving that Apple did not conspire to fix prices.”
Judge Cote is a well-respected judge and can't be accused of having an anti-Apple bias. Earlier this month in an unrelated case, she granted summary judgement in Apple's favor over a trademark infringement suit on the mark “IBOOK.”