The curious case of Apple ebook Judge Denise Cote

But the air of unreality that permeated her earlier decision in the case — in which Amazon (AMZN), a monopolist engaged in the predatory pricing of e-books, escaped untouched, and Apple, the new entrant in the market, was found liable for violating antitrust law — carried over into Friday’s hearing. (Transcript.)

One of the strangest moments came in a set speech Judge Cote gave just before she made her remedy proposals.

After describing Apple and the five so-called publisher defendants as playing “hard ball” in a “rough and tumble game … for high stakes,” she added this complaint:

None of the publisher defendants — and this is true for Apple, as well — have expressed any remorse over their actions, made any public statements admitting wrongdoing, undertaken any voluntary program to prevent a recurrence. They are, in a word, unrepentant.

She may have been playing to the press box — and indeed, the news that the judge had “scolded” Apple for being “unrepentant” showed up in dozens of headlines.

But the passage was also unintentionally revealing.

For as Harper Collins lawyer Shep Goldfein took pains to point out “with all due respect,” his company — like Apple — does in fact have an antitrust compliance department to prevent a recurrence. And as for admitting wrongdoing, Goldfein reminded the judge that “It’s routine in any settlement agreement, for a whole host of reasons, including some tax law reasons, that you don’t admit liability.”

Judge Cote knew — or should have known — about the antitrust compliance programs. And after 19 years on the federal bench, she must have known that having settled, none of the publishers were going to make public statements admitting wrongdoing.

If the attorneys for Apple and the publishers took objection to the tone of her remarks — which seemed more appropriate for a crusading prosecutor than a fair-minded judge — they would not be the first. Many of the 21 reviews she received in The Robing Room — a kind of Rate My Professors for judges — described her as hard-working and meticulous. But more than half complained that she was “biased” and pre-judged cases before she heard the evidence.

Here’s a sample of what lawyers who have appeared before her — writing anonymously for obvious reasons — have posted:

• Judge Cote has a bubbly style but it masks an inclination toward pre judging issues, including deciding early on who the good guy is and who the bad guy is and ruling accordingly.
• Judge Cote predetermines outcome of the case and consistently rules accordingly even in contradiction to her own orders.
• Her rulings are generally “sly” and calculated to ignore the pertinent issues raised, which is always allows the prosecution team to prevail.
• Judge Cote’s pre-disposition and bias are evident from the first moments she is encountered in the Courtroom.
• It seemed clear that she had pre-judged the case and the parties before hearing the merits, and proceeded to rule accordingly without regard for the facts and law.
• As several commenters have noted, this judge pre-determines which parties should win at the outset, and is blatantly enamored of big-name firms and gov’t entities. Engages in legal contortions to reach outcomes on behalf of her pet party, even to the extent of ignoring applicable black-letter law… God help us all if she is elevated to the Second Circuit.

For more, go to The Robing Room.

See also:

• The transcript of Friday’s hearing
• Judge Cote says before trial that Apple is likely to lose
• The view from the hard benches
• U.S. V. Apple could go to the Supreme Court