Apple’s counsel disagrees with the Department of Justice’s memorandum in support of a proposed settlement, which asked the New York district court handling the case to hand down a decision without any further hearings. The government decided to argue that a quick final judgment would be in the best interest of consumers as well as the involved parties, which would not have to pay for ongoing litigation as a result. The Cupertino California company writes that the proposed judgment would “terminate and rewrite Apple’s bargained-for contracts” before evidence, witness testimony and disputed facts are resolved at trial. Apple went as far as saying that the company can’t simply reinstate terminated contracts if it were to win a court trial in the future as the Court’s decision would be final and irreversible. Apple’s memo states the following:
Apple has not settled with the Government; it denies the allegations against it and is actively defending this case. Apple has never participated in, encouraged, or sought to benefit from collusion. It has no objection to the Proposed Judgment’s bar on collusion. But the Government proposes to go much further.[…]Nullifying a non-settling defendant’s negotiated contract rights by another’s settlement is fundamentally unfair, unlawful, and unprecedented. The Government does not cite a single case in which such relief was granted without a trial or merits determination.
It all boils down to what Apple says is the alleged conspiracy to force Amazon to adopt the agency model. To that end, "a settlement enjoining collusion or precluding publishers from forcing agency on Amazon would be appropriate." Here, the government seeks to reach a favorable judgment without a fair trial, and "justifies the termination of Apple’s contracts before trial on the grounds that they are causing ongoing harm." In one of Apple’s claims in the memo, the company takes aim at Amazon and the internet sales giant’s role in the proceedings:
For example, many expressed concerns about the possibility that the Government has unwittingly placed a thumb on the scales in favor of Amazon, the industry monopolist. Amazon was the driving force behind the Government’s investigation, and it told a story to the Government that has yet to be scrutinized. Amazon talked with the Government repeatedly throughout the investigation, even hosting a two-day meeting at its Seattle headquarters. In all, the Government met with at least fourteen Amazon employees—yet not once under oath. The Government required that Amazon turn over a mere 4,500 documents, a fraction of what was required of others.