The man who would take U.S.A. v. Apple to the Supreme Court
The case will be handled from here on in by Theodore J. Boutrous Jr., the smiling man with a sheaf of papers and a helmet of silver hair facing the microphones in the attached photo.
The picture was taken in front of the U.S. Supreme Court after Boutrous and his mentor, former Solicitor General Ted Olson, put a nail in the coffin of California’s Proposition 8, the state’s unconstitutional ban on same-sex marriage.
If that case didn’t make Boutrous famous, this one will — at least in tech circles.
Not that he wasn’t already a star of the first magnitude in the universe that high-priced lawyers occupy. His bio at Gibson Dunn, where he is the resident appellate expert on protecting the media’s first-amendment rights and minimizing awards against giant corporations, begins like this:
He has argued more than sixty appeals, including before the Supreme Court of the United States, eight different federal circuit courts of appeals, eight different state supreme courts and a multitude of other appellate and trial courts. He has successfully persuaded courts to overturn some of the largest jury verdicts and class actions in history. In 2011, he successfully represented Walmart before the Supreme Court of the United States in the Dukes case, which unanimously reversed what had been the largest employment class action in history and established important standards governing class actions (Wal-Mart Stores, Inc. v. Dukes). In 2013, he successfully represented the prevailing party in obtaining a unanimous Supreme Court decision enforcing the Class Action Fairness Act (Standard Fire Insurance Co. v. Knowles). Also in 2013, Mr. Boutrous successfully represented plaintiffs in the Supreme Court in a case invalidating California’s prohibition on same-sex marriage, Proposition 8 (Hollingsworth v. Perry). In other ongoing constitutional litigation, Mr. Boutrous represents California schoolchildren asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website). (See attached list of representative cases.)
So what’s Ted Boutrous going to do for Apple?
His special expertise — the thread that runs through nearly all of his big-name cases — is attacking the legal underpinnings of a ruling that went badly against his client.
He should have a field day with this one.
During the three-week trial last June, Gibson Dunn’s antitrust lawyers, in consultation with Boutrous, teed up several juicy issues for appeal, among them:
- That the case turned antitrust law on its head; by rights it should have been about Amazon (AAPL), the monopolist selling e-books at a loss, not Apple, the new entrant trying to find a way to make a profit.
- That separate meet-and-greets with six different publishers doesn’t qualify as the initiation of a criminal conspiracy.
- That there’s a difference in anti-trust law between competitors forming a horizontal agreement to fix prices and a vertical player negotiating deals to enter a business.
- That writing a perfectly legal contract that creates a strong incentive for companies to change business models is not the same as forcing them to do so.
The law is not settled on any of these matters — and indeed, Denise Cote, a senior federal judge, rejected every one of Apple’s arguments — but helping higher courts find clarity in murky legal waters is what Boutrous does best.
“We look at where we think the law should be,” he told The American Lawyer in 2010, “even if it hasn’t arrived there yet.”