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One aspect of this that hasn't been focused on (at least to my knowledge) and which strikes me as problematic for the Agency 5 is every retailer has exactly the same deal. This is significant because it demonstrates the lack of negotiation. Under normal market conditions, Amazon might be entitled to a larger fee than say Diesel Books because Amazon will be the conduit for the sale of more books than Diesel. So perhaps the Amazon-Agency 5 split should be 40:60 rather than 30:70 and maybe Diesel's split should be 20:80. The differences in split is similar to the wholesale discount that each vendor could negotiate.
The other question that requires resolution, I think, in the lawsuit is whether each title (book) constitutes a separate transaction that must be looked at individually. The lawsuit as filed assumes a single product category -- ebooks -- without differentiation among ebooks. Publishers can argue that each ebook must be evaluated on its own merit because each is unique, thus there can be no class action because there isn't a single class and on the individual ebook there could be no collusion because an entity cannot collude with itself.
It will be interesting to see how this plays out.
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