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Originally Posted by Kali Yuga
More to the point, if the DoJ is saying there is nothing wrong with agency pricing, then restricting agency pricing doesn't seem to be the appropriate punishment for alleged collusion. Fines and industry supervision are much more appropriate, not barring companies from using legally acceptable pricing structures.
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As noted in the case, the Sherman Act states that the playing field should be returned to the state it was in before the conspiracy (my emphasis):
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The function of a decree in a Sherman Act case “includes undoing what the conspiracy achieved.” United States v. Paramount Pictures, 334 U.S. 131, 171 (1948). Here, defendants achieved higher retail e-book prices in large part by collectively agreeing to wrest control of pricing and other terms from retailers. As explained more fully in the Complaint and CIS, the anticompetitive results of the conspiracy ultimately were ensured by Publisher Defendants’ near simultaneous execution of the Apple Agency Agreements, which included common price schedules and MFN clauses, and which proscribed retail discounting. Accordingly, the proposed Final Judgment requires that Settling Defendants terminate the Apple Agency Agreements.
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As noted elsewhere in the document, the 2 year ban prevents the parties simply signing new contracts immediately on the Agency terms and thus restoring the benefits achieved by the collusion.
Graham