Antitrust fallout: retailers sue conspirators

[fjtorres]

US antitrust is primarily about consumer harm (hence the recent compensation awards) but it also offers (small) companies a venue for redress of anticompetitive behavior by other companies.
The bar is normally pretty high so there are few filings and even less successes but there is one big exception: when a company (or group) has already been found guilty of antitrust violations, the judge's findings of fact become indisputable "evidence" on which competitors claiming harm can base their claims of damages. The most recent example being the Microsoft antitrust case where the Judge ruled that MS had caused Netscape no harm but that their attempt to do so consituted an antitrust violation and thus he put them under antitrust monitoring for a decade. This was followed by dozens of private lawsuits from software companies seeking and often getting payouts, often for the results of their own bad decisions.
The bar is set high for anticompetitive antitrust cases but once it is lowered the claims multiply, which is why most targets of federal antitrust action settle with "no admision of guilt" to keep the evidence out of the public record.

In the price fix conspiracy case, the publishers settled to limit liability but since Apple refused to settle, the evidence and findings still ended up in the public record. Now comes word of the fallout: small independent ebookstores that have folded or died stillborn are suing Apple and the publishers for anticompetitive behavior, painting themselves as collateral damage of the conspirators' favoritism towards Apple.

Publishing Weekly has a (very slightly slanted) report on the lawsuits and the plaintiffs:

http://www.publishersweekly.com/pw/b...st-claims.html

In DNAML vs. Apple Inc. et al, filed in September, 2013, the upstart Australian e-book retailer alleges the company was harmed "directly and as a proximate result" of the 2010 price-fixing scheme executed by Apple and the five agency publishers (Hachette, HarperCollins, Simon & Schuster, Macmillan and Penguin). Now, this month, two related cases have been accepted by Cote: one filed by Lavoho, LLC, a "successor" to the Diesel eBook Store; and another from Abbey House Media, formerly BooksonBoard.

The most recent suits offer virtually identical claims to DNAML's 2013 suit—that the 2010 agency switch destroyed the retailers' ability to compete on price. All three plaintiffs share representation, and according to a letter filed by plaintiff attorneys after a January 2014 conference, the plaintiffs expect the cases to be consolidated.

The suits contain nearly identical preambles detailing Apple's liability finding by Judge Cote, and they press nearly identical claims: that the illegal collusion between Apple and the publishers ended the retailers' ability to bundle, discount, promote or otherwise engage in retail price competition, thus destroying each nascent e-book business. In each complaint, the plaintiffs were said to have business models "predicated on aggressive price competition."

PW takes a skeptical view of the suits because of the small size of the companies filing but anybody who remembers the aftermath of the Microsoft case knows that it is the smaller players that receive the most sympathetic treatment in court under antitrust enforcement. (Especially when the judge is annoyed.) And that once the small players win, the bigger ones pile on.

And in this case, if the small Adept-based ebookstores can make a case that gheh were harmed by the conspiracy to reduce competition in the BPH ebook market, then so can Adobe, Sony, and Google. And, because the Agency pricing of ebooks enabled Nook and Kindle to sell eink readers at or below cost, so can hardware-only reader vendors like Pocketbook, Bookeen, Aztak, etc. (Essentially anybody that signed up to sell generic Adept ebooks and hardware has at least a ghost of a chance.)

Once the rulings start piling up, the lawsuits start snowballing.
Just ask Microsoft; they ended up paying out billions.

Apple really should have settled.

[fjtorres]

Btw, folks around here can testify that BoB and Diesel did in fact offer meaningful price competition to Amazon, back in the 2008-9 days, right? Especially because of their willingness to deal with international customers.

I wonder if we might be called to testify.

[pwalker8]

Perhaps you mean, once lawyers start smelling money, lawsuits start rolling.

You greatly misunderstand my viewpoint. My skeptical view is strictly based on the points of law, not the size of the companies filing.

I will say that the pile on lawsuit might very well change the dynamic of companies settling rather than fighting. Companies settle lawsuits without admitting guilt basically to make the suit go away, for a number of reasons. If settling simply means that more claimants come out of the woodwork, then that changes the dynamic of simply settling. It will be interesting to see where this goes, not just with Apple, but with other companies with deep pockets.

BTW - you missed a rather important note in the article -
"All three plaintiffs are represented (at least in part) by attorney Max Blecher, who ironically represented three independent booksellers in a recent suit that claimed the "big six" publishers were in a conspiracy with Amazon. Judge Jed Rakoff dismissed that case in December, 2013, citing a lack of evidence and "no plausible motive.""

I don't think that ironically is quite the word to describe the fact that the same lawyer just got kicked out of court when he tried to sue Amazon. Serial lawsuits by lawyers looked for someone, anyone with deep pockets in a major problem in the US legal system right now.

[fjtorres]

Originally Posted by pwalker8

Perhaps you mean, once lawyers start smelling money, lawsuits start rolling.

That much is a given.
Ambulance chasers are always looking for a pocket to sue.

But when they find a case where the government has already done 90% of the job--proving the defendant has violated the law--they just drool like Dr Pavlov's dogs.

That is what happened to Microsoft; even companies that had faded out of sheer stupidity were able to collect 9-figure payoffs just by whining before a jury. And that is why the three best alternatives when faced with a federal antitrust lawsuit are: settle, settle, and for Adam Smith's sake, SETTLE!!!!

(As for the same ambulance chaser showing up again: look to the date of the first filing--sept 2013; that is when the joke lawsuit was all in the news. As the Madison ave guys say: There is no such thing as bad publicity. Sometimes a loser of a case will draw the attention of somebody with a winning case.

Remember, even ambulance chasers win often enough to keep chasing ambulances.

For a rational company, these kinds of nuisance suits need to be quashed before the publicity attracts too much attention. Don't want to start a feeding frenzy...

[frahse]

Originally Posted by fjtorres

US antitrust is primarily about consumer harm (hence the recent compensation awards) but it also offers (small) companies a venue for redress of anticompetitive behavior by other companies.
The bar is normally pretty high so there are few filings and even less successes but there is one big exception: when a company (or group) has already been found guilty of antitrust violations, the judge's findings of fact become indisputable "evidence" on which competitors claiming harm can base their claims of damages. The most recent example being the Microsoft antitrust case where the Judge ruled that MS had caused Netscape no harm but that their attempt to do so consituted an antitrust violation and thus he put them under antitrust monitoring for a decade. This was followed by dozens of private lawsuits from software companies seeking and often getting payouts, often for the results of their own bad decisions.
The bar is set high for anticompetitive antitrust cases but once it is lowered the claims multiply, which is why most targets of federal antitrust action settle with "no admision of guilt" to keep the evidence out of the public record.

In the price fix conspiracy case, the publishers settled to limit liability but since Apple refused to settle, the evidence and findings still ended up in the public record. Now comes word of the fallout: small independent ebookstores that have folded or died stillborn are suing Apple and the publishers for anticompetitive behavior, painting themselves as collateral damage of the conspirators' favoritism towards Apple.

Publishing Weekly has a (very slightly slanted) report on the lawsuits and the plaintiffs:

http://www.publishersweekly.com/pw/b...st-claims.html


PW takes a skeptical view of the suits because of the small size of the companies filing but anybody who remembers the aftermath of the Microsoft case knows that it is the smaller players that receive the most sympathetic treatment in court under antitrust enforcement. (Especially when the judge is annoyed.) And that once the small players win, the bigger ones pile on.

And in this case, if the small Adept-based ebookstores can make a case that gheh were harmed by the conspiracy to reduce competition in the BPH ebook market, then so can Adobe, Sony, and Google. And, because the Agency pricing of ebooks enabled Nook and Kindle to sell eink readers at or below cost, so can hardware-only reader vendors like Pocketbook, Bookeen, Aztak, etc. (Essentially anybody that signed up to sell generic Adept ebooks and hardware has at least a ghost of a chance.)

Once the rulings start piling up, the lawsuits start snowballing.
Just ask Microsoft; they ended up paying out billions.

Apple really should have settled.

It really warms my heart! Unbridled arrogance has its comeuppance!

[Fbone]

People with Sonys and other epub devices can't shop at Amazon, B&N or Apple. So where did the plaintiff's customers go? They may have bought new hardware when the prices dropped and shopped with their device's own store.

It's probable that Diesel, BoB, etc will earn more money from this lawsuit than they did from their businesses.

[frahse]

Originally Posted by Fbone

People with Sonys and other epub devices can't shop at Amazon, B&N or Apple. So where did the plaintiff's customers go? They may have bought new hardware when the prices dropped and shopped with their device's own store.

It's probable that Diesel, BoB, etc will earn more money from this lawsuit than they did from their businesses.

All well and good.

[pwalker8]

Or not. They have to show how they were specifically harmed. Their basic hope is that the case doesn't get tossed for lack of merit like the Amazon case was and that they can find a sympathetic jury.

[fjtorres]

Originally Posted by Fbone

People with Sonys and other epub devices can't shop at Amazon, B&N or Apple. So where did the plaintiff's customers go?
.

If they had generic Adept readers:
Kobo.
Google.
Sony, until recently.

If they were cellphone or PC readers they could have gone to Amazon or BN.

Back when I was reading on my BeBook, most people with generic readers counted on BoB, Fictionwise, Diesel, and Shortcovers more or less in that order, for BPH titles. Then the conspiracy kicked in.

[Fbone]

Originally Posted by fjtorres

If they had generic Adept readers:
Kobo.
Google.
Sony, until recently.

If they were cellphone or PC readers they could have gone to Amazon or BN.

Back when I was reading on my BeBook, most people with generic readers counted on BoB, Fictionwise, Diesel, and Shortcovers more or less in that order, for BPH titles. Then the conspiracy kicked in.

All the places you mentioned are now out of business or have negligible sales. Can we expect more lawsuits? I bet even B&N have lawyers looking into a suit.

[fjtorres]

Originally Posted by Fbone

All the places you mentioned are now out of business or have negligible sales. Can we expect more lawsuits? I bet even B&N have lawyers looking into a suit.

Well, yes. The entire interoperable epub ecosystem is negligible these days, thanks to the ripples from the conspiracy.

More lawsuits?
Depends on how these fare with the judge. But if Google wants to stick it to Apple they might give it a shot.

B&N, like Kobo, is on record as saying they like price fixing, so they likely won't be joining the party even though they probably have the best case.

[pwalker8]

And yet Amazon still is going strong at 70+ % of the market. Maybe some of these guys should sue them since they are so big. Oh wait, they did and got tossed out of court. Companies start up, struggle and go out of business all the time. It's the nature of business.

[jgaiser]

Originally Posted by pwalker8

And yet Amazon still is going strong at 70+ % of the market. Maybe some of these guys should sue them since they are so big. Oh wait, they did and got tossed out of court. Companies start up, struggle and go out of business all the time. It's the nature of business.

Well... Except Amazon wasn't convicted of antitrust. I know that doesn't mean much to you, but juries tend to look at those type of things when they make their judgments.

[fjtorres]

Originally Posted by jgaiser

Well... Except Amazon wasn't convicted of antitrust. I know that doesn't mean much to you, but juries tend to look at those type of things when they make their judgments.

Exactly.
One more time: antitrust isn't about market share per se but rather about harm to consumers, direct or (occasionally) indirect.

Amazon made a big public production of resisting the conspiracy so the fact that the conspiracy benefitted them doesn't factor in. They were not part of the illegal coordination but were instead presented with the finished product, the same as BoB and Diesel and the other non-Apple retailers, so legally they are innocent bystanders or even, heh, victims.

A big telling point in these secondary suits is that Apple had access to the conspirator ebooks since day one, whereas everybody else had their contracts terminated and they lost access to those books for weeks or months. Amazon, for example, lost access to new Penguin titles for two whole months so somebody looking to buy one of their titles was forced to go to Apple or do without. Since that was a result of an illegal action, it is likewise illegal. Amazon, instead of being sued, could easily sue. And win.

http://online.wsj.com/news/articles/...14492194024292

Penguin stopped providing digital editions of new titles to Amazon as of April 1 because Penguin and Amazon haven't yet struck an agreement on a new "agency" pricing model, in which publishers set the retail prices of their e-books. Out of the five major publishers that struck an agency-pricing deal with Apple Inc., Penguin is the only one that hasn't yet reached an agreement with Amazon.

Since Amazon can't sell the digital editions of Penguin's books, it is, in effect, showing its customers that Amazon is still the place to go for discount pricing.

BTW, retailers harmed by the conspiracy aren't the only ones who can make antitrust claims now; agents and authors can probably file a class action suit for loss of income due to the reduced ebook net the conspirators agreed to. For now this is unlikely, given the BPHs blacklisting habits, but if somebody filed, the suit would easily make it to trial.

Antitrust convictions are nasty.

[pwalker8]

Originally Posted by jgaiser

Well... Except Amazon wasn't convicted of antitrust. I know that doesn't mean much to you, but juries tend to look at those type of things when they make their judgments.

And neither were any of the publishing companies. They all settled with the Feds without admitting wrong doing. Sometimes it's easier to pay that to fight, guilty or no. One of the challenges for a case like this is the plaintiffs actually have to prove something that the feds never did, that there was a conspiracy and that those specific companies were damaged by it.