Justice Dept. Settles with Three Publishers, Continues Action Against Apple and Two Others

Before the companies began their conspiracy, retailers regularly sold eBook versions of new releases and bestsellers for, as described by one of the publisher’s CEO, the “wretched $9.99 price point.” As a result of the conspiracy, consumers are now typically forced to pay $12.99, $14.99, or more for the most sought-after eBooks, the department said.

The department alleges the conspiracy began in the summer of 2009. CEOs from the publishing companies met privately as a group about once per quarter. The meetings took place in private dining rooms of upscale Manhattan restaurants and were used to discuss confidential business and competitive matters, including Amazon’s eBook’s retailing practices.

The complaint states that the companies accomplished their conspiracy by agreeing to stop the longstanding practice of selling eBooks, as they long sold print books, on wholesale to bookstores, and leaving it to the bookstores to set the price at which they would sell the eBooks to consumers. Through their conspiracy, the companies imposed a new model under which the publishers seized eBook pricing authority from all of their retail bookstores and raised prices for eBooks.

As stated in the department’s complaint, one publisher’s CEO said, “Our goal is to force Amazon to return to acceptable sales prices through the establishment of agency contracts in the USA. . . . To succeed our colleagues must know that we entered the fray and follow us.”

The publishers also agreed with Apple to pay Apple a 30 percent commission for each eBook purchased through Apple’s iBookstore and promised, through a retail price-matching most favored nation (MFN) provision, that no other eBook retailer would sell an eBook title at a lower price than Apple.

As stated in the department’s complaint, Apple’s then-CEO Steve Jobs said, “the customer pays a little more, but that’s what you [publishers] want anyway.” Based on the commitments to Apple, the publishers imposed agency terms, over some objections, on all other eBook retailers. As a result, no eBook retailer is able to compete by using its commission to discount or reduce the price that the publishers set for their eBook titles or offer any special sales promotions to encourage consumers to purchase those eBooks. The department said that the intent and effect of the publishers’ contracts with Apple was to raise the prices that consumers nationwide pay for eBooks.

Under the proposed settlement agreement with Hachette, HarperCollins and Simon & Schuster, they will terminate their agreements with Apple and other eBooks retailers and will be prohibited for two years from entering into new agreements that constrain retailers’ ability to offer discounts or other promotions to consumers to encourage the sale of the publishers’ eBooks. The settlement does not prohibit Hachette, HarperCollins and Simon & Schuster from entering new agency agreements with eBook retailers, but those agreements cannot prohibit the retailer from reducing the price set by the publishers.

The proposed settlement agreement also will prohibit Hachette, HarperCollins and Simon & Schuster for five years from again conspiring with or sharing competitively sensitive information with their competitors. It will impose a strong antitrust compliance program on the three companies, which will include a requirement that each provide advance notification to the department of any eBook ventures they plan to undertake jointly with other publishers and that each regularly report to the department on any communications they have with other publishers. Also for five years, Hachette, HarperCollins and Simon & Schuster will be forbidden from agreeing to any kind of MFN that could undermine the effectiveness of the settlement agreement.

The ongoing litigation against Apple, Macmillan and Penguin seeks to restore price competition among eBook retailers in the sale of the litigating publishers’ eBooks. Under the existing agency agreements, Macmillan and Penguin prohibit eBook retailers from exercising any pricing discretion on their titles, and Apple is freed from any price competition with other retailers in selling those eBooks.

Hachette Book Group USA has its principal place of business in New York City. It publishes eBooks and print books through its publishers such as Little, Brown and Company and Grand Central Publishing.

HarperCollins Publishers, L.L.C. has its principal place of business in New York City. It publishes eBooks and print books through publishers such as Harper and William Morrow.

Macmillan has its principal place of business in New York City. It publishes eBooks and print books through publishers such as Farrar, Straus and Giroux, and St. Martin’s Press.
Verlagsgruppe Georg von Holtzbrinck GmbH owns Holtzbrinck Publishers LLC, which does business as Macmillan, and has its principal place of business in Stuttgart, Germany.

Penguin Group (USA) Inc. has its principal place of business in New York City. It publishes eBooks and print books through publishers such as The Viking press and Gotham Books. Penguin Group (USA) Inc. is the U.S. subsidiary of The Penguin Group, a division of Pearson plc, which has its principal place of business in London.

Simon & Schuster Inc. has its principal place of business in New York City. It publishes eBooks and print books through publishers such as Free Press and Touchstone.

Apple Inc. has its principal place of business in Cupertino, Calif. Among many other businesses, Apple distributes eBooks through its iBookstore.

The proposed settlement, along with the department’s competitive impact statement, will be published in the Federal Register, as required by the Antitrust Procedures and Penalties Act. Any person may submit written comments concerning the proposed settlement within 60-days of its publication to John R. Read, Chief, Litigation III Section, Antitrust Division, U.S. Department of Justice, 450 Fifth Street, NW, 4th Floor, Washington, DC 20530. At the conclusion of the 60-day comment period, the court may enter the final judgment upon a finding that it serves the public interest.

The court will determine a pretrial schedule for the case against Apple, Macmillan and Penguin once the companies file their responses to the government’s lawsuit.

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  • George Dick

    First, the only monopolies that exist over any substantial period of time have been sponsored by government, e.g. Ma Bell, cable TV, etc. So I dismiss prima facia there is any harmful monopolistic practices by any of the parties named in the suit. I also reject that "lower consumer prices" of eBooks, the goal of the DOJ, is necessarily a public good. Higher "producer" prices benefits publishers/authors/distributors. Under what part of our US Constitution gives government the power or right to interfere in the marketplace to aid consumers over producers?

    We have far more to fear from the unforeseen costs and consequences of government meddling than any temporary pricing advantage a private company may enjoy.

    That said, given that each publisher is free to set prices under the agency model, how can they prove collusion? In fact, it is Amazon’s model that is dictating prices by varying the commission they pay. And Apple is not the only seller of eBooks using the agency model, nor do they have a monopoly on the different devices which can read eBooks.

    I believe the ultimate effect of the pusillanimous capitulation of the big NY publishers to the government will be the emergence of publishers selling eBooks direct to consumers off their own website — i.e. Pottermore. I might add MyTabletBooks.com provides publishers a vehicle to begin selling direct immediately.