Lawyers for Penguin yesterday filed a petition with U.S. Second Circuit Court of Appeals challenging district Judge Denise Cote’s June 27 decision denying Penguin’s motion to compel arbitration for Amazon and Barnes & Noble e-book customers in the consumer class action case derived from an alleged e-book price-fixing scheme. In a separate development, the federal government said it will file its motion seeking final judgment against the three settling publishers in its federal antitrust suit by August 3.
In its original motion, filed March 2, Penguin sought to stay the consumer class action case against them, arguing that Amazon and B&N e-book purchasers expressly agreed in their license agreements to “arbitrate any claims arising from their purchases of e-books.” Cote, however, denied the motion, finding that even though the agreements might be “otherwise enforceable,” it was invalid in this matter, because it would prevent e-book customers from “vindicating their rights under the Sherman Act.” Cote also found that class action was preferable in the case, because it would be “economically irrational” to force the vast number individual e-book purchasers to litigate claims of a pricing conspiracy individually in arbitration proceedings.
Meanwhile, the settlement involving three of the five alleged conspirators in the federal governments price-fixing case (Simon & Schuster, HarperCollins, and Hachette) is entering its next phase, following the DoJ’s filing its response to public comments on the proposed settlement. A DoJ spokesperon told PW they will file a motion asking the court to approve the proposed final judgment by August 3. It is unclear, however, how quickly the final settlement terms will go into effect. After the government files its motion, there will be more rounds of filings, including responses from the publishers, although deadlines and dates for those subsequent filings were unclear at this time.