And now, on to the main event. Following the approval of the DoJ’s price-fixing settlement earlier this month, last week saw filings from Penguin and Apple. While the filings are mostly your typical pre-trial skirmishing over evidence, they make clear a key strategy for the non-settling publishers and Apple: putting Amazon on trial.
In one exchange, between Apple attorneys and the DoJ, Apple argued that it should have access to the DoJ’s conversations with Amazon employees. “Amazon is a central figure in both the government’s investigation and its theory of the case,” Apple attorneys argued. “Apple is entitled to test the truth of allegations pertaining to Amazon that lie at the heart of the DoJ’s case." DoJ attorneys countered that its conversations with Amazon were protected, and said that Apple was free to depose Amazon officials, but could not have its conversations. Cote agreed with the DoJ, and denied Apple’s motion.
Penguin, meanwhile, along with Amazon, petitioned the court to make Penguin’s “exhibit A” publicly available—a pricing chart showing that, according to Penguin, “contradict the serious misconception” that its e-book prices did not simply rise from $9.99 to $12.99 following introduction of the Agency model. “Penguin believes it is the public interest to make evidence like this public ,” Penguin attorneys argued.