Could another e-book price-fixing case against Apple soon head to trial? After a quiet period, summary judgment motions were filed last week in a case in which three defunct e-book retailers claim that the 2010 conspiracy among Apple and five publishers to fix e-book prices forced them out of business.
The suit, first filed by Australian upstart DNAML in September of 2013, and later joined by Lavoho, LLC, a "successor" to the Diesel eBook Store and Abbey House Media, formerly BooksOnBoard, alleges that the fledgling e-book businesses were 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). In the retailers's bid for summary judgment, filed last Friday, they argue that the facts of the case—already adjudicated by the court in Apple's case and affirmed on appeal—are sufficient for Judge Denise Cote to grant summary judgment to DNAML “on the element of liability.”
The retailers contend that the 2010 agency switch “devastated” their nascent business models, which were based on bundling and other discount-driven promotions.
At press time, Apple’s and the publishers' briefs supporting their motions for summary judgment were not yet public. Both the publishers and Apple have previously argued, however, the nascent retail businesses were hardly players in the e-book market, and could have folded for many reasons. The publishers portray DNAML as a “small, one person, Australian software company” with “no e-reader, no App, and nothing else to distinguish it from the already established competitors in the space, including Amazon and Barnes & Noble.”
Apple and the publishers had previously sought to have the case tossed, but in a 22-page opinion handed down in June, 2014, Cote held that the retailers could pursue the case. It is “more than plausible that a discount retailer was harmed by a conspiracy to remove retailers’ ability to discount e-books,” she found, adding that the retailers were "indisputably competitors in a market in which trade was restrained.”
But in allowing the case to proceed, Cote also threw cold water on the plaintiffs prospects for securing a payout, holding that proving damages related to the price-fixing conspiracy would be “difficult in the extreme" for the plaintiff retailers.
Last August, Cote ordered the parties into mediation, which did not yield a settlement or any stipulation in the case. Under a new schedule adopted by the court after a June conference, the Summary Judgment phase, including all replies, are now scheduled to be fully briefed by October 30.