In separate motions this week, Amazon and the Big Five publishers asked a federal court to dismiss the latest iteration of a potential class-action price-fixing claim filed against them on behalf of indie booksellers.
According to court filings, the booksellers’ Amended Complaint, which was filed in July, accuses Amazon and the publishers of illegal price discrimination under the Robinson-Patman Act. But in their motions to dismiss, both Amazon and the publishers insist there is no illegal agreement to fix or otherwise restrain prices, and that the amended complaint is legally deficient and must be tossed.
“The Complaint recites that Amazon is a leading book retailer, takes issue with ordinary price competition, and tries to illogically and conclusorily claim that Publisher Defendants conspired with each other and with Amazon to confer a monopoly on Amazon, despite Publisher Defendants resisting Amazon’s growing position in the market for decades,” reads the publishers motion to dismiss. “This is simply not plausible. After realizing its originally pled Sherman Act conspiracy claims had no basis, Plaintiff tried to repackage them in its Complaint and bolster them with a price discrimination claim under the Robinson-Patman Act. The Complaint, however, is fatally deficient under either statute and must be dismissed."
In its motion to dismiss, Amazon lawyers also insist that there is no conspiracy with the publishers, no evidence of illegal collusion, and that its bargaining for lower print book prices is simply good business—and good for consumers.
“Bargaining between buyers and sellers is one of the most commonplace, precompetitive actions that can occur in any market,” the Amazon brief states. “As the Supreme Court has stressed repeatedly, it would do great damage to competition and consumers alike if the [Robinson-Patman Act] were misconstrued as having outlawed competitive bargaining.”
The suit was first filed in March, 2021, when Evanston, Ill.-based Indie bookseller Bookends & Beginnings teamed up with the law firm currently leading a sprawling class action price-fixing suit against Amazon and the Big Five publishers in the e-book market to file an antitrust lawsuit on behalf of a potential class of booksellers accusing Amazon and the Big Five publishers (Hachette, HarperCollins, Macmillan, Simon & Schuster, and Penguin Random House) of a conspiracy to restrain price competition in the retail and online print trade book market.
Similar to the claims made in the in ongoing e-book price-fixing case, the initial complaint turned on Amazon’s use of Most Favored Nation clauses in its contracts with the Big Five publishers, which, lawyers for Hagens Berman claim, have "the intent and effect of controlling wholesale prices of print trade books and preventing competition with Amazon in the retail sale of print trade books."
But in their motion to dismiss, Amazon lawyers note that the factual basis for much of the booksellers’ initial complaint—the use of MFN clauses—simply does not exist. And, Amazon lawyers insist, the price discrimination claims in the amended complaint are ill-conceived.
“The premise of Plaintiff’s Complaint was that [the use of MFN] clauses prevented other retailers from competing to ‘gain market share’ by negotiating better wholesale prices for themselves,” the Amazon motion notes. “Plaintiff withdrew its Complaint after Defendants demonstrated that there was no factual basis for Plaintiff’s core allegation: those agreements do not and never did contain any such MFN clauses. Rather than dismiss its claims, however, Plaintiff pivoted dramatically to allege effectively the opposite theory, that Amazon violated [The Robinson-Patman Act]…by negotiating for discounted wholesale prices and passing those savings along to consumers by charging ‘comparatively lower retail book prices’ to improve its market position…Plaintiffs new theory, in other words, attacks the very essence of robust and healthy competition that the antitrust laws overwhelmingly seek to promote. Plaintiff’s Amended Complaint is baseless and should be dismissed.”
Back in March, Bookends & Beginnings owner Nina Barrett told PW she agreed to join the suit because something needed to be done to blunt Amazon’s overwhelming market power.
"Every single independent bookseller goes out every single day and fights a heartfelt battle to sell books, on an unlevel playing field, against a ginormous competitor who has managed to accrue unfair advantages that we don't have, using tactics that are blatantly unfair," Barrett told PW.