The U.S. Department of Justice has sued to block Penguin Random House parent company Bertelsmann’s proposed acquisition of Viacom CBS subsidiary Simon & Schuster, arguing that it “would result in substantial harm to authors.” The lawsuit was filed in the United States District Court for the District of Columbia on November 2. With it, the DoJ alleges that the proposed acquisition would “enable Penguin Random House, which is already the largest book publisher in the world, to exert outsized influence over which books are published in the United States and how much authors are paid for their work.” (Penguin Random House is the world's third largest publisher, but its largest trade publisher.) The full lawsuit can be read here.

Notably, the DoJ focused its opposition to the deal around its impact on authors (and particularly on potential bestselling authors). “If consummated, this merger would likely result in substantial harm to authors of anticipated top-selling books and ultimately, consumers,” the DoJ complaint states. “Post-merger, the two largest publishers would collectively control more than two-thirds of this market, leaving hundreds of authors with fewer alternatives and less leverage.”

In a statement, U.S. attorney general Merrick Garland said that “books have shaped American public life throughout our nation’s history, and authors are the lifeblood of book publishing in America. But just five publishers control the U.S. publishing industry.” He continued: “If the world’s largest book publisher is permitted to acquire one of its biggest rivals, it will have unprecedented control over this important industry.” Acting assistant attorney general Richard A. Powers, of the Justice Department’s Antitrust Division, added that the lawsuit “will prevent further consolidation in an industry that has a history of collusion.”

While PRH global CEO Markus Dohle has pledged to allow PRH and S&S editors bid against one another post-acquisition, the DoJ specifically rejected that overture. “In short, after securing nearly half the market for publishing rights to anticipated top-selling books, Penguin Random House asks this court to trust that Penguin Random House will not use its market power to maximize profits for the benefit of its shareholders but rather, it will essentially compete with itself to reduce those profits,” the complaint states. “This proposal defies economic sense, can be evaded or violated without detection, and is unenforceable.”

The DoJ also took issue with PRH's previous statements that “the merger with Simon & Schuster will provide a counterweight to Amazon’s alleged buying power,” arguing that the publisher's “internal documents tell a different story: Penguin Random House plans to embrace Amazon even more closely after the merger. For example, in seeking approval from Bertelsmann’s Supervisory Board to pursue Simon & Schuster, Penguin Random House executives stated that the acquisition would advance their ‘[g]oal’ to be an ‘[e]xceptional partner for Amazon.’”

The reaction from both PRH and S&S has been swift. In a release announcing their intentions to fight the lawsuit, the two publishers called the proposed deal a “pro-consumer, pro-author, and pro-book seller transaction.” Furthermore, sources close to PRH said that the government cherry-picked the numbers used to oppose the deal, questioning how the government could define what an “anticipated top-selling book” even is.

In a memo to PRH employees, Dohle wrote that PRH believes “the DoJ is mistaken” in its assessment, adding that the publisher is “committed to vigorously defending this acquisition.” The memo argued that the proposed deal would "benefit all constituents, including authors, agents, retailers, and, ultimately, readers, and will do nothing to undermine the robust, competitive publishing landscape that currently exists." In a memo of his own, S&S president and CEO Jonathan Karp echoed Dohle's sentiments, noting that the DoJ “has not alleged that the acquisition would harm competition in the sale of books.”

Daniel Petrocelli, vice-chair of O’Melveny & Meyers and PRH’s lead trial attorney, said that the “DoJ’s lawsuit is wrong on the facts, the law, and public policy." The publishing industry "is strong and vibrant and has seen strong growth at all levels,” Petrocelli said. “We are confident that the robust and competitive landscape that exists will ensure a decision that the acquisition will promote, not harm, competition.” PRH anticipates that the case could go to trial sometime in 2022.

When the deal was first announced in late 2020, antitrust scholar Chris Sagers, Cleveland-Marshall College of Law professor and author of the 2019 book United States v. Apple: Competition in America told PW that there was “maybe a 50/50 chance" the deal would be challenged or conditioned by regulators. “As a practical matter, regulatory agencies during the past few decades have rarely brought serious challenges to deals less concentrating than four to three,” Sagers said. “That is, so long as a deal leaves at least four major firms in a market, the agencies are unlikely to sue.”

But size does matter, Sagers added. And even though the PRH/S&S deal would have left four major publishers at the top of the publishing business, Sagers warned then that the metrics used to calculate market concentration, known as the HHI (Herfindahl-Hirschman Index) could weigh against approval, with the combination of PRH and S&S essentially creating one firm significantly larger than its next closest rival—a situation NewsCorp CEO Robert Thomson, whose company was said to be the underbidder for S&S, called out when PRH’s massive winning bid was announced.

“There is clearly no market logic to a bid of that size—only anti-market logic,” Thomson said of PRH's winning bid, in a statement from November 25, 2020. “Bertelsmann is not just buying a book publisher, but buying market dominance as a book behemoth.”

In response to the news, Mary Rasenberger, the CEO of the Authors Guild, which has been critical of the proposed acquisition, called the decision "unexpected, given that so many other major mergers and acquisitions in the publishing industry have gone through recently and over the last few decades with nary a raised eyebrow from DOJ, leaving us with only a handful of companies dominating the industry."

The statement continued: "More importantly, the decision raises the bigger question that goes beyond traditional publishers to the consolidation of distribution channels and Amazon’s monopsony of book retail. We look forward to working with the Biden Administration on antitrust reform that gets to the root of the problems in the industry, whereas the proposed merger was just a symptom.”

When the acquisition was first proposed last year, the deal generated backlash from many in the book business. Concerns included that the combined company would be too large for even the remainder of the Big Five publishers (which would have then become the Big Four), let alone other publishers in the business, to compete when bidding for books. The lawsuit is seen by some both inside and outside of publishing as a sign of the Biden Administration's intent to act more vigorously in antitrust matters.

Penguin Random House, a subsidiary of Bertelsmann, publishes 2,000 new trade books in the U.S. annually and reported revenues of $2.5 billion from U.S. publishing in 2020. Simon & Schuster, a subsidiary of ViacomCBS, publishes 1,000 new trade books in the U.S. annually, and reported revenues of $901 million from U.S. publishing in 2020.