Does the Agency Pricing Lawsuit Have Merit?

Claiming that the "defendant publishers control 85-percent of the most popular fiction and non-fiction titles," Hagens Berman says that as a result of the alleged "pricing conspiracy," e-book prices have jumped "as much as 50 percent."

None of the lawyers Book Business Extra contacted felt they could comment on the case since it was just announced, and they were not yet familiar enough with the case's details. Extra also contacted several of the publishers in the suit. A Simon & Schuster representative stated that the company had no comment, and a spokesperson for Hachette Book Group (HBG) said that HBG had not been served with any complaint, so the company also currently has no comment. A representative of Macmillan commented, "Macmillan denies the allegations and intends to defend the case vigorously."

The suit cites "pricing conspiracy," and suggests that Apple and the five publishers are "in violation of federal and state antitrust laws, the Sherman Act, the Cartwright Act, and the Unfair Competition Act." The Sherman Antitrust Act was enacted by Congress in 1890 to "curb concentrations of power that interfere with trade and reduce economic competition," according to Encylopaedia Britannica. The Cartwright Act is California's antitrust law, which restricts conspiracies among two or more persons to restrain trade, and California's Unfair Competition Act-according to a summary of the law by the California State Legislature-authorizes public prosecutors and private plaintiffs to "to bring civil actions to enjoin acts of unfair competition or false advertising."

A question that may arise is: If Amazon is being "forced" to change its pricing by collusion between Apple and a group of publishers to fix prices, why isn't Amazon filing a suit? Is the publishers' e-book pricing simply a matter of free market trade?

"While publishers were likely to be 'concerned' at the law suit-'it's another force ranging against them, and another example where they look like they are against rather than for the consumer'-The Bookseller's deputy editor Philip Jones said there was 'no smoking gun' in the evidence," according to an article published Thursday morning on the Guardian.co.uk. "'There are lots of accusations of collusion and conspiracy, rather like a John Grisham novel, but I couldn't find a single instance where they had proof, or even hinted that they had proof,' he said."