Legal Experts Suggest Justice Department Unlikely to Win Antitrust Suit Against Apple

In the wake of yesterday's announcement that the U.S. Department of Justice has filed an antitrust lawsuit against Apple and a number of book publishers over alleged price fixing, CNET notes that the government may have a hard time winning its case against Apple. The publishers may, however, find themselves on the losing end of the case should they be unwilling to settle.

"It's a harder case against Apple than the publishers," says Geoffrey Manne, who teaches antitrust law at the Lewis and Clark Law School in Oregon and runs the International Center for Law and Economics.

One reason lies in the Justice Department's 36-page complaint, which recounts how publishers met over breakfast in a London hotel and dinners at Manhattan's posh Picholine restaurant, which boasts a "Best of Award of Excellence" from Wine Spectator magazine. The key point is that Apple wasn't present.

But even the case against the publishers is not a sure thing for the Department of Justice. Some experts suggest that even amid claims that the publishers met to discuss a shift to an agency model being championed by Apple, the publishers may not be found guilty of antitrust violations.

Specifically, the Supreme Court has ruled in the past that pricing arrangements among competitors are not automatically considered to be violations of antitrust law, and that the setting of minimum retail pricing by manufacturers is a permitted policy.

ibooks ipad hand
Several of the publishers involved in the lawsuit have already settled, but Macmillan and Penguin are holding out along with Apple to fight the case. Almost immediately following the filing of the Department of Justice's lawsuit, a number of states filed their own claims against the companies, citing customer overcharges of over $100 million since the move to an agency model of pricing. Regulators in other countries are also reportedly looking at whether they wish to take action on the matter.

Top Rated Comments

diamond.g Avatar
157 months ago
So they weren't even present, and the publishers control the price? Umm.... why is Apple being sued again?

I thought it was due to the "Most Favored Nation" clause?
Score: 8 Votes (Like | Disagree)
LaWally Avatar
157 months ago
So they weren't even present, and the publishers control the price? Umm.... why is Apple being sued again?
Apple is being sued because it has agreements with the publishers who are accused of trying to use the agency model to allegedly price fix and is therefore considered complicit in the act. Apple is in effect "aiding and abetting" the alleged price fixing in the government's eyes by providing a vehicle through which the publishers can price fix.
Score: 7 Votes (Like | Disagree)
spiderman0616 Avatar
157 months ago
If Apple or the other publishers lose this battle, you are going to see Amazon being turned into the Walmart of e books. They can just undercut like crazy until everyone else shrivels and dies. It's suing one problem and protecting a whole other problem.

I personally like the agency model because it actually supports the industry. I'm not defending Apple's methods, because I still don't know if they're guilty of anything illegal or not, but I'm just saying that I'm not in favor of paying less for something if in turn it kills the company providing the content to me.
Score: 7 Votes (Like | Disagree)
IJ Reilly Avatar
157 months ago
The MFN clause itself is not a problem. The DOJ was alleging that Apple participated in a conspiracy to engage in price fixing. If they participated in a meeting where they and the publishers discussed a strategy to engage in price fixing, that could be a problem.

However, it would not be a problem if Apple simply individually negotiated terms with each publisher, even if the publishers told Apple what other deals they received, or if Apple told the publishers what other publishers were willing to accept. Unilateral action is OK, and revealing other deals is a legitimate attempt to gain leverage. That's the crux of Apple's defense in the separate class action lawsuit.

QFT. The CNET article is heavily spun, which is not surprising considering who wrote it. Legal analysts are going to be all over the map at this point, if only because they've seen only the government's complaint, not Apple's or the publisher's responses. But if you quote libertarian think tanks you are going to get predicable results.

Obviously it's the publishers who are at the pointiest end of the stick, but I don't think Apple needs to have been present at any meetings to be found a party to price fixing. It's going to be difficult to claim that all of these publishers came to the same terms with Apple by mere coincidence. The one quoted email from Jobs pretty much refutes that theory anyway.

All antitrust cases are difficult for the government to prosecute. Citing the DoJ's failures in recent history isn't telling close to the whole story, since most of these cases never make it to trial. They are overwhelming settled out of court by consent decrees, in which the government typically gets at least some of the changes they are seeking. Mr. McCullagh doesn't share that little factoid with us because it doesn't make the government look blithering.
Score: 6 Votes (Like | Disagree)
Amazing Iceman Avatar
157 months ago
Another waste of taxpayer dollars... :rolleyes:

Yep. The DOJ should be more concerned about regulating the price of gasoline and food, so we the consumers don't have to keep paying those outrageous prices. People can choose to buy or not to buy a book, but people have no other choice than to buy gas and food.

What happened to paying under $1 per gallon?
Score: 5 Votes (Like | Disagree)
Evan_11 Avatar
157 months ago
They essentially killed book stores buy undercutting them so there are few left, and did the same to ebooks with 90% of the market because they were selling below cost.

Amazon didn't kill the small book stores. Barnes & Noble and Borders did. Amazon then killed Barnes & Noble and Borders.
Score: 4 Votes (Like | Disagree)

Popular Stories

iOS 18 Siri Integrated Feature

iOS 18 Will Add These New Features to Your iPhone

Friday April 12, 2024 11:11 am PDT by
iOS 18 is expected to be the "biggest" update in the iPhone's history. Below, we recap rumored features and changes for the iPhone. iOS 18 is rumored to include new generative AI features for Siri and many apps, and Apple plans to add RCS support to the Messages app for an improved texting experience between iPhones and Android devices. The update is also expected to introduce a more...
iGBA Feature

Game Boy Emulator for iPhone Now Available in App Store Following Rule Change [Removed]

Sunday April 14, 2024 8:06 am PDT by
A week after Apple updated its App Review Guidelines to permit retro game console emulators, a Game Boy emulator for the iPhone called iGBA has appeared in the App Store worldwide. The emulator is already one of the top free apps on the App Store charts. It was not entirely clear if Apple would allow emulators to work with all and any games, but iGBA is able to load any Game Boy ROMs that...
top stories 13apr2024

Top Stories: M4 Mac Roadmap Leaked, New iPads in Second Week of May, and More

Saturday April 13, 2024 6:00 am PDT by
Apple's hardware roadmap was in the news this week, with things hopefully firming up for a launch of updated iPad Pro and iPad Air models next month while we look ahead to the other iPad models and a full lineup of M4-based Macs arriving starting later this year. We also heard some fresh rumors about iOS 18, due to be unveiled at WWDC in a couple of months, while we took a look at how things ...
new best buy blue

Best Buy Opens Up Sitewide Sale With Record Low Prices on M3 MacBook Air, iPad, and Much More

Saturday April 13, 2024 7:41 am PDT by
Best Buy this weekend has a big sale on Apple MacBooks and iPads, including new all-time low prices on the M3 MacBook Air, alongside the best prices we've ever seen on MacBook Pro, iPad, and more. Some of these deals require a My Best Buy Plus or My Best Buy Total membership, which start at $49.99/year. In addition to exclusive access to select discounts, you'll get free 2-day shipping, an...
iGBA Feature

Apple Removes Game Boy Emulator iGBA From App Store Due to Spam and Copyright Violations

Sunday April 14, 2024 9:22 pm PDT by
Apple today said it removed Game Boy emulator iGBA from the App Store for violating the company's App Review Guidelines related to spam (section 4.3) and copyright (section 5.2), but it did not provide any specific details. iGBA was a copycat version of developer Riley Testut's open-source GBA4iOS app. The emulator rose to the top of the App Store charts following its release this weekend,...
iOS 18 Siri Integrated Feature

Apple's First AI Features in iOS 18 Reportedly Won't Use Cloud Servers

Sunday April 14, 2024 9:52 am PDT by
Apple's first set of new AI features planned for iOS 18 will not rely on cloud servers at all, according to Bloomberg's Mark Gurman. "As the world awaits Apple's big AI unveiling on June 10, it looks like the initial wave of features will work entirely on device," said Gurman, in the Q&A section of his Power On newsletter today. "That means there's no cloud processing component to the...