Opinion

Alison Frankel

Why isn’t DOJ seeking money damages in e-books price-fixing case?

By Alison Frankel
April 12, 2012

The newly-filed Justice Department complaint against Apple and five major publishers is an incalculable boon to Hagens Berman Sobol Shapiro and Cohen Milstein Sellers & Toll, the firms that won the intense competition to lead the multidistrict e-books antitrust class action. There hasn’t yet been discovery in the class action, which the defendants have moved to dismiss or send to arbitration, so the specific details in the Antitrust Division’s complaint, including emails and meetings between Apple and publishing executives, are powerful evidence of the conspiracy the class action alleges. The Justice Deparment’s same-day settlement with Hachette Books, Simon & Shuster, and Harper Collins also increases the likelihood that those publishers will also move to resolve the class action and improves the class’s case against Apple and the remaining publishers, Macmillan and Penguin.

There’s another gift to the private lawyers in the DOJ case as well: The Justice Department is not asking for any money damages of its own. Its complaint seeks only a decree that the defendants engaged in an unlawful price-fixing conspiracy, an injunction against such collusive conduct, and costs. The Antitrust Division — which filed its case in Manhattan federal court as a related proceeding to the multidistrict litigation — seems to be leaving money damages entirely in the hands of Hagens Berman and Cohen Milstein.

Steve Berman of Hagens Berman told me in an email that it’s not unusual for the Justice Department “to leave damages to private lawyers.” He also said there had been no discussions between class counsel and the DOJ on what sort of damages the Justice Department would seek. But his firm’s official statement makes clear that the private lawyers also noticed the distinction between what they want and what the Antitrust Division is after:

While Attorney General Holder’s actions, if successful, will put an end to the anticompetitive actions, our class action is designed to pry the ill-gotten profits from Apple and the publishers and return them to consumers…

Big money is at stake in the e-books litigation, which contends that Apple and the publishers used Apple’s entrance into the e-reader market to fix the prices of books at $12.99 or $14.99, rather than the $9.99 Amazon charged. The Consumer Federation of America said Tuesday in a letter to the chairman of a Senate Judiciary subcommittee that the difference will likely cost consumers more than $200 million in 2012. Sixteen state Attorneys General who announced suits paralleling the DOJ case reportedly reached a $52 million settlement with Hachette and Harper Collins on Wednesday.

So how often does the Antitrust Division leave money damages out of its cases? Obviously, when the Antitrust Division files a complaint to block a proposed merger, it seeks an injunction, not money damages. In criminal price-fixing cases, it demands big-money pleas (as in the largest-ever criminal antitrust fine, $548 million, that auto parts manufacturers agreed to pay in January). But Justice asks for money damages even in civil cases. The proposed antitrust settlement with Morgan Stanley that DOJ announced in March, for instance, includes $4.8 million in damages.

I’ve previously noted that the e-books class action is a rare instance of the private antitrust bar bringing claims in advance of regulators, rather than filing follow-on private claims. I’ve been told that the Justice Department was very interested in the allegations in the private litigation. Maybe the feds’ decision not to seek money damages was a bit of gratitude for the pioneering work of plaintiffs lawyers.

I emailed the Antitrust Division to ask, but didn’t get a response.

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