In their September 17 filings, lawyers for Amazon and the Big Five publishers insist there is no evidence of any coordination or agreement among them to fix e-book prices or otherwise restrain competition. Perhaps more importantly, they argue, the alleged conspiracy—in which the five largest American trade publishers are alleged to have banded together to give Amazon monopoly power over e-books—fundamentally makes no sense.
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“If true, Plaintiffs’ conspiracy allegation would mean that the Publisher Defendants got together to create a monopolist retailer with whom they would then have to deal,” the Amazon brief states.
“Further reinforcing the implausibility of this theory, this would have happened while still under supervision from the Department of Justice (“DOJ”) after allegedly conspiring with Apple to reduce
Amazon’s eBook sales.”
In their brief, however, the publishers argue that rather than “supporting an inference of conspiracy,” the facts alleged in the complaint at best show only that the publishers, all facing "similar market forces," entered into separate contracts with “similar terms.”
“The allegations simply describe lawful conduct no more remarkable than individual pedestrians putting up their umbrellas in a rainstorm and cannot support an inference of conspiracy,” the publishers' brief states
. “They certainly do not support the facially implausible conspiracy Plaintiffs ask the Court to infer—that the Publisher Defendants conspired to insulate Amazon from competition, an objective entirely contrary to the Publisher Defendants’ economic interests, individually and collectively.”
Plaintiffs allege that the Publisher Defendants have conspired to do exactly what they have resisted for over a decade—‘immunize’ Amazon from competition and solidify Amazon’s market position.
The suit must be tossed, the publishers insist, because it offers no evidence and no “plausible allegations” that the publishers communicated or coordinated "their activities or contractual agreements” with each other.
“Plaintiffs allege that the Publisher Defendants have conspired to do exactly what they have resisted for over a decade—‘immunize’ Amazon from competition and solidify Amazon’s market position," the publisher brief explains, adding that the publishers' previous price-fixing actions in the Apple case is not evidence of any “motive, intent, or meeting of the minds” to conspire with Amazon.
“On the contrary, the purported motive of the Publisher Defendants’ alleged conspiracy with Apple was to counter Amazon’s growing power," the publisher brief states. “[The current suit] does nothing to explain this inconsistency, and it contains no facts indicating how the Publisher Defendants could conceivably benefit from helping Amazon gain market power."
“Before a court is willing to find that [Amazon and the publishers] agreed to a conspiracy that harms retail consumers,” Sagers told PW last January
, “the court will need to be persuaded that it makes sense for them to agree to such a thing.”