Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Apple evades e-book solution provider’s price fixing claims, (Dec 16, 2015)

By Greg Hammond, J.D.

An e-book solution provider lacked standing to bring claims that Apple and various publishers conspired to fix prices and reduce competition in the electronic book industry. In granting summary judgment in favor of the defendants, the federal district court in New York City determined that the e-book solution provider was not the injured party and the right to pursue the antitrust claim was not assigned to the provider (DNAML Pty, Ltd. v. Apple, Inc., December 16, 2015, Cote, D.).

DNAML Pty, Ltd. is a business focused on providing solutions for the electronic publishing industry. Claiming that Apple and five publishers engaged in a conspiracy to fix prices and reduce competition in the e-book industry, DNAML filed suit. In particular, DNAML asserted that the publisher defendants adopted an agency model for the distribution of e-books, pursuant to their participation with Apple in the antitrust conspiracy. The defendants moved for summary judgment, alleging that DNAML lacked standing.

The court agreed that DNAML lacked standing, noting that DNAML was not the entity injured by the alleged violation of the antitrust laws in this case and did not receive an assignment of the right to pursue the antitrust claim from the injured party.

DNAML claimed that it purchased the “Business and Assets free of any Security Interest” of “Old DNAML” in December 2011. The court, however, concluded that the asset purchase agreement did not assign the antitrust claims from Old DNAML to New DNAML because it contained no express assignment of the antitrust claims and no general assignment of all claims. While the agreement transferred all of Old DNAML’s “Business and Assets” to New DNAML, the court noted that neither term was defined in the agreement to include the antitrust claims. Further, DNAML had specifically included transfer provisions of other legal claims in the agreement, which led the court to conclude that DNAML did not intend a general transfer of all legal claims.

The case is No. 13cv6516 (DLC).

Attorneys: Michael J. Guzman (Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC) for DNAML Pty, Ltd. Theodore J. Boutrous, Jr. (Gibson, Dunn & Crutcher, LLP) for Apple Inc. James W. Quinn (Weil Gotshal & Manges LLP) for Simon & Schuster, Inc. Saul P. Morgenstern (Kaye Scholer LLP) for Penguin Group USA Inc. Michael Lacovara (Freshfields Bruckhaus Deringer US LLP) for Hachette Book Group USA, Inc. Joel M. Mitnick (Sidley Austin LLP) for Macmillan Publishers Inc. and Verlagsgruppe Georg Von Holtzbrinck GmbH.

Companies: DNAML Pty, Ltd.; Apple Inc.; Simon & Schuster, Inc.; Penguin Group USA Inc.; Hachette Book Group USA, Inc.; Macmillan Publishers Inc.; Verlagsgruppe Georg Von Holtzbrinck GmbH

Cases: Antitrust NewYorkNews