Abbey House Media, Inc., DBA BooksOnBoard, Plaintiff-Counter-Defendant-Appellant,
Simon & Schuster, Inc., Penguin Group (USA) LLC, the successor to the named Defendant The Penguin Group, Defendants-Counter-Claimants-Appellees, Hachette Book Group, Inc., HarperCollins Apple Inc., Defendant.
Argued: February 23, 2017
from a judgment of the United States District Court for the
Southern District of New York (Cote, J.) granting
summary judgment in favor of the Appellees on the issues of
antitrust injury and causation. There is no material fact in
dispute underlying the conclusion that, as a matter of law,
the Appellant suffered no antitrust injury caused by the
unlawful antitrust conspiracy. Based on the well-reasoned
decision of the district court, see Abbey House Media,
Inc. v. Apple Inc. et al., ___ F.Supp.3d ___, 2016 WL
297720 (S.D.N.Y. Jan. 22, 2016), which we hereby adopt, the
judgment of the district court is Affirmed.
Maxwell M. Blecher (Harold R. Collins, Donald R. Pepperman,
and Taylor C. Wagniere, on the brief), Blecher Collins &
Pepperman, P.C., Los Angeles, California, for
Gregory Silbert (James W. Quinn and Yehudah L. Buchweitz, on
the brief), Weil, Gotshal & Manges LLP, New York, New
York, for Defendant-Counter-Claimant-Appellee Simon &
P. Morgenstern, Margaret A. Rogers, and Alice C.C. Huling,
Arnold & Porter Kaye Scholer LLP, New York, New York, for
Defendant-Counter-Claimant-Appellee Penguin Group (USA) LLC.
H. Martin and Samuel J. Rubin, Freshfields Bruckhaus Deringer
U.S. LLP, New York, New York, for Defendant-Appellee Hachette
Book Group, Inc.
Scott Lent, Arnold & Porter Kaye Scholer LLP, New York,
New York, for Defendant-Appellee HarperCollins Publishers,
M. Mitnick, John J. Lavelle, and Bianca Cadena, Sidley Austin
LLP, New York, New York, for Defendants-Appellees Holtzbrinck
Publishers, LLC, DBA Macmillan and Verlagsgruppe Georg Von
Before: Kearse, Hall, Chin, Circuit Judges.
House Media, Inc., doing business as BooksOnBoard, brought
this civil antitrust action for business injuries it alleges
arose from an unlawful conspiracy in restraint of trade
between Apple, Inc. and five major publishing companies, who
are the Defendants. We have ruled that the publisher
Defendants and Apple did indeed conspire unlawfully to
restrain trade in violation of the Sherman Act. See
United States et al. v. Apple, Inc. et al., 791 F.3d 290
(2d Cir. 2015). The unlawful conspiracy was effected by the
publishers simultaneously changing their business practices
to abandon the wholesale business model in favor of the
agency pricing model. Under the former wholesale business
model, the publishers would sell ebooks to retailers and
suggest a retail price, but retailers retained discretion to
sell at prices higher or lower than the publisher's
suggested price. Under the new agency pricing model the
publisher required the retailer to sell the ebook at a retail
price of the publisher's choosing, and the publisher paid
the retailer a commission for each sale.
was an independent ebook retailer that went out of business
after the switch to agency pricing, and it claimed that the
switch to agency pricing was the cause of its decline. The
district court (Cote, J.) granted summary judgment
in favor of the publisher Defendants, determining that the
record left no genuine issue of material fact as to antitrust
injury or causation. See Abbey House Media, Inc.
v. Apple Inc. et al., ___ F.Supp.3d ___, 2016 WL 297720
(S.D.N.Y. Jan. 22, 2016). Based on the undisputed facts in
the record, the district court determined that BooksOnBoard
faced strong competition from large retailers, that it
contemporaneously viewed the adoption of agency pricing as a
boon, and that its subsequent demise was not attributable to
the unlawful conspiracy. See id. at ___, 2016 WL
297720 at *12. This timely appeal followed.
review de novo the district court's grant of
summary judgment, construing the evidence in the light most
favorable to the non-moving party and drawing all reasonable
inferences in her favor." Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir.
2013). Summary judgment is appropriate when "there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
carefully reviewed the summary judgment record, and we agree
with the district court's determination that the record
permits no genuine dispute as to any material fact underlying
the conclusion that, as a matter of law, the Appellant