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.

Popular Stories

maxresdefault

Apple Shows Off a Key Reason to Upgrade to the iPhone 17

Saturday February 7, 2026 9:26 am PST by
Apple today shared an ad that shows how the upgraded Center Stage front camera on the latest iPhones improves the process of taking a group selfie. "Watch how the new front facing camera on iPhone 17 Pro takes group selfies that automatically expand and rotate as more people come into frame," says Apple. While the ad is focused on the iPhone 17 Pro and iPhone 17 Pro Max, the regular iPhone...
Finder Siri Feature

Why Apple's iOS 26.4 Siri Upgrade Will Be Bigger Than Originally Promised

Friday February 6, 2026 3:06 pm PST by
In the iOS 26.4 update that's coming this spring, Apple will introduce a new version of Siri that's going to overhaul how we interact with the personal assistant and what it's able to do. The iOS 26.4 version of Siri won't work like ChatGPT or Claude, but it will rely on large language models (LLMs) and has been updated from the ground up. Upgraded Architecture The next-generation...
wwdc sans text feature

Apple Rumored to Announce New Product on February 19

Thursday February 5, 2026 12:22 pm PST by
Apple plans to announce the iPhone 17e on Thursday, February 19, according to Macwelt, the German equivalent of Macworld. The report, citing industry sources, is available in English on Macworld. Apple announced the iPhone 16e on Wednesday, February 19 last year, so the iPhone 17e would be unveiled exactly one year later if this rumor is accurate. It is quite uncommon for Apple to unveil...
apple wallet drivers license feature iPhone 15 pro

Apple Says These 7 U.S. States Plan to Offer iPhone Driver's Licenses

Monday February 9, 2026 6:24 am PST by
In select U.S. states, residents can add their driver's license or state ID to the Apple Wallet app on the iPhone and Apple Watch, and then use it to display proof of identity or age at select airports and businesses, and in select apps. The feature is currently available in 13 U.S. states and Puerto Rico, and it is expected to launch in at least seven more in the future. To set up the...
14 inch MacBook Pro Keyboard

New MacBook Pros Could Now Arrive in March

Sunday February 8, 2026 6:02 am PST by
New MacBook Pro models with the M5 Pro and M5 Max chips could arrive as soon as Monday, March 2, according to Bloomberg's Mark Gurman. In today's "Power On" newsletter, Gurman said that the release of new MacBook Pro models is tied to the release of macOS Tahoe 26.3. The launch is said to be slated for as early as the week of March 2. He added that the M4 Pro and M4 Max models on sale today...

Top Rated Comments

diamond.g Avatar
181 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
181 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
181 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
181 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
181 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
181 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)