Plaintiffs in class-action agency pricing lawsuit contend direct proof not necessary to prove conspiracy

Does proving a conspiracy require hard evidence? PaidContent reports that plaintiffs who have filed suit against Apple and the major publishers who implemented agency pricing say in their latest filing that indirect evidence of price jumps and other “plus factors” are all that is necessary, according to a 1939 Supreme Court precedent pertaining to movie studios who fixed film prices.

The filing points out a number of events such as several separate deals finalized over just a few days, a trade association meeting when executives from Hachette and Macmillan were seen together in a bar, and the way that the publishers’ contracts with the publisher include very similar terms.

Though Apple claimed it had no pricing power in a marketplace 90% dominated by Amazon, the plaintiffs pointed out that agency pricing represented a way for Apple to “knock out a reason to buy a Kindle vs. an iPad—the price of books,” and that it also increased the amount of money Apple would have earned from e-books.

Further, the plaintiffs note, the publishers didn’t change their pricing for the launch of Barnes & Noble’s Nook—so apparently only Apple was big enough to warrant a conspiracy.

It will be interesting to see how this case moves forward. With the Justice Department moving toward a settlement in its own anti-trust investigation, this could be the only way for the opponents of agency pricing to get their day in court. However, PaidContent suggests that the Justice Department settlement could pave the way for a civil settlement under which claimants would get a small monetary amount (and lawyers would pocket 25% of the total).

Personally, I’d prefer to see e-book prices come down rather than receive some publisher pocket change. But we’ll just have to see how it goes.