Epstein: Why Apple May Win Their eBook Pricing Suit
With the death of Steve Jobs, Apple has lost much of its Teflon insulation from government action. Nowhere has this been more true than with today’s suit against Apple and five major publishers for price-fixing in the eBook market. Any charge of collusion always carries with it a certain heft under the antitrust laws, because the fixing of prices among competitors amounts to a per se violation under the antitrust law, at least if those competitors have sufficient market power to alter over prices, which is surely the case when major parties sit down together at the table.
Yet this suit does not fall into the classical model where competitors agree on common prices in cartel like fashion. What is at stake here is the pricing models that will be used to determine prices. Right now under the so-called “wholesale” pricing model, the retailers of eBooks set the prices however low they choose. Clearly they cannot set these prices below the cost of production