Abbey House Media, Inc. v. Simon & Schuster, Inc.

Per Curiam: Abbey 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. BooksOnBoard 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 judg *55 ment 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., 2016 WL 297720 (S.D.N.Y. Jan. 22, 2016). Based on the undisputed facts in the record, the district court determined that BooksOn-Board 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., 2016 WL 297720 at *12. This timely appeal followed. “We 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. 56(a). We have 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 suffered no antitrust injury caused by the unlawful antitrust conspiracy. We affirm for the reasons set forth in the district court’s thorough and well-reasoned written decision, which we hereby adopt. See, 2016 WL 297720.