Apple Says Differences in Publisher Deals Belie E-Book Conspiracy Charges

Central to the U.S. Department of Justice’s e-book price fixing case against Apple are the Most Favored Nation (MFN) agreements the company struck with publishers that ensured it would always be able to sell e-books at least as cheaply as rival retailers. The government contends that Apple’s MFN agreements were a crucial part of the company’s conspiracy to raise e-book prices and reap the benefits.

But in vetting that argument, it failed to answer a key question about those arrangements prior to trial. Specifically, were they the same for each publisher or were they different? If, as the DOJ argues, Apple was facilitating collusion among a cabal of publishers, you’d think that MFN agreement terms would be identical across the cabal with all participants guaranteed the same terms. But they weren’t. Turns out, Apple negotiated different MFNs with each publisher. And in court, Apple’s lead counsel, Orin Snyder, repeatedly pointed that out. While the core price-matching provision was present in each of the five publisher agreements, guaranteeing Apple the ability to compete at the lowest price, the MFNs themselves were materially different.