16-305-cv
Abbey House Media, Inc. v. Simon & Schuster, Inc. et al.




                                      In the
         United States Court of Appeals
                                      for the
                           Second Circuit
                                August Term, 2016

                            Argued: February 23, 2017
                             Decided: July 17, 2017

                               Docket No. 16-305-cv


             ABBEY HOUSE MEDIA, INC., DBA BooksOnBoard,

                                                       Plaintiff-Counter-
                                                       Defendant-Appellant,

                                          v.

SIMON & SCHUSTER, INC., PENGUIN GROUP (USA) LLC, the successor to
           the named Defendant The Penguin Group,

                                                       Defendants-Counter-
                                                       Claimants-Appellees,

  HACHETTE BOOK GROUP, INC., HARPERCOLLINS* PUBLISHERS, L.L.C.,
   VERLAGSGRUPPE GEORG VON HOLTZBRINCK GMBH, HOLTZBRINCK
 PUBLISHERS, L.L.C., DBA Macmillan, THE PENGUIN GROUP, a division
                         of Pearson PLC,

                                                       Defendants-Appellees,




* The Clerk is respectfully directed to amend the caption to reflect the styling

“HarperCollins,” which appears throughout the district court docket and on the
notice of appeal.




                                          1
16-305-cv
Abbey House Media, Inc. v. Simon & Schuster, Inc. et al.



                                   APPLE INC.,
                                                     Defendant.


Before:

       KEARSE, HALL, CHIN, Circuit Judges.

    Appeal from a judgment of the United States District Court for the
Southern District of New York (Cote, J.) granting summary judgment
in favor of the Appellees on the issues of antitrust injury and
causation. There is no material fact in dispute underlying the
conclusion that, as a matter of law, the Appellant suffered no antitrust
injury caused by the unlawful antitrust conspiracy. Based on the well-
reasoned decision of the district court, see Abbey House Media, Inc. v.
Apple Inc. et al., ___ F.Supp.3d ___, 2016 WL 297720 (S.D.N.Y. Jan. 22,
2016), which we hereby adopt, the judgment of the district court is
AFFIRMED.

                              MAXWELL M. BLECHER (Harold R. Collins,
                              Donald R. Pepperman, and Taylor C.
                              Wagniere, on the brief), Blecher Collins &
                              Pepperman, P.C., Los Angeles, California, for
                              Plaintiff-Counter-Defendant-Appellant.

                              GREGORY SILBERT (James W. Quinn and
                              Yehudah L. Buchweitz, on the brief), Weil,
                              Gotshal & Manges LLP, New York, New
                              York, for Defendant-Counter-Claimant-
                              Appellee Simon & Schuster, Inc.

                              Saul P. Morgenstern, Margaret A. Rogers,
                              and Alice C.C. Huling, Arnold & Porter Kaye
                              Scholer LLP, New York, New York, for
                              Defendant-Counter-Claimant-Appellee
                              Penguin Group (USA) LLC.

                              Linda H. Martin and Samuel J. Rubin,
                              Freshfields Bruckhaus Deringer US LLP,




                                         2
16-305-cv
Abbey House Media, Inc. v. Simon & Schuster, Inc. et al.



                              New York, New York, for Defendant-Appellee
                              Hachette Book Group, Inc.

                              C. Scott Lent, Arnold & Porter Kaye Scholer
                              LLP, New York, New York, for Defendant-
                              Appellee HarperCollins Publishers, L.L.C.

                              Joel M. Mitnick, John J. Lavelle, and Bianca
                              Cadena, Sidley Austin LLP, New York, New
                              York, for Defendants-Appellees Holtzbrinck
                              Publishers, LLC, DBA Macmillan and
                              Verlagsgruppe Georg Von Holtzbrinck
                              GMBH.

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 judgment 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



                                         3
16-305-cv
Abbey House Media, Inc. v. Simon & Schuster, Inc. et al.



Media, Inc. v. Apple Inc. et al., ___ F.Supp.3d ___, 2016 WL 297720
(S.D.N.Y. Jan. 22, 2016). Based on the undisputed facts in the record,
the district court determined that BooksOnBoard 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. at ___, 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 ___
F.Supp.3d ___, 2016 WL 297720.




                                         4
