DOJ Obtains Permanent Injunction in Penguin
Random House’s Merger with Simon & Schuster
A United States District Judge for the District of Columbia recently granted the Department of Justice (DOJ) a permanent injunction blocking the proposed merger of Penguin Random House (PRH) and Simon & Schuster (SS). SS’s parent company has since decided to allow the purchase agreement to expire. In its Complaint, DOJ alleged that the proposed merger would combine two of the “Big 5” publishers and substantially lessen competition in the “markets for content acquisition.” Unlike in prior cases with monopsony allegations, DOJ did not allege harm to competition for downstream consumers – for example, in the form of higher book prices. Rather, DOJ’s allegations focused on monopsony power and harm to authors.
DOJ has alleged monopsony concerns in prior merger cases, but these allegations typically have been part of broader complaints that also allege harm to consumers. For example, in United States vs. Anthem, DOJ alleged that the merger of Anthem and Cigna would allow the merged firm to lower reimbursements to healthcare providers (monopsony allegation) and would allow the merged firm to raise insurance fees to consumers. In its case against PRH and SS, DOJ focused on authors as labor and argued that the merger would result in increased monopsony power.
DOJ alleged that PRH and SS competed with each other to purchase publication rights to books and that this competition led to higher advances and royalties to authors. The DOJ alleged that the merger would lessen this competition to the detriment of authors, which would likely lead to a “reduction in the quantity and variety” of published books. DOJ further alleged that this monopsony harm would occur in two relevant product markets. The first market was for the acquisition of U.S. publishing rights to books and the second, more narrowly tailored market, was for the acquisition of publishing rights for anticipated best-sellers.
The parties, on the other hand, argued that they face increasing competition from smaller publishers for publication rights and that adding SS to PRH’s supply chain would yield cognizable pro-competitive benefits for both authors and readers. The District Court however precluded the parties’ efficiency arguments on the grounds that they “failed to verify the evidence.”
This case is thought to be the first enforcement action in which a monopsony theory of harm was alleged without a corresponding allegation of direct consumer harm through higher prices as well. The District Court’s affirmation of DOJ’s monopsony theory of harm is likely to embolden future monopsony enforcement actions by antitrust agencies. Future actions based on monopsony theories of harm are particularly likely to focus on labor markets, where DOJ has recently made a broader push in antitrust enforcement by bringing wage price-fixing and no-poach cases.