The biggest players in the $29 billion publishing industry have faced 11 antitrust cases that could reshape the industry, according to Docket Alarm analysis.
Publishing is dominated by the so-called “Big Five” – Penguin Random House, Simon & Schuster, Hachette, HarperCollins, and Macmillian Publishers. They were set to become the Big Four, until Penguin Random House’s proposed acquisition of Simon & Schuster fell apart over Thanksgiving week last year.
The five companies have been involved in a total of 60 cases across all case types in federal court from 2019 through 2022. Penguin Random has participated in 24 such lawsuits, as the defendant 77% of the time. More often than not, the other publishing houses are also the defendant.
The most prevalent case type among these suits is copyright. In one lawsuit, authors brought suit against publishers for allegedly infringing upon their work. Another suit saw the publishers teaming with authors to sue a company that they say engages in e-book piracy.
The other common case type is antitrust. E-commerce giant Amazon has been sued along with publishers in a sprawling case that alleges that Amazon “has coerced the Big Five” into signing contracts that foreclose further competition in the e-book marketplace. According to the most recent complaint, Amazon takes a 30 to 40% fee on e-books published by the Big Five.
The Law Firms
Penguin Random House, the publisher that faces the most litigation, is represented by a constellation of top law firms, chief among them Arnold & Porter, who defends them solely on antitrust matters. O’Melveny & Myers joined Arnold & Porter to represent Penguin in the case that eventually ended their bid to merge with Simon & Schuster.
Simon & Schuster faced the second-most cases. It, too, relies on a variety of law firms. Weil, Gotshal & Manges represents them the most frequently, with five antitrust cases, and Shearman & Sterling served as counsel for the Penguin merger case.
HarperCollins is also represented by Arnold & Porter in antitrust cases. Berman Fink Van Horn, Davis Wright Tremaine, and Kirkland & Ellis have also represented the publisher.
Hachette is represented in its antitrust cases by Freshfields Bruckhaus Deringer. Davis Wright Tremaine and Oppenheim + Zebrak also represent the company in federal court. Finally, Macmillian is represented by Cadwalader, Wickersham & Taft as well as Kirkland in its relatively few recent federal cases.