Argued: February 23, 2017
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 Lavoho, LLC v. Apple,
Inc., et al., ___ F.Supp.3d ___, 2016 WL 556636
(S.D.N.Y. Feb. 10, 2016), which we hereby adopt, the judgment
of the district court is Affirmed.
T. Ho (Collin R. White, on the brief), Kellogg, Hansen, Todd,
Figel & Frederick, P.L.L.C., Washington, D.C., for
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 &
M. Mitnick, John J. Lavelle, and Bianca Cadena, Sidley Austin
LLP, New York, New York, for
Defendant-Counter-Claimant-Appellee Holtzbrinck Publishers,
LLC, DBA Macmillan and Defendant-Appellee Verlagsgruppe Georg
Von Holtzbrinck GMBH.
H. Martin, Freshfields Bruckhaus Deringer U.S. LLP, New York,
New York, and Samuel J. Rubin, Goodwin Procter LLP, New York,
New York, for Defendant-Counter-Claimant-Appellee Hachette
Book Group, Inc.
Charles Scott Lent, Arnold & Porter Kaye Scholer LLP, New
York, New York, for Defendant-Counter-Claimant-Appellee
HarperCollins Publishers L.L.C.
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.
Before: Kearse, Hall, Chin, Circuit Judges.
LLC, successor in interest to Diesel eBooks LLC, 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.
eBooks was an independent ebook retailer whose revenues
dropped precipitously in the wake of 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 Lavoho, LLC v. Apple, Inc., et al.,
___ F.Supp.3d ___, 2016 WL 556636 (S.D.N.Y. Feb. 10, 2016).
Based on the undisputed facts in the record, the district
court determined that Diesel's business was not grounded
in price competition, that it contemporaneously viewed the
adoption of agency pricing as a boon, and that its decline
was not a legally cognizable antitrust injury flowing from
the unlawful nature of the conspiracy. See id. at
___, 2016 WL 556636 at *14. This timely appeal followed.
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.
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