Penguin Settles with the DOJ, Removing A Merger Hurdle and Answering A Merger Question

Publishers Lunch

On Wednesday afternoon, the Department of Justice announced it had reached a settlement with Penguin, "one of the largest book publishers in the United States," of the ebook pricing lawsuit that Penguin had previously vowed to litigate in court. (Indeed, in April, Penguin Group ceo John Makinson had defiantly underscored that "alone among the publishers party to the investigations that resulted in today’s announcements, we have held no settlement discussions with the DOJ or the states.") The settlement, which again requires the approval by Judge Denise Cote of New York's Southern District Court, imposes the same basics terms as the approved settlements between the DOJ and Harper, Hachette, and Simon & Schuster.

When Penguin and Random House announced their proposed merger at the end of October, it was widely presumed that Penguin would need to settle the ebook pricing lawsuits and investigations rather than litigate. The main question was a matter of when: Would they hold out as long as possible to use the settlements as a bargaining chip while seeking government approval in multiple jurisdictions of the merger, or would they settle quickly to clear the decks, leave Pearson with the not inconsiderable costs, and start the clock moving on the two-year timeframe under which settling publishers must live with Agency Lite rather than full agency.

Now we have that answer. In a statement, Penguin noted "it is also in everyone's interests that the proposed Penguin Random House company should begin life with a clean sheet of paper." At the same time they reiterate their belief Penguin "has done nothing wrong and has no case to answer." The publisher "continues to believe that the agency pricing model has encouraged competition among distributors of both ebooks and ebook readers and, in the company's view, continues to operate in the interest of consumers and authors." Random House declined to comment on the matter.

The other big question was how any settlement would affect the ebook business practices of the merged Penguin Random House if and once that deal is approved--and Wednesday's settlement has an answer there, too. As DOJ puts it in their announcement, "Should the proposed joint venture proceed to consummation, the terms of Penguin’s settlement will apply to it." The language in the settlement itself is a bit more abstract. It's the definitions section that indicates "Penguin" includes any successors and assigns, "expressly including Penguin Random House and any similar joint venture between Penguin and Random House Inc." Those successors have 30 days after closing a deal to meet the same obligations that the settlement imposes on Penguin. The implication is that if the merger is approved, Penguin Random House as a whole would have to follow the same operating conditions with respect to ebook sales terms that Penguin alone will follow once the settlement is approved. So you can see why the parties would want to get started--and finished--with the two-year period of Agency Lite as quickly as possible.

That inference is reinforced by another special provision. The settlement itself is subject to the same 60-day comment period that applied to the original settlement--but the two-year clock on the Agency Lite contractual terms can begin, if Penguin wishes (which they clearly do), as soon as they notify individual ebook retailers that they won't prohibit them from discounting. (Or more formally, "that Penguin will not enforce any term(s) in its agreement with the E-book Retailer that restrict, limit, or impede the E-book Retailer from setting, altering, or reducing the Retail Price of one or more E-books, or from offering price discounts or any other form of promotions to encourage consumers to Purchase one or more E-books.")
So it's reasonable to postulate those notices could go out as early as, say, December 25. Additionally, the settlement stipulates that in any event Penguin will notify retailers other than Apple of their right to terminate existing contracts by January 8, 2013 in any case. That means unlike the first settlement, this one will become operational well before it is formally approved by the court--so that Penguin can catch up to its peers on working their way through the two years of restricted agency, and saddle the proposed Penguin Random House with as short a period of Agency Lite as possible.
One other curious variant of the new settlement versus the one entered into by Harper, HBG and Simon & Schuster is a provision ensuring Penguin's "entering into and enforcing agreements relating to the distribution of another E-book Publisher’s E-books (not including the E-books of another Publisher Defendant) or to the co-publication with another E-book Publisher of specifically identified E-book titles or a particular author's E-books, or ... participating in output-enhancing industry standard-setting activities relating to E-book security or technology." Penguin is subject to similar restrictions about oversight of any joint ventures that the previous three Settlers already agreed to. As with the other three Settlers, the exact nature of Penguin's new pricing arrangements won't be known until they arrive at new contracts with retailers.
Presumably Penguin will follow the federal settlement with a settlement with the state attorneys general, which is expected to include a significant restitution payment, comparable to the payments agreed to by the original Settlers. (The original state settlement itself is still awaiting final judicial approval.) In the EU, Penguin spokesperson Rebecca Sinclair already tipped their hand last week in acknowledging that "as a practical matter, we are settling in the interests of clearing the decks before the new company is established." The EC itself had simply said they were "engaged in constructive discussions with Penguin on possible commitments."
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