In Re Amazon.com, Inc. eBook Antitrust Litigation

Background

The court had previously adopted a magistrate judge’s report and recommendation and dismissed all but certain of the plaintiffs’ antitrust claims against Amazon. In that earlier order, the court concluded that the remaining direct-purchaser plaintiffs had adequately pleaded antitrust injury and that they qualified as proper antitrust plaintiffs under the applicable “efficient enforcer” factors.

Amazon moved for reconsideration of that ruling. In the alternative, Amazon sought certification for an interlocutory appeal, meaning an appeal before the district court case was finished. Amazon also asked the court to stay, or pause, discovery while pursuing an appeal.

Amazon initially focused on the court’s discussion of whether the alleged injuries were “inextricably intertwined” with the alleged anticompetitive conduct. The court later clarified that this discussion was dicta—commentary that was not part of the basis for the ruling. Amazon then withdrew that challenge but continued to contest whether the plaintiffs had alleged antitrust injury despite not participating in the allegedly monopolized market. Amazon also sought an appeal concerning the Second Circuit’s “first-step” rule and the efficient-enforcer analysis.

Reconsideration

The court denied reconsideration. It explained that reconsideration is an extraordinary remedy generally available only when a party identifies an intervening change in controlling law, new evidence, or a clear error or manifest injustice. Amazon’s remaining argument repeated arguments it had already made and did not identify new facts, overlooked controlling law, or overlooked factual matters.

The court reaffirmed that the plaintiffs had adequately pleaded antitrust injury based on allegations that they paid higher retail prices for eBooks as a result of conduct in the electronic-platforms market for retail eBook distribution. The court concluded that Amazon was attempting to relitigate an issue it had already decided, which did not satisfy the standard for reconsideration.

Interlocutory appeal

The court also denied certification for an interlocutory appeal. Under 28 U.S.C. § 1292(b), certification requires a controlling question of law, substantial grounds for disagreement about that question, and a determination that an immediate appeal may materially advance the end of the litigation.

As to antitrust injury, the court found that Amazon had not shown substantial grounds for disagreement. Amazon identified decisions it characterized as conflicting authority, but the court said one had already been examined in the earlier analysis and the other involved different factual allegations and came from outside the Second Circuit. The court concluded that Amazon had shown only disagreement with how the court applied existing law.

As to the efficient-enforcer analysis and the first-step rule, the court likewise found no substantial grounds for disagreement. Amazon and the court agreed on the governing legal authorities but disagreed about how those rules applied to the facts alleged in this case. The court also rejected Amazon’s suggestion that it had held that the first-step rule was no longer valid or had failed to apply it. The court stated that it had adopted the earlier report’s analysis of that rule.

The court added that, even if the statutory requirements had been met, it would still have denied certification in its discretion. It said the issues depended on an intensive examination of the facts as pleaded and developed through discovery, and therefore did not justify departing from the general policy against piecemeal appeals.

Disposition

The court denied Amazon’s motion for reconsideration and its motion for leave to file an interlocutory appeal. It also denied Amazon’s request for a stay of discovery because the proposed interlocutory appeal no longer provided a basis for a stay. The clerk was directed to terminate the motion at docket entry 238.