By Glenn Shewan and Penny Pasley
Regulators on both sides of the Atlantic have recently
investigated arrangements between Apple and a number of e-book
publishers. The crux of the case that the US Department of Justice
(DOJ) has alleged is anticompetitive
"horizontal" agreements between competing e-book
publishers, facilitated by Apple. However, the case also brings
into focus the important distinction in competition law of agency
and reseller agreements, and the treatment of "most favoured
nation" clauses (or "MFNs"). We
take a look at the background to this case and then consider these
two issues in more detail.
In April 2011, the DOJ filed a civil antitrust lawsuit against
HaperCollins, Hachette, Simon & Schuster, Macmillan, Penguin
(collectively the publishers) and Apple in the US
District Court for the Southern District of New York. It was
alleged the parties had conspired to end e-book retailers'
freedom to compete on the retail price of e-books by taking
