by Evan D. Brewer
In 2012 the Department of Justice brought suit against Apple and five major US publishing houses for conspiring to fix the price of e-books. The complaint contained many detailed factual allegations, including the sort of high-level executive collusion commonly seen in criminal price fixing cases. The charged conduct, horizontal price fixing, is per se illegal under the Sherman Act and among the “hardcore” violations that under Antitrust Division policy merit criminal charges. Yet instead the government brought a civil case against Apple and the publishers. This note analyses the details of the Antitrust Division’s case, viewed in light of current antitrust law, antitrust policy, and public perception of the players and the case, and suggests a number of possible explanations for the choice of a civil action.