Thursday, June 21, 2012
Posted by D. Daniel Sokol
Steve Szentesi and Mark Katz (Davis Ward Phillips & Vineberg LLP) offer The eBook's Case: A Canadian Perspective.
ABSTRACT: Shortly after the U.S. Department of Justice ("DOJ") filed its claim in the eBooks case earlier this year, Canadian class action plaintiffs followed suit by commencing their own proceedings in the provinces of British Columbia, Ontario, and Quebec. As in the United States, the Canadian actions are challenging the agency eBook distribution model adopted by Apple and five of the world's largest book publishers. Specifically, the Canadian plaintiffs allege that Apple and the defendant publishers violated Canada's price-fixing offense under section 45 of the Competition Act (the "Act"). The publishers allegedly committed the offense by collectively agreeing to discontinue their former wholesale distribution models, under which publishers sold eBooks at wholesale prices to distributors who in turn set retail prices, for a new agency model under which publishers set prices with distributors receiving sales commissions.
The Canadian plaintiffs also allege that the publisher defendants illegally agreed not to set eBook prices below Apple's iBookstore prices (a "most-favored-nation" provision). Finally, the plaintiffs plead a variety of non-statutory grounds for recovery, including certain common law torts (e.g., unlawful interference with economic relations) and-in Québec-claims under the Civil Code of Québec. As in the United States, the key substantive issue in Canada will be whether the conduct of Apple and the defendant publishers constitutes an illegal conspiracy. In addition, the case raises some uniquely Canadian issues relating to jurisdiction and certification and the interpretation of Canada's conspiracy offense. Before addressing these various questions, we provide a brief summary of the competition class action regime in Canada for background purposes.