In a letter filed with the court this week, lawyers for a potential consumer class alleging an e-book price-fixing conspiracy among Amazon and the Big Five publishers told the court they will oppose an expected bid to stay discovery in the case.
The letter comes after lawyers for Amazon and the publishers last week told magistrate judge Debra Freeman they will move to stay discovery, arguing that the case against them is without merit and likely to be dismissed.
But in a five-page reply filed this week, Steve Berman, lead counsel for the plaintiffs, insisted that a stay is not warranted and argued that since the court is not likely to decide the defendants’ motion to dismiss until January of 2022, “staying discovery until then creates ‘a risk of unfair prejudice’ caused by ‘fading memories with the passage of time.’”
“In short, Defendants’ proposed motion is without merit,” Berman told the court. “They merely challenge the adequacy of the allegations without identifying any case law that affirmatively forecloses Plaintiffs’ claims.”
In a Rule 26(f) filing this week, lawyers for the plaintiffs proposed what they called a “deferred” discovery plan that would see a “discrete set of critical discovery” begin soon, including the production of contracts, documents produced to governmental agencies that investigated the e-books industry, and e-book sales data.
But in a separate 8-page filing, attorneys for Amazon and the publishers told the court that starting discovery would be an undue burden pending resolution of their motion to dismiss, claimed “substantial grounds” for dismissal, and called the alleged conspiracy “implausible.”
While the plaintiffs oppose a stay of discovery in the case, Berman told the court they do not oppose a hearing to discuss the matter. At press time the court has not set a conference date.
First filed in January 2021 against Amazon and the Big Five publishers (Hachette, HarperCollins, Macmillan, Simon & Schuster, and Penguin Random House) the suit alleges that the publishers' use of various Most Favored Nations clauses in their contracts with Amazon is evidence of an agreement "to prevent competitive pricing."
