Rachel Altemose
In early September, I received the e-mail every literary agent dreads. My author’s book imprint was combining with another, larger imprint—a delayed repercussion from a merger between two publishing houses back in 2021.[1] I cycled through the possible consequences, not only for my author (a change in editor halfway through the editorial process, cancellation of the book contract, etc.) but the industry at large: one less imprint where I could submit potential manuscripts, a significant layoff of employees, and fewer books in the marketplace. While distressed, I was far from surprised.
The publishing industry is intimately familiar with mergers and antitrust suits—the most recent of which was filed on September 12th in the Eastern District of New York against six academic journal publishers.[2] From allegations of e-book price fixing in United States v. Apple to concerns of a publishing “monopsony” in United States v. Bertelsmann SE & Co., the history of antitrust litigation is vast.[3] This new suit, a class action lead by scholar and scientist Dr. Lucina Uddin, is not contesting a merger, but collusion amongst major academic publishers.[4] The case is poised to garner similar attention as Bertelsmann, where the Department of Justice blocked the merger of powerhouse publishers Penguin Random House and Simon & Schuster.[5]
Although Bertelsmann and Uddin’s suits involve different statutory claims and markets, both bring attention to the publishing industry’s proclivity for anticompetitive practices.[6] However, it is debatable if Uddin will achieve the success secured in Bertelsmann, and, even if she does prevail, another question remains: will the case alter the fundamental structure of peer review, or, like Bertelsmann, will it struggle to eliminate the industry’s monopolistic tendencies?
Complaint:
Uddin brought the class action under Section 1 of the Sherman Act against Elsevier, Wolters Kluwer, John Wiley & Sons, Sage Publications, Taylor and Francis Group, and Springer Nature (“Publisher Defendants”).[7] The plaintiffs claim that the Publisher Defendants agreed to a “scheme” that denies payment to scholars for their peer review, limits competition by requiring scholars to submit their manuscripts to one journal at a time, and “prohibit[s]scholars from freely sharing their scientific advancements” while their manuscripts are under peer review.[8]
The complaint emphasizes the “‘publish or perish’ world of academia” and how the peer review system—though a longstanding practice—has been publicly challenged by over twenty-thousand scholars.[9] According to the plaintiffs, the alleged “scheme” has slowed the pace of scientific progress and allowed the Publisher Defendants to profit off scientists’ free labor, resulting in the unlawful appropriation of billions of dollars that would have otherwise funded scientific research.[10]
Merits:
John Wiley & Sons claims that the suit is meritless, though the defendant did not go into specifics.[11] While the complaint indicates that the Publisher Defendants have sustained considerable profit margins from their peer-reviewed journals process—$10 billion in revenue in 2023—it is unclear if this was the result of conspiracy amongst large commercial publishers.[12] Commentators have already introduced other possible explanations for the contested business practices, noting that some authors actually promulgate the current peer-review process.[13]
Even if the plaintiffs are victorious, there is skepticism that the case will implement transformative change within scientific academia. Dave Hansen, executive director of the Authors Alliance, is “not convinced that forcing the largest publishing companies to pay peer reviewers or compete for articles ‘is going to change much about what promotion and tenure committees think of those journals or those publishers.’”[14] Despite the Department of Justice’s success in Bertelsmann, it is hard to say that the decision sufficiently deterred mergers, as the industry’s rapid consolidation has hardly slowed.[15] Again, Uddin’s case differs significantly from Bertelsmann, so Bertelsmann might provide little guidance as to Uddin’s outcome. Regardless, I am hopeful these cases will lay the groundwork for larger conversations about the efficacy of antitrust law in the publishing industry.
[1] Publishing houses are composed of “imprints.” Each imprint develops a distinctive identity and publishes certain types of books, and in a merger between two publishing houses, imprints that publish similar genres (nonfiction, children’s books, literary fiction, etc.) are often consolidated.
[2] Class Action Complaint, Uddin v. Elsevier, B.V., No. 1:24-cv-6409 (E.D.N.Y Sept. 12, 2024).
[3]Book Publishing in the 21st Century: What’s Antitrust Got to Do with It?, Authors Alliance (Nov. 9, 2021), https://www.authorsalliance.org/2021/11/09/book-publishing-in-the-21st-century-whats-antitrust-got-to-do-with-it/ [https://perma.cc/S3ZQ-TJAA] [https://web.archive.org/web/20241204160738/https://www.authorsalliance.org/2021/11/09/book-publishing-in-the-21st-century-whats-antitrust-got-to-do-with-it/].
[4] Class Action Complaint at 1, Uddin, No. 1:24-cv-6409.
[5] United States v. Bertelsmann SE & Co., 646 F. Supp. 3d 1 (D.D.C. 2022).
[6] Bertelsmann claims arose under the Clayton Act and focused on the commercial or “trade” publishing market, while Uddin cites violations of the Sherman Act in the academic publishing market.
[7] The Publisher Defendants are the six largest for-profit publishers of peer-reviewed scholarly journals. Class Action Complaint, supra note 2.
[8] Id. at 1–2.
[9] Id. at 9.
[10] Id. at 1–4.
[11]See Kathryn Palmer, The Prestige Factor Propping Up Academic Publishers, Inside Higher Ed (Sept. 23, 2024), https://www.insidehighered.com/news/faculty-issues/research/2024/09/23/lawsuit-highlights-how-prestige-drives-academic-publishing [https://perma.cc/X5FJ-P8RW] [https://web.archive.org/web/20241204161224/https://www.insidehighered.com/news/faculty-issues/research/2024/09/23/lawsuit-highlights-how-prestige-drives-academic-publishing].
[12]See Garrett Shanley, ‘A Massive Scandal’: Does a Landmark Lawsuit Against Academic Publishers Have Legs?, Chronical of Higher Education (Sept. 19, 2024), https://www.chronicle.com/article/a-massive-scandal-does-a-landmark-lawsuit-against-academic-publishers-have-legs [https://perma.cc/CEQ2-7A6F]; Andrew Albanese, Academic Publishers Hit With Antitrust Suite Over Peer Review, Publishers Weekly (Sept. 18, 2024), https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/95968-academic-publishers-hit-with-antitrust-suit-over-peer-review.html [https://perma.cc/BB6D-X5Q4] [https://web.archive.org/web/20241204162121/https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/95968-academic-publishers-hit-with-antitrust-suit-over-peer-review.html].
[13]Antitrust Lawsuit Filed Against Large Academic Publishers, Authors Alliance (Sept. 17, 2024), https://www.authorsalliance.org/2024/09/17/antitrust-lawsuit-filed-against-large-academic-publishers/ [https://perma.cc/QX6R-XY74] [https://web.archive.org/web/20241204162357/https://www.authorsalliance.org/2024/09/17/antitrust-lawsuit-filed-against-large-academic-publishers/].
[14] See supra note 11.
[15]See Jim Milliot, Cashing Out and Scaling Up: Publishing M&A in 2024 (So Far), Publishers Weekly (Jul. 12, 2024), https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/95502-cashing-out-scaling-up.html [https://perma.cc/99SC-8K2B] [https://web.archive.org/web/20241204162644/https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/95502-cashing-out-scaling-up.html].