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Antitrust and Unfair Competition Law E-Briefs, News and Notes: March 2025

by Sarah Van Culin

On December 4, 2024, the Ninth Circuit upheld the District Court’s denial of the American Booksellers Association’s motion to intervene in an antitrust suit brought against Amazon.com by the FTC and 19 states. The Ninth Circuit decided (without oral argument) that the American Booksellers Association’s claim involved different anticompetitive conduct in a different market and thus the ABA did not have a “significant protectable interest” in the litigation.

Background

On September 26, 2023, the FTC and 17 (now 19) state attorneys general sued Amazon.com alleging that Amazon used a series of anticompetitive and unfair strategies to maintain its monopoly power in two related markets: the online superstore market serving shoppers and the market for online marketplace services purchased by sellers.

On April 26, 2024, the American Booksellers Association filed a motion to intervene in the suit. The American Booksellers Association (“ABA”) argued that Amazon had stifled competition from its members by using its monopsony power to secure discriminatory wholesale pricing on books. Both sides opposed the motion to intervene, and the District Court denied the motion in a short order referencing the arguments made by both sides.

Ninth Circuit Opinion

In an unpublished opinion, the Ninth Circuit upheld the District Court’s denial. The Ninth Circuit distinguished between the conduct alleged by the FTC (that Amazon used its monopoly power to drive up prices paid by consumers) and that alleged by the ABA (that Amazon used its market power to secure lower wholesale prices in the market for books). As a result, the Ninth Circuit decided that intervention as of right was not warranted as the ABA would not be prejudiced by any resolution of the FTC’s action as the ABA could bring its own action against Amazon nor did the facts support permissive intervention.

Circuit Judge Bennett concurred in part and concurred in the judgment but wrote separately to address the majority’s position that the ABA alleged different anti-competitive conduct. Bennett read the FTC’s allegations to be that Amazon used its monopsonistic power on the supplier side to strengthen its monopoly power on the sales side, which would overlap with the conduct alleged by the ABA. Bennett encouraged the majority to consider Ohio v. American Express and related cases directing that conduct on both sides should be considered when dealing with an alleged platform monopolist. In a footnote, the majority rejected Bennett’s position, arguing that Bennett viewed the issues too generally and that for the purposes of intervention, the “interconnectedness” between the sales side and the purchasing side were insufficient to support intervention.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.