What Kindle Buyers Need to Know

• More than 30 million Amazon e-book customers could be included in one of the largest consumer antitrust classes in the country if a federal judge adopts a magistrate judge’s recommendation.
• Plaintiffs’ expert estimates Amazon customers paid more than $740 million in alleged e-book overcharges — an estimate Amazon disputes.
• Certification would not mean Amazon lost the case, but it would allow millions of purchases to be litigated together and substantially raise the financial stakes.

By Samuel López | USA Herald

Amazon is moving closer to having to defend its e-book pricing practices against a nationwide class potentially exceeding 30 million customers after a federal magistrate judge recommended certification of the enormous consumer antitrust case.

The recommendation in In re Amazon.com, Inc. eBook Antitrust Litigation, Case No. 1:21-cv-00351, was initially filed under seal on August 10 in the Southern District of New York and became publicly available after litigation over what portions of the record could remain sealed. Magistrate Judge Gabriel W. Gorenstein recommended granting the consumers’ class-certification motion. U.S. District Judge Gregory H. Woods still must decide whether to adopt that recommendation.

Amazon has not been found liable, and no damages have been awarded.

The proposed class generally covers consumers who purchased at least one qualifying trade e-book through Amazon under the agency model beginning January 14, 2017, through the eventual certification date, at prices ranging from $4 to $49.99. The books were published by the five major publishers; Hachette, HarperCollins, Macmillan, Penguin Random House and Simon & Schuster.

The lawsuit has changed considerably since it was filed in 2021. In March 2024, Judge Woods dismissed the publishers from the case along with the plaintiffs’ Sherman Act conspiracy and restraint-of-trade claims. What survived were monopolization and attempted-monopolization claims against Amazon brought by consumers who purchased e-books directly from the company.

At the center of the current certification fight is an economic model prepared by plaintiffs’ expert Dr. Jamie McClave. Her analysis reportedly examined approximately 658 million Amazon e-book transactions spanning nearly a decade and concluded that customers paid more than $740 million above what they would have paid in a competitive market. Another plaintiffs’ expert estimated Amazon held roughly 69% to 74% of the relevant e-book market during the class period.

Those numbers are allegations supported by plaintiffs’ expert modeling, not judicial findings that Amazon actually overcharged customers.

Amazon is fighting certification. The company has argued, among other things, that the proposed class sweeps in consumers who actually benefited from the challenged conduct and that individual differences make class-wide treatment improper.

But Gorenstein found the plaintiffs’ damages methodology sufficiently tied to their theory of antitrust harm to satisfy the common-issues requirement necessary for class treatment.

There is another number worth watching.

If plaintiffs eventually proved an antitrust violation and successfully established $740 million in recoverable damages, federal antitrust law generally provides successful private plaintiffs three times their proven damages, plus costs and reasonable attorneys’ fees. On paper, trebling $740 million produces potential damages of roughly $2.22 billion. That is not a prediction of the ultimate award — the class must first be certified, liability established, the damages methodology survive later challenges and the amount actually proven.

For consumers, certification would transform this from litigation involving a handful of named buyers into a case capable of resolving claims tied to tens of millions of Amazon accounts at once. For Amazon, that is why the certification fight matters almost as much as the eventual merits.

About the Author

Samuel López is a reporter and legal correspondent for USA Herald who has reported for the publication since 2022. López has more than two decades of experience in the legal sector analyzing state and federal litigation, complex civil matters and evidentiary issues. His legal background informs his reporting on antitrust litigation, class actions, consumer protection and the financial consequences of major court rulings.

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