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The Federal Trade Commission (FTC) and Amazon both pressed the Ninth Circuit on Wednesday to deny the American Booksellers Association's (ABA) bid to intervene in the ongoing government antitrust case against Amazon. Both parties argue that the association’s claims, focused on Amazon’s book sales practices, diverge too significantly from the broader issues at the heart of the case.

Amazon Booksellers Case : Divergent Antitrust Claims

In their answering briefs, the FTC and Amazon contended that the ABA’s claims, which allege that Amazon is using its dominant position as a buyer to coerce publishers into offering favorable terms, differ from the government’s case against Amazon. The FTC's primary focus is on Amazon's alleged monopoly in the broader online retail market, particularly involving "superstores" that sell a wide range of products.

“This claim is clearly different from the government’s claim because it involves a different theory of anticompetitive conduct and antitrust harm in a different market,” the FTC stated in its brief. The commission further argued that adding the ABA’s claims would unnecessarily complicate and delay the case, hindering the government’s efforts to ensure fair competition in the market.

Amazon echoed the FTC’s stance, stating that the ABA’s claims "diverge from and contradict" the fundamental premise of the government’s allegations. Amazon argued that the government is focused on practices that allegedly raise prices for consumers across various product categories, not just books.

“Intervention is not intended to allow parties like ABA to shoehorn into existing litigation such an unrelated and contradictory legal claim,” Amazon asserted.

Background of the Antitrust Case

The FTC, along with attorneys general from 17 states, has accused Amazon of maintaining illegal monopolies in the markets for online superstores and online marketplace services used by third-party sellers. The case targets Amazon’s policies that allegedly punish sellers for offering lower prices on other platforms and require merchants to use Amazon’s logistics services to access its marketplace.

The ABA, which represents 2,500 independent bookstores, sought to intervene in the case, arguing that Amazon's dominance in the book market has allowed it to dictate lower wholesale prices from publishers, undercutting independent stores. U.S. District Judge John H. Chun denied the ABA’s motion to intervene in June, prompting the association to appeal to the Ninth Circuit.

Amazon Booksellers Case : FTC and Amazon's Opposition

The FTC's brief highlighted that the government's case is centered on Amazon’s practices across a wide range of product categories, with only a brief mention of books in the original complaint. Specifically, the FTC referenced Amazon's use of a price-adjustment program, Project Nessie, which allegedly generated $57 million in additional profits from higher-priced books in 2018. However, the brief noted that Project Nessie also affected at least 12 other product categories, bringing in at least $10 million each.

Amazon, in its brief, pointed out that the ABA had unsuccessfully lobbied the FTC to include a claim under the Robinson-Patman Act, which addresses price discrimination. The commission has not enforced this act since the 1970s, and the brief noted that a New York federal court had dismissed a similar claim brought by one of the ABA’s members against Amazon and major publishers last year.

Potential Implications

The FTC and Amazon both warned that allowing the ABA to intervene would add significant complexity to the case, potentially delaying the government’s ability to protect consumers from Amazon’s alleged monopolistic practices. The FTC emphasized that the government’s case is critical for determining whether online commerce in the U.S. will be governed by fair competition.

As the Ninth Circuit considers the ABA’s appeal, the outcome could impact not only the trajectory of the government’s antitrust case against Amazon but also the broader landscape of competition in the book market.