Kensington Antitrust Advisors Group

In State of Texas et al. v. Penguin Group USA Inc. et al., Southern District of New York Judge Denise Cote has ruled that Penguin Group USA Inc. waived its right to a jury trial on damages claims brought by a group of 30 states against Apple and several publishing companies for fixing e-book prices. 

During an October 2012 scheduling conference involving the Department of Justice’s, Antitrust Division’s, suit for injunctive relief and the accompanying suits by 30 states that also sought damages, Penguin agreed to a bench trial that would resolve all of the plaintiffs’ claims.  Subsequently, the publisher settled with the DOJ, but the state damages case is on-going against both Apple and Penguin.  Apple is the only party that has not settled with the DOJ. 

Penguin sought to be excluded from the bench trial, arguing that it had a Seventh Amendment right to a jury trial on the state’s damages claims.  Judge Cote rejected the request for a jury trial, holding that Penguin was bound by its earlier agreement to the bench trial.  “It is clear that Penguin, along with all other litigating parties,” the court explained, “knowingly and intentionally waived a jury determination of liability on the states’ claims.”