Legal Law

DOJ, Merrick Garland Deserve Some Credit score For $2.2B Publishing Trade Antitrust Swimsuit

(Photo by Brendan Smialowski/AFP/Getty Images)

You know who sucks to work for? Everyone. And the preceding two sentences are true under either of the ways you are reading them.

But I’m not talking about the Great Resignation at the moment. No, I’m talking about working for the government.

Working for the people is an honest, noble endeavor. It’s also generally poorly paying and thankless. You are going to get plenty of complaints, very few compliments, and a lot of scrutiny that probably has very little to do with what actually makes you good or bad at your job. Sometimes, if you have the bad fortune of having become Mike Pence over the course of an entire painfully boring lifetime, you even get your own constituents trying to hang you.

So, when a government office or official does something notably good, I think it’s worth pointing out. Celebrating even.

This week, the U.S. Department of Justice filed suit to block publishing industry giant Penguin Random House’s acquisition of Simon & Schuster, which is a close competitor. This $2.2 billion deal would have consolidated the publishing industry’s so-called “big five” (in addition to the aforementioned prospective mergees, the big five also includes Hachette Book Group, HarperCollins, and Macmillan) into, I guess, the “big four.” Not quite as catchy.

But current Attorney General and former spited Supreme Court nominee Merrick Garland is having none of it. “Books have shaped American public life throughout our nation’s history, and authors are the lifeblood of book publishing in America,” said Garland, according to a DOJ press release. “But just five publishers control the U.S. publishing industry. If the world’s largest book publisher is permitted to acquire one of its biggest rivals, it will have unprecedented control over this important industry. American authors and consumers will pay the price of this anticompetitive merger — lower advances for authors and ultimately fewer books and less variety for consumers.”

Spoken like a true booklover. Let’s not let the top dog get the final word in though: “In stopping Penguin Random House from extending its control of the U.S. publishing market, this lawsuit will prevent further consolidation in an industry that has a history of collusion,” said Acting Assistant Attorney General Richard A. Powers, a member of the Justice Department’s Antitrust Division. He also threw in some obligatory praise for his bosses, but I think that’s already more than enough praise in this column for anyone higher on the food chain than the unnamed Justice Department staff attorneys who I’m sure did most of the good work on the complaint.

This is the first major antitrust action undertaken by the Biden administration. Not surprisingly, the affected publishers have already vowed to fight it.

The DOJ’s antitrust suit to stop Penguin Random House from acquiring Simon & Schuster isn’t going to fix much about America. For one thing, maintaining a better competitive atmosphere in the publishing industry only affects authors and readers of books, and because neither benefit when people are just reading conspiracy theories online, well, you can probably see where I’m going with this. At least one political party’s base beliefs aren’t going to be affected all that much just because there are more and better books around.

That being said, it’s nice to see something fairly big happening in the antitrust world. And take it from someone who knows, the gross power imbalance already in existence in the publishing industry makes it heinous to try to deal with any member of the big five to get a book published if your last name isn’t something like “Obama” or “Trump.” Forget about all the blood, sweat, and tears that actually go into writing and editing a decent book, you better be ready to basically spend a year with a second full-time job of trying to get a literary agent, and then another year (at least) trying to get someone at a publishing house to look at your manuscript. And even after all that, ultimately the vast majority of people who write a book, including those with a handsome and brilliant readership on a fantastic legal website who can shamelessly plug their book available now at a low, low price, still make nothing or next to nothing for their efforts.

So, anyway, nice work DOJ attorneys. This is a good lawsuit, and feeling good about your work can occasionally make up for a lot of other sacrifices. And if you like that feeling, boy, just think of the spring in your step that’s going to be coming if anyone over there at the Justice Department actually is working on bringing criminal charges against Trump.


Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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