Abbey House Media, Inc. v. Simon & Schuster, Inc., 869 F.3d 53

Diesel eBooks (successor Lavoho, LLC) was an independent ebook retailer whose revenues fell sharply after major publishers and Apple switched from a wholesale model to an agency pricing model.
Under the wholesale model publishers suggested retail prices but retailers set final prices; under agency pricing publishers set retail prices and paid retailers a commission.
The Second Circuit previously held that Apple and the publisher defendants conspired unlawfully in violation of the Sherman Act (United States v. Apple, 791 F.3d 290 (2d Cir. 2015)).
Diesel sued for antitrust damages, alleging the switch to agency pricing (the result of the conspiracy) caused its business decline.
The district court granted summary judgment for the publisher defendants, finding no genuine dispute of material fact that Diesel suffered an antitrust injury caused by the conspiracy and that Diesel’s business was not grounded in price competition.
The Second Circuit reviewed the record de novo, adopted the district court’s thorough opinion, and affirmed the grant of summary judgment for the defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Antitrust injury — did Diesel suffer a cognizable injury from the conspiracy?	Diesel: lost sales and revenues from the pricing change are antitrust injuries.	Defs: Diesel’s business model was not price-competition based; losses do not flow from the anticompetitive aspect of the conspiracy.	No antitrust injury as a matter of law.
Causation — were Diesel’s injuries caused by the unlawful conspiracy?	Diesel: the switch to agency pricing caused its decline.	Defs: Diesel viewed agency pricing positively at the time; its decline had other causes not attributable to the conspiracy.	No legally cognizable causation; summary judgment for defendants.
Evidentiary sufficiency at summary judgment	Diesel: disputes of fact exist about injury and causation.	Defs: record is undisputed and supports judgment as a matter of law.	Court: no genuine dispute of material fact; de novo review affirms summary judgment.
Effect of prior liability ruling (Apple conspiracy) on damages claim	Diesel: prior finding of conspiracy supports its damages claim.	Defs: Liability alone does not establish antitrust injury or causation for Diesel.	Prior liability does not entitle Diesel to damages; must still show cognizable injury and causation.

United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015) (held publishers and Apple conspired unlawfully to adopt agency pricing)
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (standard for de novo review of summary judgment)