Manhattan US District Court Judge Denise Cote has dismissed antitrust lawsuits accusing leading on-campus bookstore chains and college textbook publishers of using the Inclusive Access program to eliminate competition and raise prices.
Under the Inclusive Access program, students need to buy one-time access codes to receive their online textbooks and other course materials. The program is usually more affordable than getting new hard copy textbooks but more expensive than used textbooks.
The case was brought by undergraduate and graduate students, independent bookstores, and online textbook sellers. The defendants — Barnes and Noble Education; Follett Higher Education Group; publisher Cengage Learning; McGraw Hill; and Pearson Education — allegedly used Inclusive Access to dominate the market for new textbooks, raking in more than $3 billion a year. This program allegedly boosted prices for hundreds of thousands of students while virtually eliminating competition from used textbooks.
“The Publishers collectively devised and agreed on a plan to force upon the market a product that must be purchased anew from the Publishers by every single student every single semester, thereby eliminating all substitute products, including the significant secondary market for Course Materials,” they wrote in the lawsuit.
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The Court’s Decision
Judge Cote decided that none of the proposed classes of plaintiffs showed a conspiracy to suppress competition, even though some of the defendants may have been motivated to offer the Inclusive Access program because it served their financial interests.
In addition, Judge Cote ruled that it was the adoption of digital textbooks across hundreds of colleges and universities, and not the conduct of the defendants, that affected the sales of independent bookstores and online textbook sellers.
“Any injury to the plaintiffs is due to the institutions selecting brick-and-mortar retailers other than the plaintiffs as their on-campus bookstores,” she wrote.
