As seen in Global Competition Review’s “Litigator of the Week: Saul Morgenstern” and “Judge Pulps Indie Booksellers’ Claims Against Amazon and Publishers”
Global Competition Review selected Kaye Scholer Partner Saul Morgenstern as its Litigator of the Week. Morgenstern was recognized for his key role in successfully obtaining the dismissal with prejudice of an antitrust class action filed by three independent retail booksellers against Amazon.com and the five biggest publishing houses in the United States, including Kaye Scholer client Penguin Random House LLC.
According to Morgenstern, who led the motion to dismiss on behalf of the publishers, “the case is a win for the Twombly/Iqbal pleading standard’s effectiveness in removing weak complaints quickly from the courts.” He notes that “the expediting of the process resulted from cooperation among the attorneys as well.”
The defense team “took the unusual step of calling up the other side to let them know they had allegations in their complaint which were demonstrably untrue,” said Morgenstern, who is Co-Leader of Kaye Scholer’s Antitrust Practice. The publishers then sent additional documents to the plaintiffs’ attorney, Maxwell M. Blecher of Blecher & Collins, who then asked the Court for permission to amend the complaint to correct errors in advance of the defendants’ motion to dismiss. The Court permitted the amendment, but advised that it would be plaintiffs’ only amendment, signaling that they would not get another chance if the Court granted a subsequent motion to dismiss.
“I suppose you could make an argument that amending before litigating the motion to dismiss deprives the plaintiff’s counsel of the insights one might get from an opinion that counsel could use to address the judge’s articulated concerns in a post-decision amended complaint,” Morgenstern notes. However, he also points out that “leaving factual errors in the complaint that goes before the court could risk an attorney's credibility.”
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