Sony BMG, Universal, Warner Bros. and EMI, a/k/a the big four record labels are all headed back to court over price-fixing allegations, after Monday’s ruling by the U.S. Supreme Court, denied their petition for certiorari in Sony Music Entertain- ment v. Kevin Starr, No. 10-263. Denying the certiorari petition (this is a fancy term for “request to hear this appeal”) has the effect of up- holding the decision being appealed, which in this case was by the Second Circuit Court of Appeals. That court overruled the trial court’s order dismissing the case.
The basis of the Second Circuit’s decision was that it was sufficient for the plaintiffs to allege facts that suggest a conspiracy, and that the trial court should not have required them to allege facts that ruled out any possibility that the record companies were acting independently.
The irony of this case, however, is that the alleged unlawful conduct occurred back in 2001, i.e., pre-iTunes. Shortly after iTunes’ launch, in 2003, the big four record companies’ combined 80% ownership of the digital music download market was all but eclipsed.