Consumers, Laborers, and Antitrust, oh my! Why Labor Considerations Should be Examined in Antitrust Law Through the Lens of U.S. v. Bertelsmann SE & CO. KGaA

Imagine the disappointing feeling of walking into a bookstore and finding shelves filled with only a narrow and non-diverse selection of titles. This feeling nearly became a reality when the Department of Justice (“DOJ”) won an action blocking a proposed merger between mega publishing houses Penguin Random House and Simon & Schuster in the case United States v. Bertelsmann SE & Co. KGaA (2021) (“Bertelsmann”). The DOJ claimed that the merger would harm consumers by reducing the diversity of books available and directly harm authors—the creative labor force—by limiting competition for publishing deals and suppressing their compensation. For the first time, the court recognized a “submarket of targeted sellers”—the authors of anticipated top-selling books—and acknowledged how the merger would leave them vulnerable to anticompetitive practices. This decision marks a notable shift in antitrust enforcement, from its’ traditional focus towards protecting consumers almost exclusively. The Bertelsmann case raises an important and especially timely question: Should antitrust law also protect workers, not just consumers? This Note argues that Bertelsmann reflects a necessary expansion of antitrust analysis to include labor market harms like the harms to authors highlighted in Bertelsmann. By examining the legal framework underpinning antitrust law and comparing Bertelsmann to other labor-centered cases––such as United States v. Bayer AG and the recent class action lawsuit Jien v. Perdue Farms, Inc.––this Note advocates for a broader approach to antitrust enforcement––one that protects both consumers and the workers who drive our economy.