Judge Rules Inclusive Access Program Is Not a Monopoly

Paying college tuition has long been a struggle for many aspiring students and their families, but when it comes to paying for college, tuition is just the beginning. The cost of textbooks and other school supplies is another financial hurdle, and according to an antitrust lawsuit, some of the biggest on-campus bookstore chains and publishers of college textbooks have deliberately created and taken advantage of the Inclusive Access program to monopolize the market on college textbooks and raise prices.

The Inclusive Access program requires students to buy one-time access codes to access textbooks and course materials online. Because the access codes only work once, students are required to buy into the program each semester, meaning they can’t reuse textbooks or any other online materials they (or other students) already used in another class. Because all the materials are available online, the program is less expensive than buying new, hard-copy textbooks, but more expensive than buying used, hard-copy textbooks.

The lawsuit was filed by college students, independent bookstores, and online textbooks retailers against Barnes and Noble Education, Follett Higher Education Group, Cengage Learning, McGraw Hill, and Pearson Education. According to the lawsuit, the textbook publishers and major retailers are collectively making $3 billion annually from their sales through the Inclusive Access program. At the same time, the lawsuit alleges, the same program raised prices for hundreds of thousands of students, requiring them to pay for the online access code to get all their class materials, instead of getting some of their textbooks used, which would allegedly have saved them money.

According to the plaintiffs, it’s no accident that the publishers and major textbook retailers have made billions off of college students. Instead, the lawsuit alleges it was a conspiracy in which the defendants came together to create and agree upon a plan that would require every student to buy from the defendants every semester, thereby allegedly giving the defendants the power to determine the pricing.

The lawsuit was filed in Manhattan U.S. District Court where it was dismissed by Judge Denise Cote, who said the plaintiffs failed to show sufficient evidence of a conspiracy to suppress competition in the marketplace. Instead, she wrote in her decision that the pricing was due to hundreds of colleges and universities across the country deciding to make the switch from hard copy to digital textbooks.

She went on to say that any injury the plaintiffs may have suffered would have been caused by the colleges and universities choosing to use brick-and-mortar retailers who were in competition with the plaintiffs as their on-campus bookstores. That assertion does not factor in the allegation that students were allegedly also harmed by the Inclusive Access program by allegedly being forced to pay higher prices for their class materials.

Judge Cote did not specify whether the colleges and universities were influenced by the Inclusive Access program to make the switch to online textbooks over hard-copy textbooks. She did note that some of the defendants might have had a financial incentive to offer the Inclusive Access program, but offering a financial incentive is not the same as forcing someone to adopt a product or service, and it’s not enough to demonstrate a conspiracy.

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