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Apple heads to court in 'unusual' antitrust trial over e-book prices

post #1 of 42
Thread Starter 
Today the U.S. Justice Department will take Apple to court over allegations that the computer maker illegally conspired with publishers to fix the prices of electronic books, in order to sell them to users of its iPad and other iOS devices at a higher cost.

iBooks


Apple is the last defendant in the price-fixing case, as the other publishers have agreed to settlements with the Justice Department in recent months. Apple, the government claims, knowingly engaged in a conspiracy with Macmillan, Simon & Schuster, Hachette Book Group, Pearson, and HarperCollins in order to set prices above the $10 norm that Amazon was charging for e-books.

A lawyer with Patton Boggs told Bloomberg it is "pretty unusual" to see a case like this go to trial ? likely due to the tendency for defendants, even tech giants, to settle. Observers note that it is indicative of a larger trend that has seen the Obama administration's Justice Department more vigorously pursuing antitrust actions against companies.

Should the government win the case, Apple would likely be barred from certain anticompetitive actions, including price fixing, in the ebook market.

Apple holds that it acted on its own, negotiating contracts with each individual publisher to establish an "agency" model. Under that model, publishers set prices for books instead of the retailers. Apple, under that model, receives 30 percent of the price for each book.

Apple says that, prior to its entry into the ebook market with the 2010 introduction of the iPad and the iBookstore, nine out of 10 ebooks bought by consumers were purchased through Amazon. Publishers are said to have been unhappy with the low $10 price the online retailer was set on charging for their products, even though Amazon was actually paying more money to the publishers than it was charging customers for the books.

According to Apple, its entry into the ebook market gave consumers more choices, better e-readers, and lower overall prices. CEO Tim Cook has been ardent in his defense of the company.

"The ebook case to me is bizarre," Cook said last week at AllThingsD's D11 conference. "We've done nothing wrong there and so we're taking a very principled position on this... And so we're going to fight."

The trial will proceed without a jury, with U.S. District Judge Denise Cote presiding. Cote's pre-trial comments may give Apple pause, though, as she previously said that the government likely has enough evidence to show a knowing conspiracy on Apple's part.

Among the evidence the Justice Department will produce are emails from late Apple cofounder Steve Jobs, as well as testimony from Eddy Cue, the Apple executive most involved with the negotiations with publishers. Jobs' email may be among the DOJ's most damning pieces of evidence, as it asks the publishers to "Throw in with Apple" at a price floor of $13 "and see if we can all make a go of this."

Lawyers for Apple and the Justice Department will give their opening statements on Monday in a Manhattan federal court.
post #2 of 42
With luck the first thing Apple will do is request a new judge, as this one has already decided the case before it starts.

Or if there is a chance of appeal, perhaps they won't and will hold it as an issue to file appeal.

A non tech's thoughts on Apple stuff 

(She's family so I'm a little biased)

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A non tech's thoughts on Apple stuff 

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post #3 of 42
Quote:
Originally Posted by charlituna View Post

With luck the first thing Apple will do is request a new judge, as this one has already decided the case before it starts.

Or if there is a chance of appeal, perhaps they won't and will hold it as an issue to file appeal.

I think that's not going to happen as I don't see how the judge stated the outcome ahead of time. At worse it just seems like poor form, but that may only because I've never heard a judge commenting publicly on a case before the final verdict.

She said what she thinks is likely, but in no way said Apple is guilty. Based on the evidence I've read I'm saying that I think Apple will be found not guilty, but if actual collusion evidence comes up I won't hesitate to change what I think the most likely result will be.

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post #4 of 42
I think this will be the first time ever that a company goes to trial over anticompetition allegations when said company does not only not have a monopoly, but is competing against a company that does.

I really don't like wearing tinfoil hats but this just reeks of lobbying by Amazon.
post #5 of 42
Quote:
Originally Posted by charlituna View Post

With luck the first thing Apple will do is request a new judge, as this one has already decided the case before it starts.

Or if there is a chance of appeal, perhaps they won't and will hold it as an issue to file appeal.

I think the reason for the comments made by the judge is actually good for Apple. To me it's a last attempt to get Apple to settle out of court by "indicating" they will lose. Apple is not biting on this one .... good on them. At worst, if Apple loses...  (they won't) ... there are the grounds for an appeal.

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See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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post #6 of 42
Quote:
Originally Posted by newbee View Post

To me it's a last attempt to get Apple to settle out of court by "indicating" they will lose.

I like that that theory.

"The real haunted empire?  It's the New York Times." ~SockRolid

"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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post #7 of 42
Quote:
Originally Posted by Mike Barriault View Post

I think this will be the first time ever that a company goes to trial over anticompetition allegations when said company does not only not have a monopoly, but is competing against a company that does.

I really don't like wearing tinfoil hats but this just reeks of lobbying by Amazon.

It's been said before ..... we have the best legal system that money can buy (and often does).

See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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post #8 of 42
Quote:
Originally Posted by Mike Barriault View Post

I think this will be the first time ever that a company goes to trial over anticompetition allegations when said company does not only not have a monopoly, but is competing against a company that does.

I really don't like wearing tinfoil hats but this just reeks of lobbying by Amazon.

 

Being the biggest player in a market isn't a prerequisite for anticompetitive behavoir and price fixing.  If you look at past examples, such as pricing fixing for memory chips several years ago, none of the players by themselves dominated the market, but when they came together they represented the majority of the market.  Same thing here, Macmillan, Simon & Schuster, Hachette Book Group, Pearson, and HarperCollins combined represents a significant part of the market.  What's unique here is that Apple role is more of a facilitator, broker, middle-man, or whatever you want to call it.

post #9 of 42
Quote:
Originally Posted by SolipsismX View Post


I like that that theory.

(in my best "Elvis voice") .... Thank you, thank you very much.

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post #10 of 42
"... even though Amazon was actually paying more money to the publishers than it was charging customers for the books."

I love these stories. So Amazon was selling below its marginal cost to maintain its position in the market, which is itself a violation of antitrust law.
post #11 of 42
Quote:
Originally Posted by schmidm77 View Post

"... even though Amazon was actually paying more money to the publishers than it was charging customers for the books."

I love these stories. So Amazon was selling below its marginal cost to maintain its position in the market, which is itself a violation of antitrust law.

They weren't selling all books below cost, only a specific segment of "Best-sellers".
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post #12 of 42
Quote:
Originally Posted by schmidm77 View Post

"... even though Amazon was actually paying more money to the publishers than it was charging customers for the books."

I love these stories. So Amazon was selling below its marginal cost to maintain its position in the market, which is itself a violation of antitrust law.

 

Loss Leaders are not illegal.  

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post #13 of 42
This is going to be a circus.
post #14 of 42
Edit: Double post
Edited by Lord Amhran - 6/3/13 at 7:39am
post #15 of 42
I'm equally perplexed by this case. It's fundamental to want to pay the lowest price for a product. And it's only logical to want to continue paying the lowest possible price. If apple can prove that the publishers were given the option to set the price, with the stipulation that it be lower than or equal to the cheapest price currently available on the market, I can't see how apple can lose. And I'm not aware of any laws which state that it's illegal for a consumer or retailer to suggest price points to a company for their products. Apple needs to prove that these suggestions were just that - suggestions. However, if the deal proposed by apple did happen to dictate a fixed $12.99 price in it's terms, (or whatever the cost actually is) then perhaps apple could indeed lose. But that's the only way I see it happening. I guess we'll wait and see what the evidence shows.
post #16 of 42
Quote:
Originally Posted by thataveragejoe View Post

Loss Leaders are not illegal.  

Loss leaders aren't illegal, but using a monopoly position with predatory pricing that creates barriers of entry into a market is anti-competivive and illegal under most competition laws.

"The real haunted empire?  It's the New York Times." ~SockRolid

"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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post #17 of 42
Quote:
Originally Posted by thataveragejoe View Post

Loss Leaders are not illegal.  
Predatory pricing, if it could be established, is... and has been since the Sherman Act
post #18 of 42
Quote:
Originally Posted by schmidm77 View Post

Predatory pricing, if it could be established, is... and has been since the Sherman Act

Perhaps the Justice Department will go after Amazon at some point after the issue with Apple is dealt with. At least for now whatever pricing Amazon specifically offers or whether it might qualify as "predatory" has nothing to do with the current case.
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post #19 of 42

Can Apple get by with providing an opening statement saying they did nothing wrong and then plead the Fifth?!

 

Or maybe for their defense, Apple can get the "Deniability Sayings for High Government Officials for Dummies" handbook!  Packed with everyone's favorite, "I was there for the Easter Egg roll... with my kids" and other common explanations " I don't recall", "I don't remember', "I just now heard about that", "I learned it from the media like everyone else", "That happened a long time ago.", and who can forget, "At this point, what difference does it make?!"...

/

/

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post #20 of 42
Quote:
Originally Posted by Gatorguy View Post


They weren't selling all books below cost, only a specific segment of "Best-sellers".

Only the books that were really in demand which so other store could not compete because there was no profit in the industry.  Since they took it over at the very beginning, and now had 90 % of the market no one dared enter because they could easily go back to their tactics of selling many more below cost.  There is a reason there were few smaller ebook stores.  Even the authors couldn't compete against them with their own product.

post #21 of 42
Glad the DoJ stepped in.

I really don't mind if Apple wants to sell the same books for $12.99 to Apple users as anyone else can buy for $9.99 elsewhere.

When they implement clauses that will cause their vendors to raise prices on other sites to match theirs, that would be price fixing. (It has nothing to do with 'monopolistic' practices so those arguments being made are somewhat moot)

So, all the book publishers wanted to make more money and arbitrarily and completely independently decided to raise their prices to the same value- which just happened to be the value that Apple had determined. That is basically Apples case. This case is indeed unusual- but only because most companies settle when they get caught with their hand in the cookie jar. Apple stands to lose little. They *could* be found innocent in this trial. Even if found guilty it will be up to the states to pursue damages and Apple knows it can steamroll them- so there is little downside to 'fighting' this.

The 'throw out the judge' arguments are also pretty moot. There's no jury and she is the presiding judge. She was asked for her opinion on the evidence. She could have stated that there was insufficient evidence and most likely the case would not have been brought. She basically said there was enough evidence to take it to court... ie so far it 'walks like a duck' and 'quacks like a duck' Both sides still get to make their cases.

Steve Jobs tells all the publishers... If you set your prices to more than $12.99 we're not interested in doing business with you. Less than $12.99 and we won't make our 30% rake at anything profitable to you. And all publishers shortly thereafter deciding to independently set their prices to $12.99 is just a little bit suspicious in my opinion.
post #22 of 42
A matter for appellate courts.
Both sides make their record.
Matter of law as little dispute as to facts.
Also Apple will have a large cushion if case
Ultimately lost .
Credits from prior settlements.
Ml
post #23 of 42
Quote:
Originally Posted by Frood View Post

When they implement clauses that will cause their vendors to raise prices on other sites to match theirs, that would be price fixing. (It has nothing to do with 'monopolistic' practices so those arguments being made are somewhat moot)

There was no such clause. In no way has it been shown that Apple set or fixed a single price or required vendors to raise prices. The publishers could have given Apple the lower price that Amazon was selling it at. The only thing they wanted is not to have their prices higher than others (which doesn't sound unreasonable when you're up against a monopoly that is arguably using predatory pricing to keep others out of the market). What this did was kill Amazon's predatory price dumping, which the publishers could have matched with iBookstore if they had wanted to. They choose finally tell Amazon to fuçk off after years of predatory pricing at the expense of their product's value.


Q: Would Apple have even need to use a favored nation clause if Amazon was selling their books at the levels the publishers were being paid? Id set, at cost? I don't think so.
Edited by SolipsismX - 6/3/13 at 8:37am

"The real haunted empire?  It's the New York Times." ~SockRolid

"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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post #24 of 42
Quote:
Originally Posted by genovelle View Post

Only the books that were really in demand which so other store could not compete because there was no profit in the industry.  Since they took it over at the very beginning, and now had 90 % of the market no one dared enter because they could easily go back to their tactics of selling many more below cost.  There is a reason there were few smaller ebook stores.  Even the authors couldn't compete against them with their own product.

You could be correct. But that wouldn't have anything to do with the DoJ claims against Apple.
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post #25 of 42
Originally Posted by Caseevaluator View Post
A matter for appellate courts.
Both sides make their record.
Matter of law as little dispute as to facts.
Also Apple will have a large cushion if case
Ultimately lost .
Credits from prior settlements.
Ml

 

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Originally posted by Relic

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post #26 of 42
Quote:
Originally Posted by Frood View Post

Glad the DoJ stepped in.

I really don't mind if Apple wants to sell the same books for $12.99 to Apple users as anyone else can buy for $9.99 elsewhere.

When they implement clauses that will cause their vendors to raise prices on other sites to match theirs, that would be price fixing. (It has nothing to do with 'monopolistic' practices so those arguments being made are somewhat moot)
 

 

Price fixing isn't illegal, in and of itself.

 

The issue is whether the major publishers CONSPIRED TOGETHER to fix their prices (which they likely did, given they settled), and, if so, whether Apple was the instigator of said conspiracy.

 

For example:

 

Scenario #1: Apple approaches Publisher A, who has 20% market share, about the agency model. Publisher A agrees, and fixes the selling price at $12.99, and agrees not to allow it to be sold cheaper anywhere else under a Most Favored Nation Clause.

 

Not illegal.

 

 

Scenario #2: Apple approaches Publishers A, B, C, D, and E, who COMBINED have over 70% market share. They all agree to adopt the agency model, and decide TOGETHER to fix the selling price at $12.99, yadda yadda yadda.

 

Illegal for everyone.

 

Notice the difference? The key is if the publishers conspired together, thus abusing their combined market positioning; price fixing is thus illegal. Apple, by "running point" on this is also guilty.

 

 

Scenario #3: Apple approaches Publishers A-E, but does so separately. Without Apples knowledge, the Publishers all talk amongst themselves, and agree to ALL follow the agency model and agree to Apple's terms, yadda yadda yadda.

 

Illegal for the publishers, not for Apple.

 

Apple is being accused of being intimately involved in the alleged conspiracy; Apple is arguing that it in good faith just negotiated this agreement with the various publishers, and was not party to any conspiracy; from Apple's point of view, is this any different than when they negotiated the $0.99 and $1.29 iTunes songs?

post #27 of 42
Quote:
Originally Posted by SolipsismX View Post


There was no such clause. In no way has it been shown that Apple set or fixed a single price or required vendors to raise prices. The publishers could have given Apple the lower price that Amazon was selling it at. The only thing they wanted is not to have their prices higher than others (which doesn't sound unreasonable when you're up against a monopoly that is arguably using predatory pricing to keep others out of the market). What this did was kill Amazon's predatory price dumping, which the publishers could have matched with iBookstore if they had wanted to. They choose finally tell Amazon to fuçk off after years of predatory pricing at the expense of their product's value.


Q: Would Apple have even need to use a favored nation clause if Amazon was selling their books at the levels the publishers were being paid? Id set, at cost? I don't think so.

 

I agree with a lot of your points.  I don't think Apple will be found guilty, but I obviously haven't seen all the evidence.  There is a lot of 'wink, wink, nudge, nudge' to this and Apple has amazing lawyers.  Was there a deliberate effort and push on Apples and the publishers part?  I think you'd have to have your head buried in the sand or be so love struck with Apple that you're willing to overlook it.

 

I do think the publishers are largely at fault.  They allowed Amazon to squeeze them further than they should have and that's a tough spot to get out of.  If one of them decides its not worth it and raises their prices- they are not going to sell as many books unless their competitors also raise their prices.  That's kind of the rub.  They were in a tough spot, felt they had to do something, and all got together and agreed to all raise their prices.  Apple may have pushed just a little too far with the 30% requirement.

 

Either way, some kind of determination has to be made on 'side loaded' profits and at what point they become anti-competitive.  There's probably a better term for it, but I mean companies like Amazon and Google's profit structures.  They make a lot of money through corollary profits, so they don't actually need to make a profit on certain items.  That makes people trying to profit on those items very tough.  They are not really being predatory as they are not taking a loss in order to drive others out of business, they are taking a loss on certain items because it makes their overall profits higher.   Google breaks even on Android because giving it away makes them a ton of money in search- so Android is indeed very profitable for Google- just not directly.  Amazon sells Kindles at close to zero margin (maybe even negative)- but they make a ton of money by selling Kindles because then people then shop Amazon (and even if they don't shop amazon I think if the average user buys 5 apps on the Amazon app store the margin on the Kindle is already approaching 20%).

post #28 of 42
Quote:
Originally Posted by Pendergast View Post

 

Price fixing isn't illegal, in and of itself.

 

The issue is whether the major publishers CONSPIRED TOGETHER to fix their prices (which they likely did, given they settled), and, if so, whether Apple was the instigator of said conspiracy.

 

For example: ...

 

 

 

I like the comparison that you laid out ... does anyone know which is closest to what is alleged to have happened? I would think that Apple knows the legal pitfalls of grand negotiations like this, so I would be surprised if they got them all together in one room with their lawyers to hammer it out.

 

At the same time, it's still rather strange to me that a publisher wouldn't be free to set the price of their authors books using the agency model and to have that price vary according to whatever criteria they deem appropriate. If you want to sell John Grisham releases at 13.99, then why not. If the public thinks that is too high and another publisher is selling Tom Clancy for 11.99, maybe you'll sell fewer titles to price sensitive readers. Maybe they'll adjust their agency pricing on that title, or maybe the readers will shell out the extra two bucks if they really want that book. If another publisher leaves it up to Amazon for their authors, will someone who wants to read John Grisham jump to a different book just to save a few bucks? ... I have trouble imagining that, unless you'll buying it as a gift and don't really know the persons taste.

 

In any event, I subscribe to the Amazon lobbyist scenario stoking the controversy and prodding the case. Bezos was breathing fire the morning that he got the wire. 

post #29 of 42
Quote:
Originally Posted by battiato1981 View Post

I like the comparison that you laid out ... does anyone know which is closest to what is alleged to have happened?

The 2nd one as it's the only one that makes Apple cuplable.

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"There is no rule that says the best phones must have the largest screen." ~RoundaboutNow

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post #30 of 42
Here's the DoJ's opening statement in slideshow format.
http://www.scribd.com/doc/145486131/U-S-v-Apple-Et-Al-Opening-Slides
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post #31 of 42
Seeing only the DoJ's summary evidence so far it certainly looks like Apple facilitated the matching agreements between the publishers. No idea if that's illegal or not.
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post #32 of 42
Here's my opinion. Prior to Apple entering the market, Amazon had a virtual monopoly on e-books. Amazon sold e-book below cost, effectively preventing competitors from entering the market. Apple entered the market and created actual competition. Once Amazon lost their monopoly position, publishers were free to raise their prices.

The Fed's position seems to be that Apple broke the law because it knew, and acknowledged that prices would likely go up, once Amazon stopped dumping product into the marketplace.

I am surprised that the Feds haven't also started an antitrust action against Amazon. Prior to Apple entering the market, Amazon was selling below cost. Generally a large company is prohibited from selling below cost to prevent competitors from entering the market.

I am not an attorney, and the above is simply my personal opinion.
post #33 of 42
Quote:
Originally Posted by Pendergast View Post

... from Apple's point of view, is this any different than when they negotiated the $0.99 and $1.29 iTunes songs?

I think that's generally what Eddy Cue is saying. Apple needed a way to break into the eBook market in a big way and he handled this negotiation the same way they handled iTunes and the music publishers.

Apparently the trial will hinge on Mr. Cue's activities since he acted as the go-between, communicating back and forth between the publishers and Mr. Jobs (who looks to have been smart enough to stay out of most direct contact with the pubs himself).

EDIT: The threads on Apple and the DoJ may get fairly quiet for a day or two. I think the evidence the DoJ says they're prepared to offer is a bit more than some AI members expected to see. I know there's more there than I expected.
Edited by Gatorguy - 6/3/13 at 11:24am
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post #34 of 42

I only use the Kindle App on my iPad.  More choice where to read the books.

post #35 of 42
Quote:
Originally Posted by schmidm77 View Post

"... even though Amazon was actually paying more money to the publishers than it was charging customers for the books."

I love these stories. So Amazon was selling below its marginal cost to maintain its position in the market, which is itself a violation of antitrust law.

Loss leaders are not illegal. It wasn't every ebook that they were taking a loss on but only a select few.
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post #36 of 42
Quote:
Originally Posted by SolipsismX View Post

Loss leaders aren't illegal, but using a monopoly position with predatory pricing that creates barriers of entry into a market is anti-competivive and illegal under most competition laws.

And what barriers were there?
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post #37 of 42
Quote:
Originally Posted by dasanman69 View Post


And what barriers were there?

 

Getting access to products to sell.

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post #38 of 42
Quote:
Originally Posted by hill60 View Post

Getting access to products to sell.

Oh I see, just like when no other carrier could get the iPhone to sell. Thanks for clarifying that for me.
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post #39 of 42
Quote:
Originally Posted by dasanman69 View Post

Oh I see, just like when no other carrier could get the iPhone to sell. Thanks for clarifying that for me.

Yep, getting providers to take a risk on a new venture.

A normal business procedure.
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post #40 of 42
Quote:
Originally Posted by hill60 View Post

Yep, getting providers to take a risk on a new venture.

A normal business procedure.

So what's the problem?
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