One reason lies in the Justice Department's 36-page complaint, which recounts how publishers met over breakfast in a London hotel and dinners at Manhattan's posh Picholine restaurant, which boasts a "Best of Award of Excellence" from Wine Spectator magazine. The key point is that Apple wasn't present.

The Department of Justice "has a far better case against the publishers than Apple," saysDominick Armentano, professor emeritus of economics at the University of Hartford and author of Antitrust and Monopoly who's now affiliated with the Independent Institute in Oakland, Calif. "If the CEOs of the various publishers got together in hotel rooms to discuss prices, they are sunk" and might as well settle, he says.