California attorney and music industry veteran Bob Kohn has asked Judge Denise Cote for permission to file an amicus brief in connection with the DoJ’s price-fixing settlement in order "to correct potentially misleading statements of law contained in the DOJ Response," including one statement Kohn maintains is especially important: that Amazon's e-book business is profitable.
In his motion, Kohn asks the court to "order the United States to file with the Court all documents and other materials collected and/or reviewed by the U.S. attorneys in support of the government’s statement that 'Amazon’s e-book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.'"
Generally speaking, Kohn's motion echoes the concerns of more than 800 comments filed with the DoJ which portray the final proposed settlement as unreasonable. Specifically, however, he suggests that "the DOJ applied the wrong law of predatory pricing," in crafting the settlement. "In the Second Circuit, below marginal cost pricing is presumed illegal," Kohn argues. "To overcome the presumption, and to test the reasonableness of the government’s conclusion, the Court must consider the materials and data reviewed by the DOJ in its stated investigation of Amazon’s pricing policies."
It remains far from certain that Cote will accept Kohn’s proposed brief. The DoJ position is that it opposes the acceptance of any Amicus briefs. In addition, Kohn has submitted a lengthy, 25-page proposed brief, and asked the court for permission to add 12 more pages, a request that may be unlikely given that Cote has limited the length of the amicus brief to five pages for the American Booksellers Association and Barnes & Noble’s joint brief.
On his Web site, Kohn is described as "an attorney and high tech executive," and the founder of eMusic,the pioneering MP3 music-download service. He is currently Chairman & CEO of RoyaltyShare Inc.