In a supplemental reply addressing amicus briefs filed by the Authors Guild and attorney Bob Kohn, who made headlines this week by submitting a five-page comic brief, U.S attorneys have urged Judge Denise Cote to "enter the proposed Final Judgment" in the e-book price-fixing case against five publishers and Apple "without further hearing.”
While Bob Kohn’s inspired graphic brief captured public attention earlier this week, U.S. attorneys dismissed it in just a few paragraphs. “Mr. Kohn’s submission is largely focused on (1) criticizing the merits of the United States’ Complaint and (2) expressing frustration with the Court’s Order that amicus filings be limited to five pages.” The brief argues that Kohn’s assertion that “if the government’s conclusions are not reasonable, the Court cannot hold the settlement to be in the public interest,” wrongly suggests that the government should have “to prove its case before it can settle it,” which U.S. attorneys say is in fact not necessary, nor customary. The filing only briefly addresses Kohn’s argument that the settlement is inherently unreasonable, in a footnote, no less, arguing that the kind of horizontal price-fixing alleged here has been found "unlawful, per se" by the Supreme Court “consistently and without deviation.”
In a statement to PW, Kohn, in turn, was not impressed with the government's response. "In its terse response, the Justice Department betrayed exactly the kind of simplistic legal thinking that I had only hoped to portray of them in my graphic-novel brief," he wrote. "The government's responseis emblematic of their fear, andapparent inability to respond tothe substantive arguments in my brief: that the Justice Departmentwill never,as a matter of law, be able to show any consumer harm from the defendants' alleged conduct. Since consumer harm is essential to their factual foundation, the Justice Department's decisions regarding the settlement areinherentlyunreasonable."
As to the more conventional brief filed by the Authors Guild, the DoJ brushes aside concerns that “Amazon’s e-book discounting” will harm print book distribution. “In short, the Authors Guild offers no authority for its insistence that the Court undertake an assessment of the entire ‘literary marketplace’ before it determines that undoing the effects of price collusion in the sale of e-books is in the public interest."
In addition, agent Simon Lipskar also filed a letter with the court, regarding the settlement. "As you are likely aware, I sent a fairly extensive comment to the Department of Justice regarding the proposed settlement in the ebook pricing case," Lipskar wrote. "As the time draws near for you to render your judgment as to whether this settlement is in the public interest, I felt that it behooved me to write directly to you to express how profoundly the government had failed to address the objections raised to the settlement in its response to the Tunney Act comments."
In other housekeeping matters, Judge Cote approved an extension until September 14 for the settling publishers (Hachette, HarperCollins, and Simon & Schuster) to respond to the consumer class action filed against them.