He may not end up winning, but Bob Kohn may succeed in pioneering a new genre. Unhappy that the court ignored his now famous five-page amicus brief presented as a comic strip, and that the DoJ referred to it as a “frolic,” in its opposition brief filed this week, attorney and RoyaltyShare founder Bob Kohn doubled down, once again filing his response to the DoJ’s opposition as a comic strip. “The DOJ made it clear it was not amused by my graphic-novel amicus brief,” Kohn told PW in a statement, “but while they were quick to insult its form they utterly failed to respond to its substance.”
In his response, Kohn, hammers the DoJ position that Kohn should not be allowed to intervene—comic book form or not. “The DOJ says that I do not meet the standard of Rule 24 of the Federal Rules of Civil Procedure, because I could not have been sued by the DOJ for price fixing,” Kohn told PW in a statement. “The DOJ did not cite one Tunney Act case that supports this ridiculous reading of the law. I cited several cases to support mine. In particular, in the Microsoft case, the federal courts allowed two trade associations to intervene for the sole purpose of appeal, even though neither association could have been sued for monopolizing the software market and neither had to file a pleading.”
Kohn says he is “hopeful” that the District Court will grant his motion—although that seems quite unlikely. But ultimately, the way the process has played out, it doesn’t matter if the court approves or not. “If my motion is denied, I will appeal the denial, which, according to case law, puts me in a position to argue to the Court of Appeals why the entry of the Final Judgment should be reversed,” Kohn explained.
Perhaps most notably, Kohn says he is not going away, and that he is prepared to fight his case to the Supreme Court, if need be, although the closing panels of his brief note that the clock is ticking—the consent decree now as 23 months, and any court delays raise the possibility that legal delays could run out the clock.
Read the entire brief for yourself here.