Both the American Booksellers Association and the National Association of College Stores, which together represent roughly 4,500 booksellers, expressed their concerns and astonishment over the Department of Justice’s response to 868 comments regarding the consent decree with settling publishers involved in the DoJ’s suit on the agency model. Of those comments more than 90% opposed the settlement, including 200 from bookstores.

“We find it truly astonishing that DoJ has failed to recognize the myriad harmful effects of its proposed remedy,” said ABA CEO Oren Teicher in a flash alert to the organization’s members Monday afternoon. “But we remain hopeful that the court will take steps to fashion a solution that does not punish indie booksellers and other e-book distributors who are working hard to serve consumers by maintaining diversity and vitality in the world of books.” Teicher, who pointed out that e-book prices are in fact lower since the agency model was introduced, went on to say that “the proposed settlement . . . in all likelihood, will create the very conditions likely to foster and strengthen an online retailers monopoly in e-books.”

For NACS, one of the main problems with the proposed settlement is that it is overly broad and could hamper competition in textbook pricing. The DoJ rejected NACS’s concerns regarding e-textbooks and noting that none of the Settling Defendants--Simon & Schuster, Hachette and HarperCollins-- sell e-textbooks and the DoJ complaint already makes it clear that “e-books” do not encompass “academic textbooks.”

NACS attorney Marc Fleischaker of Arent Fox LLP countered, “Factually, the terms ‘academic textbook’ and ‘e-textbook’ are not used consistently, so without an explicit definition in the settlement agreement, interpretation of the document will be difficult and could cause publishers to hesitate to experiment in the higher education marketplace. Are The Odyssey or The Grapes of Wrath academic books when sold for use in a classroom?”

Both NACS and ABA urge the Court to reject the settlement agreement.