DOJ

Penguin has found Tunney Act grounds of its own to object to the ebook settlement pending with three other publishers: “Here it is: The Emperor has no clothes.” They reason that the core of the government’s case–and the focus of their proposed remedies–is that the agency model caused ebook prices to rise. “Yet the Government has offered no empirical proof to clothe this claim. Rather it has represented to this Court and the public, pursuant to their Tunney Act obligations to disclose ‘determinative documents,’ that there are none, not even pricing studies.” If there are, and if the government has a […]

Apple argues to Judge Denise Cote within the mandated five-page limit that the proposed ebook pricing settlement denies them due process, since they are going to trial on the charges–but the settlement “seeks to terminate and rewrite Apple’s bargained for contracts, before a single document has been introduced into evidence, before any witness has testified, and before the Court has resolved the disputed facts.” They add that: “The Court’s decision would be irreversible. Nullifying a non-settling defendant’s negotiated contract rights by another’s settlement is fundamentally unfair, unlawful, and unprecedented. The Government does not cite a single case in which such […]

Attorney and entrepreneur Bob Kohn continues to aggressively challenge the Department of Justice’s ebook price-fixing case, asking Judge Denise Cote in a series of filings Monday for permission to file an amicus curiae brief of 25 pages (plus an appendix of 12 additional pages), in specific reply to the DOJ’s responses to the public comments. Kohn adds to the calls from other parties for the Judge to hold a hearing before ruling, arguing that to determine if the settlement “is in the public interest, it would be perverse if this decision were made without a public hearing.” He also asks […]

The trickle of insights into Judge Denise Cote’s impatience with all parties in the ebook pricing settlement continues, with a brief order from Tuesday. She was answering Apple’s request to file 10 pages of additional “views” by August 15 instead of staying within the clear 5-page limit Judge Cote already specified (denied), as well as their request for a hearing on the settlement. As we suggested yesterday, anyone aspiring to file additional remarks should take the seriousness of the Judge’s 5-page limit to heart. As also noted previously, it is at the Judge’s discretion whether or not to hold a […]

On Monday, Judge Denise Cote agreed to the joint request by the ABA and Barnes & Noble to file a friend of the court brief regarding the ebook pricing settlement. But, since the motion from the booksellers itself already “contains five pages of substantive arguments,” and Judge Cote has already set a strict five-page limit on the parties to the ligitation for any responses to the government’s filings, she will not accept any additional material from the ABA and BN. In other words, the arguments they made in asking to file a new brief have been accepted–as the brief itself. […]

As expected, on Friday the Department of Justice moved for entry of the proposed final judgment in the settlement with Hachette Book Group, HarperCollins, and Simon & Schuster, “without further hearing.” The government reiterated its belief “that the proposed Final Judgment is an appropriate remedy to the harm alleged in the Complaint with respect to Settling Defendants and is within the reaches of the public interest.” It should be simple, according to the DOJ: “The proposed Final Judgment resolves the claims against Settling Defendants and there is nothing further for the Court to adjudicate with respect to them.” They even […]