Filing late in the day on Wednesday evening, the Department of Justice responded to the latest wave of objections to the proposed ebook pricing settlement with the same disdain they have brought to any dissenting views through the Tunney Act process. Rather than addressing head-on the contention that the government has defined the relevant market too narrowly in looking at ebooks as things unto themselves (separate from ebook readers, and other elements of the book publishing market), the government answered by saying that every opponent of an antitrust action believes they are special. “While ebooks are a relatively new arrival […]
Legal
Macmillan Agrees with Penguin On Lack of Government Analysis; Says “The size of Amazon’s market share is at the center”
The third of the three litigating defendants to file, Macmillan advances one argument similar to Penguin’s: That the government has not provided “a single economic study or analysis showing why its mandated pricing scheme is necessary to undo the effects of the alleged collusion, or why it is in ‘the public interest.” More broadly, “Other than to explain the government’s intention in requiring such substantial limitations on price restrictions, the CIS offers no precedential or evidentiary support for why those limitations would be in the public interest, no analysis of the market effect of such a prohibition and no analysis […]
An Overview of Wednesday’s eBook Filings: Will Judge Cote Care?
Wednesday afternoon brought the expected additional filings with the court regarding the ebook pricing settlement. Two of the litigating defendants, Apple and Penguin, already had the right to be heard in 5 pages or fewer. The Authors Guild, like attorney Bob Kohn, have asked for permission to file additional remarks as a friend of the court and provided their brief on a conditional basis, subject to Judge Denise Cote’s ruling. Apple’s argument is the boldest–that they are being denied due process of law and penalized by having their ebook contracts with the settling publishers (the Settlers) voided and their MFNs […]
Authors Guild Tells the Court DOJ Defined The Market Too Narrowly
Though the Authors Guild did file their opposition to the settlement with the court during the public comment period, they have now asked permission to file another 5 pages with Judge Cote as a friend of the court. Their argument is that the DOJ’s response to the public comments “ignores the far-reaching effects of the proposed judgment” and the Guild address the “true impact” in their brief. Similar to one of the arguments made separately by attorney Bob Kohn, the Authors Guild asserts that Justice defined “the relevant market or markets” far too narrowly. “it deems the impact of the […]
Penguin Argues Justice Provided No Evidence that eBook Prices Rose; Offers Their Own Pre-Agency Analysis
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 Says The eBook Settlement Penalizes Them Prior to A Trial and “Is Fundamentally Unfair”
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 […]