The Department of Justice was supposed to publish all of the letters it has received about the ebook pricing settlement on its website by June 25. Bob Kohn, an attorney and CEO of Royalty Share who previously wrote a legal brief in support of Apple and the publishers (but does not work for any of the parties involved), has sent Denise Cote, the judge presiding over the case, a letter stating that the DOJ’s failure to make the letters available to the public — and to provide its response to those comments — on time violates federal antitrust rules.
The DOJ is suing Apple and five of the big-six publishers for allegedly colluding to set ebook prices. Three of the publishers — HarperCollins, Hachette and Simon & Schuster — have agreed to settle. The proposed final judgment on the settlement is set for August 3. The public had sixty days, ending June 25, to comment on the settlement, and the DOJ received at least 150 letters during that time.
Kohn’s full letter is here (PDF). “The DOJ has told the Court that it has received hundreds of pages of hundreds of comments,” he writes. “The public had a statutory right to see those comments 14 days ago. When a member of the public fails to meet the statutory deadline for submitting comments under the Tunney Act, there are consequences: participation by matter of right becomes participation at the Court’s reasonable discretion. There should be no less serious consequences when the government fails to meet its statutory deadlines.” The court already granted the DOJ a concession by allowing it to post the public comments to its website rather than printing them in the Federal Register.
In addition, Kohn says, the government is over two weeks late in filing its response to the public comments, which it was also supposed to do by June 25. “I respectfully ask the Court to order the DOJ to publish the comments by Friday, July 13 and to publish their response to the comments by July 27 (a full 7 days prior to the date its motion for entry of judgment is due),” Kohn writes. “In addition, the Court should order such other relief as would befit the Justice Department’s flagrant noncompliance with federal law.”
I asked the DOJ for a comment yesterday and will update this post if I hear back.
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