The American Booksellers Association and Barnes & Noble say the Department of Justice’s proposed settlement with three book publishers is so inaccurate and harmful to booksellers that they are seeking permission to intervene in the case. They have asked the court for permission to file a “friend of the court” brief, a legal tactic to gain publicity and possibly shape the outcome of the case, and presiding Judge Denise L. Cote has said they may do so by August 15.
“Giving customers the widest choices at the fairest prices is at the heart of the agency model, and we believe this model should remain intact,” Barnes & Noble general counsel Eugene DeFelice said in a statement. “We want to help the Court fully understand the significant consequences of any action that would erode such a pro-competition, pro-consumer model, and that is the purpose of our filing.”
“ABA and Barnes & Noble are well-positioned to highlight the anti-consumer, anticompetitive, and anti-business effects that the Proposed Final Judgment is likely to cause,” the companies write in their filing, adding, “This Court should not accept the opinion of DOJ and 19 entities as representing ‘the public interest’ as against nearly 800 commenters who opposed the Proposed Final Judgment – specially without hearing from ABA, which is comprised of 1,600 independent booksellers, and Barnes & Noble, which is the world’s largest bookseller.”
The companies also note that “if the Court were not to permit ABA and Barnes & Noble to serve as amici in this matter, it is likely that DOJ’s numerous arguments in that filing that are specifically directed against Barnes & Noble and ABA, complete with their factual inaccuracies, would go unrebutted by any party currently before the Court.”
The court has granted the ABA and Barnes & Noble permission to file a 10-page brief by August 15, 2012.
Amicus briefs are common in high-profile lawsuits, and the lawsuit against Apple and book publishers is garnering particular attention. As noted above, the Department of Justice received 868 public comments about its proposed settlement with three of the book publishers, Hachette, HarperCollins and Simon & Schuster (Apple, Penguin and Macmillan will fight the case in court). Attorney and RoyaltyShare CEO Bob Kohn, who has been one of the most outspoken legal critics of the DOJ in the case, also plans to file an amicus brief within the next few weeks.