DOJ says it received over 800 comments on ebook pricing case, needs more time to publish them

In response to a letter from attorney Bob Kohn regarding the delayed publication of all the comments received on the proposed ebook pricing settlement, the Department of Justice says it received over 800 comments on the proposed settlement and is “working expeditiously” to make them available to the public by roughly July 20, 2012.

(Side note: That is a LOT of letters. As of mid-June, the DOJ had only received about 150 of them.)

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. That did not hapen. Earlier this week 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), 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.

Today Mark Ryan, an attorney for the Department of Justice, sent a letter to Judge Cote in response to Kohn’s letter. Ryan says it received “more than 800 comments…relating to the proposed consent judgment,” and “as many as half” of those “arrived within a few days or after the comment deadline” of June 25. Ryan argues it would not have been possible for the DOJ to respond to all the comments immediately or to publish them all online immediately because it has to ensure that all of the materials are converted into electronic format and made accessible to the disabled. In addition, Ryan claims that on April 18, the DOJ requested and was granted “additional time to prepare and file our submission.

Ryan says the DOJ will publish the comments and, simultaneously, its response to them roughly two weeks before August 3, the date of the proposed final judgment on the settlement. That would mean the public can expect to see the letters on the DOJ’s website around Friday, July 20. This timetable, Ryan argues, “results in no conceivable harm to Mr. Kohn or any other member of the public, or to any actual party to the proceedings.”

In a response, Kohn says he can find no record of the DOJ’s request to extend the comment period on April 18 and that in fact the DOJ reversed its position in a June letter to the court, when it said the comment period would end on June 25. “The government had an opportunity to seek more time, but it didn’t,” he writes. “It can’t have it both ways: that is, ask the court to cut off the public’s right to submit comments on June 25, and then file and publish the comments at its own convenience on its own schedule.” And if the DOJ finds the posting of the letters to a website onerous, Kohn writes, its complaints should be addressed not to the court or to the public “but to Congress who passed the law.”

In response to the notion that the DOJ’s timetable does not harm the public, Kohn writes, “the government should not be the last to speak about whether the public has been prejudiced by the government’s delay.”

DOJ’s letter to Judge Cote

Bob Kohn’s response

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