In ebook case, Apple wants a stay, and DOJ argues publishers are conspiring again

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In advance of a Friday afternoon conference where a federal judge, Apple and the DOJ will meet to discuss Apple’s punishment in the ebook pricing case, both sides submitted new filings and Kobo and the Consumer Federation of America jumped in as well.

DOJ says publishers have “banded together once again”

The five settling publishers in the case oppose the DOJ’s proposed injunction for Apple, arguing that it hurts them by requiring them to allow Apple to discount their ebooks for five years, instead of the two years agreed on in the settlements they have already reached.

DOJ attorney Lawrence Buterman responds to this (PDF) by claiming that the injunction “in no way seeks to modify Publisher Defendants’ consent decrees or punish Publisher Defendants” — but it’s clear that the DOJ actually does want repercussions for the publishers beyond the existing settlements. Buterman concludes in his letter:

“A necessary component of this Court’s decision finding Apple liable for horizontal price-fixing is that the publishers themselves were engaged in a horizontal price-fixing conspiracy…[There] is reason to believe the Publisher Defendants may be positioning themselves to pick things back up where they left off as soon as their two-year clocks run. Indeed, the very fact that the Publisher Defendants have banded together once again, this time to jointly oppose two provisions in the Proposed Final Judgment that they believe could result in lower ebook prices for consumers, only highlights why it is necessary to ensure that Apple (and hopefully other retailers) can discount ebooks and compete on retail price for as long as possible.”

Apple says Google and Amazon witnesses weren’t credible

Judge Denise Cote, who is overseeing the case, had asked Apple for a list of evidence that it believes was “improperly admitted, excluded, or disregarded” before or during the trial. Apple submitted that list (PDF); most of the items on it involve testimony that was excluded or disregarded. Apple also says that the court “disregarded serious credibility issues with the Google and Amazon witnesses” and argues that more evidence on Amazon’s internal business workings was needed — including “evidence of Amazon’s pricing algorithms.”

Big surprise: Apple wants a stay; the DOJ doesn’t

Apple requested a stay (PDF) on all court proceedings until it appeals the court’s finding last month that it was guilty of conspiring with book publishers to set ebook prices. For that appeal, it proposed a jury trial over a year from now, in October 2014. The DOJ had proposed that this trial take place in April 2014.

The DOJ, not surprisingly, disagrees (PDF) with the stay.

Kobo and the Consumer Federation of America jump in

Ebook company Kobo and Washington, D.C.-based lobbying firm Consumer Federation of America both requested permission to file amicus, or friend-of-the-court, briefs in support of the government. The Consumer Federation of America had previously weighed in on the case by using some very suspect math to claim that agency pricing cost consumers $200 million a year.

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