July 13, 2012

In its case against publishers for violating antitrust law, DOJ charged with “flagrant” violation of … antitrust law


Everyone seems to agree: The Justice Department‘s lawsuit against the publishing industry and Apple for antitrust infractions has violated the laws of logic. Now, it seems, it has also violated … antitrust laws.

As readers may recall, the public had until June 25th to comment via a letter to the DOJ, which in turn was supposed to make public those letters and its response to them. A flood of letters from every area of the business came in — from chain retailers, from indie booksellers and publishers, from authors and agents. (Some — such as the one from Barnes & Noble written by attorney David Boies, made mincemeat of the government’s case.)

But the 25th has come and gone and now, according to a report by Laura Hazard Owen for paidContent, Bob Kohn, an attorney who filed a brief in support of Apple and the publishers (but doesn’t work for any of them) has written to the judge in the case, Denise Cote, “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.”

In his letter (PDF), Kohn tells the judge,

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 … There should be no less serious consequences when the government fails to meet its statutory deadlines.

Then there’s the fact that the DOJ hasn’t posted its response to those letters, either — which, as Owen points out, it was also supposed to do by the 25th. Writes Kohn,

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). In addition, the Court should order such other relief as would befit the Justice Department’s flagrant noncompliance with federal law.

In response, DOJ attorney Mark Ryan tells Owen — in a follow-up paidContent report — that he sent a letter to Judge Cote (PDF) saying the DOJ got over 800 letters, and “as many as half … arrived within a few days or after the comment deadline.” Reports Owen:

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.”

Owen reports Kohn wasted no time in writing another letter (PDF) to the judge, observing that there is no record of the DOJ’s supposed request for an extension. Writes Kohn, “The government had an opportunity to seek more time, but it didn’t. 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.”


Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House.