Antitrust Law Daily Wrap Up, ANTITRUST NEWS—U.S. Seeks Dismissal of Would-Be Intervenor’s Appeal in E-Book Pricing Case, (Nov 14, 2012)
Organizations Mentioned:U.S. Department of Justice
By William Zale, J.D.
In a Justice Department action against Apple and five publishers for allegedly conspiring to fix prices for electronic books or “e-books,” the appeal of would-be amicus intervenor Bob Kohn should be dismissed, according to a brief filed by the Department of Justice Antitrust Division in the U.S. Court of Appeals for the Second Circuit on November 13 in Bob Kohn v. U.S. v. Apple, No. 12-4017.
The federal district court in New York City denied Kohn’s motion to intervene after he submitted an amicus filing in comic form and a 55-page Tunney Act comment regarding the final judgment in the case. The district court’s opinion addressed, and rejected, Kohn’s arguments that the government should not be seeking to enjoin the challenged conduct because any price fixing by the defendants was a legally justified response to allegedly predatory pricing at retail by non-party Amazon.com, and because any increase in the retail price of e-books resulting from such price fixing was beneficial to consumers.
The appellate court lacks jurisdiction to hear Kohn’s appeal because it presents no case or controversy, according to the Antitrust Division’s brief. Kohn’s conjecture that low prices will form part of a successful predatory strategy by Amazon, leading ultimately to lessened competition and higher market prices, does not meet the requirement of injury in fact because it is speculative and because it would not in any event constitute particularized injury to Kohn, the Antitrust Division maintains.
David Seidman, U.S. Department of Justice Antitrust Division.
News: Antitrust