Lawyer to DoJ: Where Are the Public Comments?
The June 25 deadline for the Department of Justice to publish the letters it has received regarding the e-book pricing settlement on its website has passed. This week Bob 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 Judge Denise Cote 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," paidContent reported, noting that the proposed final judgment on the settlement is set for August 3.
"The DoJ has told the Court that it has received hundreds of pages of hundreds of comments," wrote Kohn. "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: participation by matter of right becomes participation at the Court's reasonable discretion. There should be no less serious consequences when the government fails to meet its statutory deadlines."
Regarding the DoJ's tardiness in filing its response to the public comments, Kohn wrote: "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."
Mark Ryan, an attorney for the DoJ, responded to Kohn's questions with a letter to the judge in which he said "more than 800 comments... relating to the proposed consent judgment" had been received and "as many as half" of those "arrived within a few days or after the comment deadline" of June 25, making it impossible to publish them online immediately, paidContent wrote. He contended the department is "working expeditiously" to make the comments available sometime around July 20, and the department's responses will be published simultaneously. Ryan claims that on April 18, the DoJ requested and was granted "additional time to prepare and file our submission."
Kohn countered that he can find no record of the DOJ's extension request: "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."