Barnes & Noble, American Booksellers Association to file amicus curae brief in DoJ anti-trust case
July 31, 2012 | 7:03 pm
Well, that didn’t take long. In the wake of the Department of Justice’s response to the hundreds of comments it received regarding its proposed anti-trust settlement with three alleged agency pricing conspirator publishers, PaidContent reports that the American Booksellers Association and Barnes & Noble have sought permission from Judge Denise Cote to file an amicus curae (“friend of the court”) brief in the case. Judge Cote has granted permission to file such a brief by August 15th.
The ABA and B&N discuss the sorts of things they’re likely to say in the 10-page filing (PDF) in which they ask for permission to file the “real” brief, which also represents a sort of first response to the contentions the DoJ made in its own response in which it discussed and dismissed B&N’s claims in its comments.
It mostly amounts to reiterating the same arguments B&N made in its DoJ comments, however: agency pricing itself is not illegal, Amazon’s predatory pricing gave it control of 90% of the e-book market, but agency pricing magically cut that back to 60%. Agency pricing supported diversity and competition, and the DoJ isn’t directly punishing any of the colluders for colluding. It also argues that the DoJ didn’t ever come out and say why dismantling agency pricing is in the public interest in its response, and beats on the drum of 800 posts opposing, only 19 posts supporting the DoJ’s settlement.
All this really isn’t terribly surprising. As the DoJ also pointed out in its response, B&N has a financial stake in the fruits of the alleged collusion. For that matter, do does the ABA. Their business interests so strongly align with the continued practice of agency pricing from all the Big Six publishers that they really don’t have any choice but to fight tooth and nail against the settlement until they’re finally dragged into it kicking and screaming.
And while the settlement will go into effect soon if the judge doesn’t block it, it’s still going to be ten months until we can even begin to find out whether the DoJ’s interpretation of the anti-trust laws will hold up in court.