United States of America v. Apple, Inc.

Filing 59

OPPOSITION TO MOTION to file oversized relief [55], on behalf of Appellant Bob Kohn, FILED. Service date 12/06/2012 by CM/ECF. [788797][59] [12-4017]--[Edited 12/07/2012 by AC]

12-4017
BOB KOHN,
Appellant
v.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
(caption continued on next page)
KOHN’S RESPONSE REQUESTING DENIAL
OF UNITED STATES’S MOTION TO FILE AN OVERSIZED BRIEF
AND
KOHN’S MOTION TO STRIKE UNITED STATES’S REPLY BRIEF
AS UNTIMELY FILED

STEVEN BROWER
BUCHALTER NEMER
18400 VON KARMAN AVE., SUITE 800
IRVINE, CALIFORNIA 92612-0514
[phone]
[e-mail]
PRO BONO ATTORNEYS FOR APPELLANT

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BOB KOHN
140 E. 28TH ST.
NEW YORK, NY 10016
[phone]
[e-mail]

v.
VERLAGSGRUPPE GEORG VON HOLTZBRINK GMBH, HOLTZBRINK
PUBLISHERS, LLC, DBA MACMILLAN, THE PENGUIN GROUP, A DIVISION OF
PEARSON PLC, PENGUIN GROUP (USA), INC. HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS, L.L.C., SIMON & SCHUSTER, INC.,
Defendants-Appellees,
APPLE, INC.,
Defendant.

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
I.

THE GOVERNMENT’S MOTION FOR LEAVE TO FILE AN
OVERSIZED REPLY SHOULD BE DENIED ..............................................2

II. THE GOVERNMENT’S REPLY BRIEF SHOULD BE STRIKEN .............3
III. THE GOVERNMENT’S REQUEST FOR AN OVERSIZED BRIEF
ILLUSTRATES KOHN’S POINT: THE ISSUE RAISED BY THE
GOVERNMENT’S MOTION TO DISMISS KOHN’S APPEAL IS
PROPERLY REVIEWED AFTER FULL BRIEFING ON THE MERITS
OF KOHN’S APPEAL ....................................................................................3
CERTIFICATE OF SERVICE ..................................................................................6

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INTRODUCTION
Appellant Bob Kohn (“Kohn”) is seeking to intervene in the Tunney Act
proceeding below for the sole purpose of appealing the District Court’s order
entering the Final Judgment. 1 But first, Kohn must appeal the District Court’s
order denying Kohn’s motion for leave to intervene for the purpose of appeal. 2
On November 13, 2012, the Government filed a Motion to Dismiss Kohn’s
appeal of both such orders. 3 On November 26, 2012, Kohn filed a timely response
to the Government’s Motion to Dismiss. 4 On December 3, 2012, the Government
filed a Reply in the form of an oversized brief, which exceeded the page limit set
forth in FRAP 27 by 50 percent—without first without first having sought leave of
this Court in accordance with FRAP 27 and Local Rule 27.1. 5
On December 4, 2012, this Court served the Government with a Notice of
Defective Filing, pointing out the above defects and giving the Government until
December 6, 2012 to cure them. 6 The Court’s notice clearly states:

1

United States v. Apple, Inc. et. al., No. 1:12-cv-2826-DLC, Docket (S.D.N.Y.) (hereinafter,
“12-02826-ECF”) No. 113 (Entry Order, 9/5/12).
2
12-02826-ECF No. 136 (Denial Order, 10/2/12).
3
Kohn v. United States, No. 1:12-cv-4017, Docket (Second Circuit) (hereinafter, “12-4017ECF”) No. 34 (Motion to Dismiss, 11/13/12).
4
12-4017-ECF No. 45 (Response, 11/26/12).
5
12-4017-ECF No. 51 (Defective Reply, 12/3/12).
6
12-4017-ECF No. 54 (Notice of Defective Filing, 12/4/12).
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Please cure the defect(s) and resubmit the document, with the required
copies if necessary, no later than 12/06/2012. The resubmitted documents, if
compliant with FRAP and the Local Rules, will be deemed timely filed.
On December 5, 2012, the Government chose to ignore the Court’s courtesy.
Instead of filing a Reply brief in compliance with the page limit required by FRAP
27, it chose to file its Motion for Leave to File an Oversized Reply. 7 The filing of
such motion did not cure the defect in the Reply brief. 8
ARGUMENT
I.

THE GOVERNMENT’S MOTION FOR LEAVE TO FILE AN
OVERSIZED REPLY SHOULD BE DENIED
The Government did not cure the defect by December 6, 2012 as this Court

ordered it to do. Rather, the Government again filed an oversized brief, but added
a belated request for leave to file such an oversized brief. That motion should be
denied as untimely. If the Government wished to file an oversized brief, the proper
course was to motion for leave to do so before its reply was first due rather than
unilaterally filing an oversized brief. This Court’s order required the Government
to correct the defective brief; it did not invite the Government to make an out-oftime request for leave. Accordingly, the Government’s motion should be denied.

7

12-4017-ECF No. 55 (Motion for Oversized Reply, 12/5/12) (the T-1080 form of which
indicates opposing counsel’s opposition and intention to file a Response).
8
12-4017-ECF No. 57 (Cured Defective Reply, 12/6/12) purports to cure the Government’s
failure to file a motion for leave to file an oversized brief, but did not cure the defective Reply
itself.
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II.

THE GOVERNMENT’S REPLY BRIEF SHOULD BE STRIKEN
The Government had an opportunity to cure its defective Reply by re-filing a

version that fell within the rule’s 10-page limit by December 6, 2012. The Notice
of Defective Filing made it clear to the Government what the consequences would
be for failing to cure the defects by the deadline established:
Failure to cure the defect(s) by the date set forth above will result in the
document being stricken.
In the event the Government shall not have filed a cured Reply brief that
complies with the page limit requirement by the deadline, and the Court does not
strike the Government’s defective and uncured Reply on its own accord, Kohn
hereby moves to strike the Government’s Reply brief.
III.

THE GOVERNMENT’S REQUEST FOR AN OVERSIZED BRIEF
ILLUSTRATES KOHN’S POINT: THE ISSUES RAISED BY THE
GOVERNMENT’S MOTION TO DISMISS KOHN’S APPEAL IS
PROPERLY REVIEWED AFTER FULL BRIEFING ON THE
MERITS OF KOHN’S APPEAL
While it may appear to have been easy for the Government to cure its

defective filing by reducing the size of its Reply brief by 5 pages, the fact that the
Government chose instead to attempt to file an oversized brief suggests the issues
raised by the Government’s Motion to Dismiss are far more appropriately reviewed
by a panel upon a full briefing by the parties to decide the merits of Kohn’s appeal.

3

As Kohn stated in his Response, the Government’s Motion to Dismiss
improperly seeks to make Kohn litigate the important issues of his standing to
appeal the Final Judgment on an expedited basis before considering the merits of
the District Court’s order denying his intervention—the very decision from which
Kohn noticed an appeal—and which Kohn has unquestionable standing to appeal.
Kohn urges the utmost judicial consideration of the factual allegations
supporting his standing to appeal the Final Judgment. The standing issue should
be decided with the full record before the Court. Kohn respectfully requests that
the Court merely do what it has done in many other cases involving a denial of
leave to intervene, whereas the Government is asking this Court to do something
unprecedented. Accordingly, this Court should reject the Government’s attempt to
resolve these important issues on an expedited basis prior to a full merits briefing
and disposition by a merits panel.

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DATED: December 6, 2012

Respectfully submitted,

_______________________
BOB KOHN
140 E. 28th St.
New York, NY 10016
Tel. [phone]
Fax. [phone]
eMail: [e-mail]
/s/ Steven Brower
By: _______________________
STEVEN BROWER [PRO HAC]
California Bar No. 93568
BUCHALTER NEMER
18400 Von Karman Ave., Suite 800
Irvine, California 92612-0514
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Pro Bono Counsel to Bob Kohn

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of December, 2012, a true and
correct copy of the foregoing Appellant’s Response Brief was served on all
counsel of record in this appeal via CM/ECF pursuant to Local Rule 25.1 (h)(1) &
(2).
/s/ Steven Brower
STEVEN BROWER [PRO HAC]
California Bar No. 93568
BUCHALTER NEMER
18400 Von Karman Ave., Suite 800
Irvine, California 92612-0514
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Pro Bono Counsel to Appellant Bob Kohn

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