Unites States of America v. Apple, Inc. et al

Filing 214

FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to File Amicus Brief. Document filed by Bob Kohn. (Attachments: # 1 Supplement Memorandum in Support of Motion for Amicus, # 2 Exhibit Proposed Amicus Brief)(Brower, Steven) Modified on 4/30/2013 (db).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

__________________________________________

UNITED STATES OF AMERICA
Plaintiff,
v.
APPLE, INC.,
HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS, L.L.C.
VERLAGSGRUPPE GEORG VON
HOLTZBRINK PUBLISHERS, LLC
d/b/a MACMILLAN,
THE PENGUIN GROUP,
A DIVISION OF PEARSON PLC,
PENGUIN GROUP (USA), INC. and
SIMON & SCHUSTER, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.12-CV-2826 (DLC)

MEMORANDOM IN SUPPORT OF MOTION OF AMICUS CURIAE BOB KOHN
TO SUBMIT A 5-PAGE BRIEF AMICUS CURIAE
SOLELY TO REPLY TO GOVERNMENT’S RESPONSE TO PUBLIC COMMENTS
ON THE PROPOSED FINAL JUDGMENT WITH THE PENGUIN DEFENDANTS

INTRODUCTION
By Order dated August 28, 2012 (12-CV-2826 ECF 108), this Court, pursuant to 15
U.S.C. §16(f)(3), granted leave to Bob Kohn to participate as amicus curiae in this action and to
submit a 5-page amicus curiae response to the DOJ’s Tunney Act filings. In addition, by Order
dated January 7, 2013, this Court granted leave file an amicus curiae brief regarding the
Government’s proposed schedule for Tunney Act review of the Government’s proposed Final
Judgment with the Penguin defendants (“Penguin Settlement”).
On February 28, 2013, Kohn submitted comments to the Government regarding the
Penguin Settlement and such comments were filed with the Court on April 5, 2013 (“Kohn
Comments” at http://www.justice.gov/atr/cases/apple/comments1/atc-1000.pdf), together with
the Government’s response to such comments (“Government Response” at ECF #201). Kohn
now requests leave to file an amicus curiae brief for the sole purpose of replying to the
Government Response. Kohn’s proposed 5-page amicus curiae brief is attached to the
accompanying motion. Kohn respectfully submits that the brief amicus curiae would be helpful
to the Court in evaluating the proposed Penguin Settlement, because it replies to important new
statements made by the Government in its response and certain findings by this Court in its
Opinion & Order dated September 5, 2012 (ECF #113).
I. THE TUNNEY ACT SPECIFICALLY EMPOWERS A DISTRICT
COURT TO AUTHORIZE THE APPEARANCE OF AMICUS CURIAE
Section 16(f)(3) of the Tunney Act specifically empowers the Court, in connection with
its public interest determination under Section 16(e), to “authorize full or limited participation in
proceedings before the court by interested persons or agencies, including amicus curiae.” See,
Order, 12-cv-02826-DLC, ECF 108 at 3.

1

II.

AMICUS CURIAE SHOULD BE ALLOWED TO REPLY TO THE
GOVERNMENT’S RESPONSE TO PUBLIC COMMENTS

Participation by amicus curiae should be allowed if participation is not used merely to
repeat arguments and assertions in public comments filed pursuant to 15 U.S.C. §16(b), but
rather to reply to the memoranda filed by the United States in response to the public comments.
United States v. Microsoft Corp., 2002 WL 319366 at 6 (D.C.C. Feb. 28, 2002). In Microsoft,
Judge Colleen Kollar-Kotelly permitted amicus curiae to submit a 25-page memorandum to raise
arguments responsive to the government’s response to the public comments in that case. The
amicus in that case had previously submitted to the DOJ a 93-page comment letter, accompanied
by a separate economic analysis of the proposed judgment in that case. Microsoft at 2.
The district court also permitted the amicus curiae memorandum “to raise new issues and
arguments which were not raised in [its] comments” submitted with the Justice Department. Id.
at 6. In addition, the court permitted amicus curiae to address the court in oral argument during
its Tunney Act hearing, in which amicus curiae was allowed to “use this time to address issues
not previously raised in its comments and/or to emphasize the most significant issues raised in its
comments.” Id.
III. PROPOSED BRIEF AMICUS CURIAE CORRECTS MISLEADING
STATEMENTS OF LAW AND CONTENDS THAT CERTAIN STATEMENTS
IN THE GOVERNMENT’S RESPONSE FURTHER DEMONSTRATES THE
SETTLEMENT IS NOT IN THE PUBLIC INTEREST
The accompanying proposed amicus curiae brief does not repeat the arguments detailed
in Kohn’s Comments. Rather the brief is entirely focused on replying to the Department of
Justice’s response to such comments. Such reply is necessary (a) to correct misleading
statements of law contained in the Government’s response and (b) to show how a new admission

2

in the Government’s Response actually helps demonstrate that the proposed Penguin Settlement
is not in the public interest.
CONCLUSION
To assist the Court in its determination of whether the proposed Penguin Settlement
satisfies the public interest requirements of the Tunney Act, Kohn respectfully requests leave of
Court to file the accompanying amicus curiae brief. Kohn also request permission to present oral
argument at such time and in such manner as the Court may allow.
Dated: April 29, 2013

Respectfully submitted,

_______________________
BOB KOHN
California Bar No. 100793
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

3