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

Filing 93

MEMORANDUM OPINION & ORDER re: #102195 85 MOTION for Leave to File Amici Curiae Responses to DOJ's 7-23-12 Response to Public Comments and 8-3-12 Motion to Enter Proposed Final Judgment filed by American Booksellers Association, Inc., Barnes & Noble, Inc. The August 1, 2012 motion submitted by the ABA and Barnes & Noble for leave to file amici curiae responses to DoJ's Tunney Act filings is granted. The submission from the ABA and Barnes & Noble in support of the August 1 motion will be accepted as amici curiae response to the DoJ's Tunney Act filings. No additional filings from the ABA and Barnes & Noble shall be permitted. (Signed by Judge Denise L. Cote on 8/6/2012) (lmb) Modified on 8/15/2012 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
UNITED STATES OF AMERICA,
:
:
Plaintiff,
:
-v:
:
APPLE, INC., et al.,
:
Defendants.
:
:
----------------------------------------X

12 Civ. 2826 (DLC)
MEMORANDUM OPINION
& ORDER

DENISE COTE, District Judge:
On August 1, 2012, non-parties the American Booksellers
Association (the “ABA”) and Barnes & Noble, Inc. (Barnes &
Noble”) filed a motion for leave to file amici curiae responses
to the U.S. Department of Justice’s Tunney Act filings.

For the

following reasons, the motion is granted.

BACKGROUND
The Government filed this action on April 11, 2012 against
defendants Apple, Inc. (“Apple”); Hachette Book Group, Inc.
(“Hachette”); HarperCollins Publishers L.L.C. (“HarperCollins”);
Verlagsgruppe Georg Von Holtzbrinck GMBH and Holtzbrinck
Publishers, LLC d/b/a MacMillan (collectively, “MacMillan”); The
Penguin Group, a division of Pearson PLC and Penguin Group
(USA), Inc. (collectively, “Penguin”); and Simon & Schuster,
Inc. (“Simon & Schuster”).

That same day, the Government

submitted a proposed Final Judgment as to defendants Hachette,
HarperCollins, and Simon & Schuster, as well as a Competitive
Impact Statement pursuant to Section 2(b) of the Antitrust
Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C.
§§ 16(b)–(h), which invited public comment on the Proposed Final
Judgment.

Pursuant to a Scheduling Order of June 25, the

Government is to submit any motion with respect to the proposed
Final Judgment by August 3.

Any submissions in response to the

motion by a party to the litigation are to be submitted by
August 15, not to exceed five pages, and the Government has
until August 22 to file any reply.
The ABA and Barnes & Noble filed six- and twenty-seven–page
submissions, respectively, during the public comment period.
Those submissions have been provided to and will be considered
by the Court.

The ABA and Barnes & Noble filed their motion for

leave to file amici curiae responses to the U.S. Department of
Justice’s Tunney Act filings on August 1 (the “Amici Curiae
Motion”).

The brief in support of the Amici Curiae Motion

contains five pages of substantive arguments that do not address
the question of whether leave to file amici curiae responses is
appropriate, but rather oppose approval of the proposed Final
Judgment.

On August 3, the Court received a letter from the

Government opposing the Amici Curiae Motion.

2

DISCUSSION
Under Section 16(e) of the Tunney Act, the district court
must determine in advance whether the entry of an antitrust
consent decree is “in the public interest.”

15 U.S.C. § 16(e).

In making this determination, the Court “may . . . authorize
full or limited participation in proceedings before the court by
interested persons or agencies, including appearance amicus
curiae, intervention as a party pursuant to the Federal Rules of
Civil Procedure, . . . or participation in any other manner and
extent which serves the public interest as the court may
determine appropriate.”

15 U.S.C. § 16(f).

In exercising its

discretion under this provision, “the court must consider
whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.”

Fed. R. Civ. P.

24.
In accordance with these principles, the August 1 Motion is
granted.

In light of the existing submissions filed by the ABA

and Barnes & Noble during the public comment period and the
inclusion of arguments opposing approval of the proposed Final
Judgment in their motion papers, however, no further submissions
by the ABA and Barnes & Noble will be permitted.

The ABA and

Barnes & Noble’s brief in support of the August 1 Motion will be
accepted as these parties’ amici curiae response to DOJ’s Tunney
Act submissions.

This restriction is also appropriate given the
3

page limit imposed on responses to any Government motion to be
submitted by the parties to the litigation.

CONCLUSION
The August I, 2012 motion submitted by the ABA and Barnes &
Noble for leave to file amici curiae responses to DoJ's Tunney
Act filings is granted.

The submission from the ABA and Barnes

& Noble in support of the August 1 motion will be accepted as
amici curiae response to the DoJ's Tunney Act filings.

No

additional filings from the ABA and Barnes & Noble shall be
permitted.

SO ORDERED:
Dated:

New York, New York
August 6, 2012

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