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

Filing 96

MOTION to File Amicus Brief. Document filed by Bob Kohn.(Brower, Steven)

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

____________________________________

UNITED STATES OF AMERICA
Plaintiff
v.
APPLE, INC., ET AL
Defendants

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

MOTION OF BOB KOHN
FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE
Movant Bob Kohn, through his pro bono counsel, pursuant to 15 U.S.C. Sec. 16(f)(3),
hereby moves for leave to participate as amicus curiae for the sole purpose of replying to (a) the
Department of Justice’s 55-page response to those comments published in the Federal Register
on June 23, 2012 (“DOJ Response”) and subsequent motion for entry of the proposed Final
Judgment filed on August 3, 2012 (“DOJ Motion”) and (b) a few of the arguments presented in
several of the 868 public comments filed during the 60-day comment period.
Bob Kohn also moves, pursuant to 15 U.S.C. §16(f)(3), that the Court order the United
States to file with the Court all documents and other materials collected and/or reviewed by the
United States in connection with its investigation and review of data from Amazon and others in
support of the government’s statement in the DOJ Response, and as alleged in the Complaint (at
¶30), that “Amazon’s e-book distribution business has been consistently profitable, even when
substantially discounting some newly released and bestselling titles.”

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The grounds for this motion are more fully set forth in the accompanying Memorandum
of Points and Authorities. In summary, Movant’s comments would be helpful to the Court in
evaluating the DOJ Responses and DOJ Motion in connection with its public interest
determination in this matter. Rather than repeat arguments made in Movant’s Comments (ATC0143), May 30, 2012), the proposed amicus brief is entirely focused on replying to the DOJ
Response. Specifically, such reply is necessary (a) to correct potentially misleading statements of
law contained in the DOJ Response, (b) to draw attention to law that none of the parties to this
action have addressed, and (c) to show how the DOJ Response actually helped demonstrate the
unreasonableness of the government’s conclusions regarding the proposed Final Judgment.
Although other interested parties may seek to participate as amicus curiae, Movant believes that
he is uniquely suited to assist the Court in connection with certain specific factors underlying the
government’s conclusions about the reasonableness of the proposed Final Judgment.
In addition, as stated in the Memorandum supporting this motion, the DOJ applied the
wrong law of predatory pricing such that the DOJ’s conclusions about the remedy cannot be
reasonable. In the Second Circuit, below marginal cost pricing is presumed illegal. To overcome
the presumption, and to test the reasonableness of the government’s conclusion, the Court must
consider the materials and data reviewed by the DOJ in its stated investigation of Amazon’s
pricing policies.
Movant has approached each of the Defendants in this action and none have expressed
objection to Movant’s participation as amicus curiae. In addition, on July 30, 2012, Movant
approached the DOJ to inquire whether it would so object. The DOJ replied the next day saying,
“Our position is that we are not going to consent to the filing of any amicus briefs.” Given the

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importance of this matter, Movant is hopeful that the DOJ will not wish to object to a strong
voice raising some fundamental concerns.
In preparing the proposed amicus brief, Movant has been mindful of the Individual
Practices in Civil Cases promulgated by this Court on August 23, 2011. In particular, Section
3.B. thereof states that, unless prior permission has been granted, “memoranda of law in support
and opposition to motions are limited to 25 pages.” The length of the attached proposed amicus
curiae brief is 25 pages.
However, Movant seeks permission from the Court to add to the brief an additional
twelve pages, attached as an Appendix to the Memorandum in Support of this Motion. The
arguments set forth in the additional pages also reply to the DOJ Response and, for good reason,
have not heretofore been addressed in Movant’s Comments. These arguments were impossible to
provide during the comment period, because they build directly upon the third party public
comments, the DOJ Response to such comments, and the responsive arguments set forth in the
first 25 pages of the amicus brief. Should the Court grant permission to add such additional
material, Movant would submit a replacement version of the proposed amicus curiae brief that
contains the additional pages, together with a consolidated Table of Contents and Table of
Authorities, updated to reflect the additional material.
WHEREFORE, this motion should be granted and Movant should be authorized to file,
pursuant to 15 U.S.C. §16(f)(3), the proposed brief amicus curiae accompanying this motion
(including the additional pages referenced above), and should be invited to participate in oral
argument at any hearing the Court may conduct to determine whether the proposed Final
Judgment is in the public interest.

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AND WHEREFORE, pursuant to 15 U.S.C. §16(f)(3), that the United States should be
ordered to file with the Court all documents and other materials collected and/or reviewed by the
United States in connection with its investigation and review of data from Amazon and others in
support of the government’s statement in the DOJ Response (at 21-22), and as alleged in the
Complaint (at ¶30), that “Amazon’s e-book distribution business has been consistently
profitable, even when substantially discounting some newly released and bestselling titles.”
A form of proposed Order is attached.
In addition, pursuant to the Section 3.E of the Court’s Individual Practices in Civil Cases,
Movant has submitted to the Court a letter requesting a hearing on Plaintiff’s Motion for Entry of
Final Judgment where amicus curiae may present oral argument in response to the DOJ Motion.
Dated: August 13, 2012

Respectfully submitted,
/s/ Bob Kohn
_______________________
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
California Bar No. 93568
BUCHALTERNEMER
18400 Von Karman Ave., Suite 800
Irvine, California 92612-0514
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Pro Bono Counsel to Bob Kohn
(Pro Hac Vice Pending)
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