With Over 800 Comments, Justice Plans to Post and Reply In About A Week

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As a follow-up to our Monday story wondering when the Department of Justice will publish the public comments on the proposed ebook pricing settlement, along with their replies, the Antitrust Division's Mark Ryan wrote to Judge Cote yesterday in answer to Bob Kohn's complaint. Notably, Ryan says DOJ received over 800 comments, "as many as half" of which "arrived within a few days of or after the comment deadline." Ryan tells the Judge the department is "working expeditiously" to publish the comments and their replies, and without giving a firm deadline indicates they intend to do so "approximately two weeks" prior to the August 3 hearing date. (That would be roughly July 20, which is the publication date for the DOJ replies that Kohn asked the judge to order.)

Justice argues their "timetable is consistent with the purposes of the Tunney Act" though Kohn continues to point out in a reply "that the DOJ's conduct continues to be in violation of the plain language" of the Act. Curiously, Ryan asserts in his letter that Justice told Judge Cote in an April 18 conference "that it would need a minimum of one month following the end of the comment period to get its submission (including the comments) compiled and filed with the Court" and the Judge agreed, though we could not find an order in the court docket. That would mean that, before postponing the hearing by a week, the Judge agreed to let DOJ publish a maximum of two days before the scheduled hearing.

In any event, now we know approximately when to expect publication from Justice, and Kohn has told the Judge he expects to "request leave from the Court to file a brief amicus curiae" replying to Justice's comments after they are issued. For now, Kohn tells us, "I am satisfied that the Justice Department has now agreed to publish the public comments by July 20, which is consistent with what I asked for in my original letter to Judge Cote.... All I hope to accomplish here is to make sure the Justice Department remains accountable to the public they are supposed to be protecting."

As a reminder, you can follow all the reports on the case via the special "Agency Lawsuits" section on the Publishers Lunch Deluxe newsblog at PublishersMarketplace, where we have also posted a handy Agency Lawsuit Index of major stories and legal filings.