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November 16, 2012
US Calls For Dismissal Of Bob Kohn's Appeal In Apple e-Book Case Settlement
The United States has filed its brief with the Second Circuit Court of Appeals opposing the appeal by attorney Bob Kohn in the Apple e-book settlement entered by Judge Cote last September. Kohn had filed a motion to intervene in the case which Judge Cote denied. The appeal ostensibly is on that denial, though Kohn indicated that he intended to use the appeal as a vehicle to attack the settlement on appeal.
The Justice Department argues that the appeal should be dismissed because there is no case or controversy before the Court. Kohn, the Department argues, does not have standing because he is not a party to the settlement nor is he harmed by it. My favorite line in the argument:
But paying lower, rather than higher, prices does not in itself constitute an injury; there is no legally protected interest in paying higher prices.
Other arguments include reversing the order entering the final judgment would not redress Kohn’s alleged harms. His lists of points raised on appeal do not add to his standing before the Court. For what it is worth, Apple filed a motion to revise the caption of the case. It now shows Apple as “defendant-appellee.” Apple states that it is not a party to the settlement and it is not appealing anything. Apple’s brief also states that it takes no position on Kohn’s appeal, noting that the settling publishers also opposed his motion to intervene. His response is due by December 14.
Brief of the United States: Download United_States_of_America_v._Ap_23.
Brief of Apple: Download United_States_of_America_v._Ap_24. [MG]