Agency Model Comment Period Ends June 25

Booksellers urged to make their views known

As of Thursday, May 24, booksellers have 32 days to submit a letter to the Department of Justice (DOJ) expressing their opinions about the proposed settlement with three of the five publishers involved in DOJ’s civil suit regarding the agency model.

That settlement must be approved by the court, but, before that can happen, the Tunney Act requires DOJ to accept comments from the public, to publish the comments, and to submit a written summary of the comments to the federal court charged with considering approval. A federal judge will then determine whether the remedy being proposed is “in the public interest.” (ABA CEO Oren Teicher recently e-mailed member booksellers about the opportunity for public comments.)

Teicher noted to Bookselling This Week that a number of booksellers had shared with ABA copies of the letters that they had submitted to the Department of Justice (DOJ).

“These letters are extremely important communications from business owners directly affected by the proposed settlement, and they offer a compelling argument as to exactly why DOJ’s actions in this matter are so ill-advised,” said Teicher. “To the booksellers who have already written, we extend many thanks. And to all the booksellers who have not yet written, I strongly urge you to make your views known. The provisions of the Tunney Act allow us to communicate directly to the court and to share our belief that the agency model has helped make the market for e-books more competitive and more diverse. The end of the agency model and the remedy proposed by the Department of Justice is almost certain to return us to a market controlled by one retailer, and there has never been an example where that is good for either consumers or an industry. This is our moment to speak out, and it’s imperative that we do so.”

Booksellers’ comments should go to:

John Read
Chief, Litigation III Section
Antitrust Division
U.S. Department of Justice
450 5th Street, NW, Suite 4000
Washington, DC 20530

It would be helpful if booksellers would send a copy of those comments to ABA Content Officer Dan Cullen so that ABA can also track what is being said about the proposed consent decree.

The deadline for submitting comments is Monday, June 25.

On April 11, the Department of Justice filed a civil suit against Apple and five major publishers with agency model pricing for e-books. In announcing the civil suit, DOJ also announced that Simon & Schuster, HarperCollins, and Hachette had settled with the government. While denying that they had violated antitrust laws and while defending the agency model, the three publishers agreed that they would no longer employ the agency model for e-books for two years. Apple, Macmillan, and Penguin have stated that they intend to vigorously fight the civil suit.

Federal legislation —  specifically, the Antitrust Penalties and Procedures Act (often referred to as the “Tunney Act,” after the law’s sponsor, former California Senator John Tunney) — provides a crucial opportunity for booksellers to make their views known to the federal court regarding the proposed settlement.