By Erin Geiger Smith
When a federal judge told Bob Kohn to whittle a 25-page amicus
brief to just five pages, Kohn came up with an unusual solution.
He submitted a short graphic novel instead.
Kohn is an outspoken critic of litigation by the Justice
Department accusing Apple and book publishers of conspiring to
raise the prices of electronic books. T he department said that
Apple, when it was about to debut its iPad, pushed publishers to
raise e-book prices and to forbid discounting. The move hurt
Amazon, which has been using electronic books as loss leaders to
sell the Kindle e-book reader.
Apple has said the lawsuit is "fundamentally flawed" and
denied being part of any conspiracy. Two publishers are fighting
the lawsuit alongside Apple, while Hachette Book Group,
HarperCollins and Simon & Schuster have agreed to settle.
In a 25-page proposed brief last month, Kohn sought to
persuade U.S. District Judge Denise Cote that the settlement is
not in the public interest. (Apple, represented by O'Melveny &
Myers and Gibson Dunn & Crutcher, has also urged the court not
to finalize the settlement.) On Aug. 29, Cote told Kohn to cut
his brief back to five pages and gave him until Sept. 4 to do
it.
Kohn's new brief plays out in 45 illustrated frames
featuring a male lawyer trying to condense his arguments into
five pages and a conversation with a young woman about what he's
up to. He argues that the Justice Department's actions against
Apple and the publishers are contrary to precedent and the
department's own guidelines because any collusion resulted in
efficiencies in the market.
Kohn was general counsel of software company Borland in the
days when the Justice Department was battling Microsoft over
antitrust. In that case, Kohn said, the department failed to
stop Microsoft from maintaining a monopoly in application
software like word processing and spreadsheets. In the current
case, Kohn said the department has gone after the wrong parties:
It should be going after Amazon for charging below market rates,
he argued.
Kohn said his unusual format is one that is easily
digestible by the public, the group that the court must decide
is or isn't served by the settlement.
Once he came up with the idea, Kohn said he reached out to
his daughter, a PhD student in film studies at Harvard, who
suggested her friend, artist and comparative literature doctoral
student Julia Alekseyeva. Kohn wrote the script, Alekseyeva sent
him some preliminary sketches, and the project was finished in
five days.
Alekseyeva, 23, had no previous knowledge of the case and
said it was a fun diversion from the graphic novel she is
working on -- a historical account of the Soviet Union based on
a memoir by her great-grandmother. She worked associate hours to
complete the task within the court's quick deadline and didn't
sleep for two days, she said.
The court has so far not reached out to Kohn or issued any
order on his unusual filing, and the other parties involved have
been quiet as well. The Justice Department and Apple attorney
Andrew Frackman of O'Melveny declined to comment, as did
HarperCollins counsel Shepard Goldfein of Skadden, Arps, Slate,
Meagher & Flom and Hachette counsel Walter Stuart of Freshfields
Bruckhaus Deringer. Helene Jaffe of Proskauer Rose, who
represents Simon & Schuster, did not respond to a request for
comment.
(Additional reporting by Diane Bartz)
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