An Interview With David Evans, ABA’s New General Counsel

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Earlier this year, the American Booksellers Association welcomed David H. Evans, a partner at the law firm Kelley Drye, as the organization’s new legal counsel, as approved by ABA’s Board of Directors in September. ABA’s longtime general counsel, Deanne Ottaviano, resigned this summer to become in-house counsel to the American Psychological Association.

Photo of David Evans, ABA's new general counsel

Evans’ practice focuses on antitrust and competition law and includes mergers and acquisitions, civil litigation, government investigations, and counseling. In addition to his work with the firm, Evans currently serves as the vice chair of the Content Committee and the Distribution and Financing Committee for the American Bar Association Section of Antitrust Law; he is also a former council member for the group and chaired its Computer and Internet Committee for nine years.

Evans earned his doctor of law degree from Northwestern University School of Law in 1995 and is the author of Electronic Commerce: Antitrust and Consumer Protection in the Information Age (Monograph 26), published in 2011 by the American Bar Association Section of Antitrust Law.

Here, Evans discusses the roles he will take on as general counsel for ABA and his thoughts on the current state of antitrust legislation enforcement.

Bookselling This Week: Please share a bit about your work in law and how it applies to your role as general counsel for the American Booksellers Association.

David Evans: I serve as the outside general counsel to several entities, including Team Rubicon Global, a veterans and disaster relief charity. I do a lot of general corporate work for these entities, including reviewing contracts, intellectual property licensing, formation and governance issues, and co-promotional and development agreements. My firm and I are ready to help ABA on any number of matters.

Most of my other work is in the area of antitrust, particularly high tech antitrust. One of the big issues facing independent booksellers is how to deal with the massive growth in online shopping. How can we, as a group of independent booksellers on whom the publishing industry disproportionately relies for the discovery of its books and authors, stand up to threats like Amazon and bad court decisions like the Second Circuit’s decision in the Apple e-books case and remain on the right side of the law? How can we be effective advocates for ourselves and our value in the market in an area of the law and economics that is changing quickly and is not susceptible to easy solutions?

BTW: What are some of the key roles you will take on as general counsel for ABA?

DE: Hopefully, trusted advisor. The more a lawyer knows about an industry and an organization, the better the advice will be. It’s not enough for an outside general counsel to know the rules; they have to know the business so they can help the organization achieve its goals. And a lot of that is just listening to the Board, members, and staff.

BTW: What is your take on the current standards for enforcing antitrust laws?

DE: President Reagan ground antitrust enforcement to a halt. He and his successors also appointed a large number of pro big business, Chicago School judges who have, over the course of the last few decades, severely curtailed what constitutes an antitrust violation. While it upticks periodically, enforcement remains a shell of its former self. From an enforcement perspective, it is very difficult in this environment to “reinvigorate” the antitrust laws. The case law simply isn’t there anymore. Having said that, enforcers have a great deal of leeway in determining what activities to investigate. While court cases may remain rare, a reinvigorated agency could bring about some meaningful changes to at least the way some commercial activities are viewed. It is in these investigations that ABA’s voice will be most meaningful and effective.

BTW: Looking back to the standards that once guided the enforcement of antitrust laws compared to how these laws are addressed today, do you expect to see any changes in the enforcement of antitrust laws in the future?

DE: Classic orthodoxy on antitrust is essentially to trust the markets implicitly and do no harm. It allows most mergers to go through and finds only the most egregious conduct troublesome enough to challenge. Of course, President-elect Trump is not a classic Republican. His appeal has been to the working classes left behind in the economic expansions of the last 30 years. Indeed, that appeal appears to parallel the appeal Teddy Roosevelt had to the same classes some hundred or so years ago, when income and wealth were similarly concentrated in the highest social classes. It would be entirely consistent for Mr. Trump to go after concentrated industries with the same vigor as Mr. Roosevelt.

The proof will be in the pudding. More vigorous enforcement will require larger budgets. Getting those dollars may be difficult. One will also want to look at whom the president appoints to lead the agencies. Are they long-term private bar attorneys, or more radical academics? Do they accept Chicago School precepts, or are they willing to look deeper into deals, activities, and markets for harms that might not be recognized as such by a disciple of the Chicago School? Are they willing to advocate for change in how much antitrust should defer to the market?

BTW: In 2012, the Department of Justice and 33 states brought an antitrust suit against Apple and five publishers, alleging they conspired to raise, fix, and stabilize the retail price for newly released and bestselling trade e-books. The publishers settled without admitting wrongdoing; Apple went to trial in 2013 and was found liable for violating antitrust laws. Do you foresee a long-lasting impact from this case in terms of antitrust legislation?

DE: That decision was terrible. The court identified what it perceived to be an increase in the price of e-books and backed into a price fixing conspiracy. Books, like any other form of entertainment, are susceptible to windowing, where consumers who value the book differently buy at different times and prices. By selling all e-books at one price and at one time, Amazon effectively eliminated the ability of publishers to window and maximize profits, profits that support the development of new books and authors. Some folks who would have paid more for books they valued a lot paid less. Some who would have wanted to pay less for a book ended up paying more. As ABA pointed out in its amicus brief to the Supreme Court, average book prices actually went down after the publishers moved to a consignment model, suggesting that their distribution model was actually the more efficient one. The court summarily condemned the publishers’ actions without evaluating any of the reasons why the publishers would want their distributors to “window” their works, and no one mentioned Amazon’s free riding off the independents’ marketing and development efforts, efforts which play disproportionately significant roles in creating demand for new books and authors.

This decision will chill not only efforts by the publishers to accomplish change as a group, but will also chill their individual, unilateral behavior. The court basically backed into a price fixing conspiracy because prices went up. Any activity that could result in an increase in price, even the restoration of allocatively efficient windowing, will be looked at skeptically. I think this concern will persist. One of my goals as an advocate for ABA is to get folks to back away from this decision.

BTW: Why is the business of independent bookselling of interest to you?

DE: I love independent bookstores, walking through them, talking with folks who love books. I also love discovering a new treasured book I hadn’t heard of. I like the passion and the discovery. Indie bookstores are great places.

I also think the likes of Amazon, the big box stores, and ultimately the antitrust agencies have done independents a disservice with their cult-like affinity of and deference to the disruptive effect of e-commerce. Lower prices don’t necessarily mean more competition. In the case of the independents, it means more inefficient free riding. I want to change the attitude.

BTW: Do you have a local bookstore you often shop at? If you were heading to a deserted island, which three books would you pick up to take with you?

DE: Growing up, it was The Book Stall at Chestnut Court [in Winnetka, Illinois]. My mom would take my little brother and me there a couple times a month just to wander around, look at, and pick out books. Now that I’m living 600 miles away, it’s Politics and Prose in Washington, D.C. I also try to stop in a local independent bookstore whenever I travel. I was recently at The King’s English Bookshop in Salt Lake City and saw Bill Bryson’s The Road to Little Dribbling. I’d read one, and then the rest, of his books about 10 years ago, but lost track of him. I have little impulse control, so that just set me off. I think I ended up buying 10 or 11 books, much to the joy of United Airlines and my chiropractor. 

As for the deserted island: a great piece of fiction with complex characters and plots, like Hamlet; something distracting and breezy, like The Road to Little Dribbling; and something thought-provoking and nonfiction, like Capitalism, Socialism and Democracy. If I were practical and was going to spend a long time on that island, I’d probably want a reference book, like a guide to how not to kill yourself by eating poisonous plants, how to set your own broken leg with a smile, or how to use coconuts to build a shortwave radio for the purposes of attracting a rescue ship. Not sure which of the three I’d give up for that, though.