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The DOJ doesn't have jurisdiction over retail pricing unless it can claim a point of law that supports the restriction. It can veto contracts involving the settlement 3, and the other 2 publishers if they lose the lawsuit, but it can't make Amazon comply... and at this point, Amazon is possibly perfectly willing to forego all ebooks by the Agency 5, at least temporarily, while they hammer out contracts it finds more advantageous. (It may demand lower wholesale rates or extra payments to compensate it for extra data processing, for example.)
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THe DOJ does control the terms of the settlement, however... and it can say, "If the retailers won't agree to disclose the necessary data, you don't have to change the terms of the existing agreements." Amazon would have the choice either to disclose, and have to chance to negotiate agreements allowing them to discount, or continue under the current no-discount arrangements. I think Amazon will likely go with (1), although very reluctantly.(Amazon is pretty anal about discounting sales data).