updated 05:36 pm EST, Mon January 13, 2014
Likely to file emergency appeal to different judge
The same judge who appointed a personal friend with no experience in antitrust compliance, and who had pre-announced Apple's likely guilt ahead of its trial against the Department of Justice over alleged e-book price fixing, has denied the iPhone maker's request to stay the implementation of its antitrust monitor pending appeal. In her ruling, US District Judge Denise Cote also rebuffed Apple's request to disqualify Michael Bromwich, her appointment to the job.
Cote again did not elaborate on her reasons, but said she would explain her decision in a written ruling shortly. Once issued, Apple will very likely seek an emergency stay from the appeals court, one of its first chances to get its reasoning in front of a different judge. Apple has a long list of complaints about Bromwich specifically, but most center on the fact that he appears to have gone far outside his mandate, appears to have a personal bias against the company, and has engaged in numerous acts of have the company calls "grossly inappropriate behaviour."
Apple lost its initial case against the government in a trial over alleged e-book price fixing last year, and in a controversial and unusual move Judge Cote saddled the company with an antitrust compliance monitor. The DOJ defended both the appointment of a monitor and specifically Bromwich, saying the company had "chosen a campaign of character assassination over a culture of compliance" in attacking Bromwich. The monitor is charging Apple over $1,100 an hour (in addition to a 15 percent "administrative fee" to be paid to his company) and another $1,000-plus per hour for an assistant lawyer with antitrust experience. Outside bodies including the Wall Street Journal have excoriated both Cote and Bromwich for rulings and actions that amount to "judicial overreach."
Apple has objected both to the fees and to the fact that Bromwich attempted to begin what the company calls his "extra-legal roving investigation" immediately, when Judge Cote's original order specified that his work as a compliance monitor was to begin following a submission to the court of Apple's revised antitrust policies -- a filing that hasn't yet occurred. Apple also objected to Bromwich's attempt to interview numerous Apple executives who have no part of the e-book business and no relation to the case, such as Senior VP of Design Sir Jonathan Ive.
After Bromwich himself filed a rebuttal of Apple's charges -- a legally unnecessary move, as the former DOJ Inspector General would already be defended by the DOJ (and presumably the judge that appointed him) -- the company added that the declaration proved Bromwich was engaged in actions that violated the court's rules, wasn't competent for the post, and had a vendetta against the company. As has been the case with Judge Cote, her verbal ruling on Monday did not address any specific charges. Apple will likely use the judge's habit of ignoring specific complaints or Bromwich's violations in its appeal.