updated 06:51 pm EST, Thu January 16, 2014
Logic-defying ruling may inadvertently aid Apple's appeal
Following on from an initial ruling on Monday that ignored Apple's objections, US Federal Judge Denise Cote reinterated her denial of Apple's request for either suspension of a court-appointed antitrust monitor during appeal or at least the replacement of former DOJ Inspector General Michael Bromwich as the monitor in a 64-page ruling. "If anything, Apple's reaction to the existence of a monitorship underscores the wisdom of its imposition," she wrote.
The shockingly poor logic of that summary -- and her repeated refusal to consider appointing an alternative monitor who isn't a personal friend to the job -- may actually aid Apple's appeal of her decisions, which the company is expected to file for shortly. She gave the company until Tuesday to file an appeal of her decision to the Second Circuit US Court of Appeals. A lawyer for Apple said it would file such an appeal.
She further defended her choice of monitor against Apple's primary objection that he was expanding his duties far beyond his mandate by seeking interviews with Apple executives and requesting documents that had no connection to any antitrust issues or the e-book side of the business, disrupting the company's operations. "A monitorship would be of little use at all if a monitor were only permitted to receive, review and opine on company-vetted documents," she wrote. "Apple cites to no case holding that a monitor may never conduct interviews and there are many examples to the contrary," ignoring the fact that Apple did not object to interviews generally (and has supplied board members and lawyers for questioning by Bromwich), and that Cote's own original order laid down self-described "narrow guidelines" that Bromwich was supposed to follow.
She also sidestepped another factual allegation from Apple that Bromwich had violated the court's own order by attempting to interview subjects without their attorneys present. She did partially address the matter of Bromwich's excessive fee requirements, saying she saw nothing untoward about his $1100-per-hour costs, the extra "administrative fee" of 15 percent being paid to Bromwich's firm, and the $1025-an-hour salary for Bromwich's assistant, required because Bromwich is unqualified to be an antitrust monitor and requires an assistant with antitrust law experience.
Cote said, however, that she would assign the fee dispute to a different magistrate judge, and also noted that the DOJ and Bromwich had offered to adjust the fee previously, but that Apple hadn't yet responded (presumably because the company was hoping he would be replaced). Her pronouncement about Apple's reaction to the monitor could be interpreted as yet another pre-announcement of bias against Apple, given that she is still in charge of deciding some continuing matters left over from the original case -- another factor that could come into play in Apple's appeal.
A Justice Department spokeswoman said the government was pleased with Cote's decision.