February 6, 2014

Appeals court attempts to sort out Apple and the DoJ’s mess


Songquan Deng / Shutterstock

Songquan Deng / Shutterstock

Over the past several months, Apple has made its displeasure with Michael Bromwich, the meddling lawyer in charge of overseeing the company’s compliance with antitrust law after the company was found guilty of conspiring to raise the price of ebooks by Judge Denise Cote, abundantly clear. They’ve whined incessantly about Bromwich’s high fees, his insistence on meeting with people who have little involvement with ebooks (like Apple boardmember Al Gore), and his close, possibly unethical, relationship with his “old friend” Judge Cote. They’ve requested that Cote remove Bromwich—that didn’t work (big shock, I know). And, on Tuesday, they argued before a New York appeals court that Bromwich has too much power and should be removed immediately.

In the hearing, Apple reiterated its annoyance with Bromwich, per the Wall Street Journal:

In Tuesday’s hearing in the U.S. Court of Appeals for the Second Circuit, Apple asked the court to keep Mr. Bromwich, a former Justice Department inspector general, at bay while it pursues its appeal of the e-books ruling. Mr. Bromwich’s methods are time-consuming, expensive and seemingly without bounds, Apple lawyer Theodore Boutrous Jr. said. If the monitor’s activities are found improper by the federal appeals court later, Apple will have spent time and money it can’t get back, he said.

According to the Journal, the judges were “unmoved,” arguing that if Apple didn’t want to deal with a monitor they shouldn’t have, you know, violated antitrust law in the first place:

Judge Gerard Lynch was unmoved. If Apple’s executives had “spent some of their very valuable time keeping the company from violating antitrust laws, perhaps they wouldn’t be in this position,” he said…. As more than one of the three judges pointed out, losing money isn’t an irreparable harm—particularly at one of the richest companies in the world.

That said, Fortune‘s Philip Elmer-Dewitt wrote that the judges “were clearly troubled by the language of a Judge Cote ruling that seemed to give Bromwich the power to ask for “any” document and interview “any” Apple executive he saw fit.” Elmer-Dewitt also noted that the judges appeared skeptical as to whether or not Bromwich’s powers were “adequately restricted” and that one asked Apple whether they would object if the court “granted partial stay that allowed Bromwich to proceed, but under new rules,” which offers a possible way forward.

All told, it looks as though the hearing was a respite, however brief, from the acrimonious and unproductive name-calling that has characterized most of Apple and Cote’s exchanges—the appeals court, as Teleread‘s Chris Meadows wrote yesterday, seems “skeptical all around, which is pretty much the function of appeals courts.” A decision is expected soon.


Alex Shephard is the director of digital media for Melville House, and a former bookseller.