Judge Cote denies Apple request for stay and removal of Bromwich as monitor
January 14, 2014 | 10:17 am
Well, that went about as expected.
Judge Cote made her ruling yesterday turning down Apple’s request for a stay of, and preferably the dismissal of, its court-appointed anti-trust monitor, Michael Bromwich. She hasn’t issued her opinion yet; I’ll keep checking throughout the day to see when it appears and update the story accordingly. [Update: Rather than update this post, I wrote a whole new one about it.] Reuters has a fairly sparse writeup, but Andrew Albanese at Publishers Weekly comes through with considerably more detail.
The judge essentially demolished Apple’s arguments, noting that Bromwich’s actions were indeed in keeping with the his mandate to monitor, which Apple’s attorneys helped write and approved, and that Apple’s attorneys have no say in how Bromwich carries out his duties. (Note that the final order (PDF) inclusive of the agreed-upon terms specifically says (on page 13) Bromwich can interview “any Apple personnel […] without restraint or interference by Apple”. Not “any personnel except the ones we don’t want him to talk to”)
She also noted that Apple hadn’t been following the procedure they had established for complaints about Bromwich’s conduct, and should do so going forward: raise objections with the DoJ within 10 days of the action, confer with the DoJ on the matter, and if that does not resolve it to write the judge a two-pages-at-most letter so it can be mediated. She did not seem impressed by Apple’s antics:
At times, the judge appeared annoyed, and cautioned Apple attorney Theodore Boutrous twice for his characterizations of Bromwich’s conduct, noting that “the record is what it is,” and that “just because you say it does not make it so.”
The ruling comes after the DoJ fired back (PDF) at Apple’s claim Bromwich was biased because of the declaration he filed, noting the transparency of the ploy—the filing was in direct response to Apple’s treatment of and loud public complaints about him, and only biases that come from outside the proceedings count. All the same, Bromwich filed a one-paragraph supplementary declaration, stating under penalty of perjury that he had no such outside biases. The judge agreed, noting there was “nothing improper” in Bromwich’s declaration.
As for Apple’s complaints about Bromwich’s hourly fee, Cote noted that “lawyers get paid a lot of money” and pointed out that one of the partners at Apple’s own law firm charges $1,800 an hour, the highest fee in the country. From the Reuters article:
The Justice Department says Bromwich has indicated a willingness nonetheless to adjust his fee. Cote said she would refer the dispute to a magistrate, "so we can resolve this fee dispute and put it behind us."
Well, this is certainly very entertaining, and it looks like there might be more entertainment to come when Apple files its request for an emergency stay. They will have 48 hours to file it after Judge Cote issues her opinion. When the appeals court issues its decision on the stay, it could be a bellwether for how the rest of Apple’s appeals will go. I’m rather looking forward to it.
All I’ve heard for the last few months has been one side absolutely certain that Cote’s ruling is completely airtight, it’s an open-and-shut antitrust case, end of story—and the other side equally certain that it will never hang together, that Cote and Bromwich are biased, and so on. It will be nice to see a hint from the actual legal system of what Apple’s potential fortunes might be. (Though I’ve been told not to expect too much judicial reasoning from the ruling beyond a yea or nay, you get the stay or you don’t; judges don’t tend to waste too many words on rulings like that.)
There are even those, such as Teleread contributor Michael W. Perry, who see the machinations of Chicago Machine politics behind the ruling, believing that Obama’s DoJ is out to boost Amazon and destroy Apple. Kind of odd, then, isn’t it, how the Obama Administration has been stepping in on Apple’s behalf, to overturn the patent injunctions Samsung has won against sales of Apple products in the US? You’d think that if the Obama administration were really out to destroy Apple, it would just stand aside with its hands in its pockets, whistling innocently while Samsung beat Apple up for its lunch money.
Anyway, I’ll link the ruling when it’s up. And will definitely be looking forward to further developments.