Appeals court denies Apple request to stay anti-trust monitor
February 11, 2014 | 11:23 am
The appeals court has issued its ruling on Apple’s request to have the anti-trust monitor stayed in the e-book price-fixing anti-trust trial. Perhaps unsurprisingly, Apple’s appeal has been denied. That being said, the appeals court did issue what it saw as instructions “narrowing” the monitor’s focus. The monitor is, the court said, supposed to make sure Apple has an anti-trust compliance program in place and that employees are being taught about what it means and how it works. He is not supposed to rummage around looking for violations of anti-trust or other laws.
In the two-page document (PDF), court clerk Catherine O’Hagan Wolfe writes:
Thus, according to appellees, the monitor was empowered to demand only documents relevant to his authorized responsibility as so defined, and to interview Apple directors, officers, and employees only on subjects relevant to that responsibility. We agree with that interpretation of the district court’s order. In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal.
Note that bit in there explicitly recognizing that “the monitor was empowered […] to interview Apple directors, officers, and employees” as part of his job. Apple partisans might try to spin this “limitation” as a victory, but all the appeals court really did is restate the limitations that were already in effect from Judge Cote’s final order (PDF). From that perspective, it’s hard to see this as anything more than another in a series of total legal losses for Apple, and perhaps a sign that the court is inclined not to find fault with the way Cote is doing things as of yet.
Now that the appeal of the monitorship is out of the way, perhaps monitor Michael Bromwich and his team can get on with interviewing the people he’s supposed to. Will Apple continue to try to block him from talking to their executives? Will Apple actually bother to use the dispute resolution procedure Judge Cote reminded them they were supposed to? Or will Apple just keep pushing until Cote has to impose further sanctions? It should be interesting to find out.
The Bloomberg story also notes that Apple lawyer Theodore Boutrous filed a court document opposing the awarding of treble damages to state plaintiffs as part of the damages phase of the case. I wasn’t able to find this document in PACER, though.