My, the squabbles between Apple and the e-book anti-trust monitor Michael Bromwich have been going on for a long time, haven’t they? I can’t even keep track of how many shots and volleys have been fired back and forth. The latest news out of the case involves the appeal of Judge Cote’s decision not to disqualify Bromwich. The 2nd Circuit Court of Appeals declined to reverse Cote’s decision, so Bromwich stays on.

Circuit Judge Dennis Jacobs found that some of Bromwich’s behavior (such as submitting an affidavit in conjunction with the plaintiffs’ legal brief) might be a little sketchy, but neither that nor Bromwich’s billing rate, “rich as it may be,” were sufficient grounds to disqualify him. U.S. District Judge Jesse Furman criticized Apple for waiting to bring up these issues while the relationship with the monitor steadily deteriorated.

This pretty neatly dashes the hopes of those who complain that Cote and Bromwich are corrupt, picking on poor old defenseless Apple. (Funny that the complaints Apple raised did not include the Wall Street Journal’s allegations of improper nepotistic behavior on Cote’s part by appointing him, isn’t it? It’s almost as if they knew those accusations wouldn’t fly.)

This case continues to provide a marvelous dose of schadenfreude almost every time something new comes to light. I look forward to seeing where it goes next.


  1. The Second Circuit judiciary is deeply implicated in this one, particularly in the selection of this judge for their bench. You can find her rather dismal ratings here:

    The Second Circuit, South District (Manhattan) has a history of issuing dreadful decisions with respect to copyright law. One was so awful, copyright law was amended to override it. One that impacted a copyright dispute I was in was so dreadful, I couldn’t find a single law journal article defending it. Eventually, the Second Circuit pretended it didn’t rule as it had ruled in that one.

    The Apple decision may follow a similar path. It was dreadful, particularly in contrast to all Amazon’s misbehaviors including aggressive price-fixing. Of course, that’s the DOJ fault, but a better judge would have seen through that. Even a third grader can understand that Apple, which at that time had 0% of the ebook market to Amazon’s 90% couldn’t fix prices. Not so this judge.

    And appointing a lawyer with no anti-trust background as anti-trust monitor at very large fees? Imagine a similar situation where you need heart surgery and a family practitioner is called in instead, again wanting to charge heart surgeon fees. Same thing.

    I suspect that Apple’s real agenda is simply punitive. They intend to create enough publicity to discredit this judge and this lawyer. The Second Circuit will never admit it’s wrong. But it will behave differently in the future.

  2. Actually, they kind of did. According to the terms of the agreement, they were supposed to bring up any complaints with the court within ten days of the behavior being complained about, but, for example, they never mentioned their disagreement with Bromwich over him wanting to get right to work and them thinking he needed to wait 90 days until the 90 days were almost up. Instead of, say, bringing it to the court by day ten or twenty.

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