It’s been a while since I’ve had much to say about the Apple antitrust suit. I’ve been a bit busy to write much for TeleRead in general, what with my new day job and things. Nate on The Digital Reader has some good coverage of the main points of interest:

There’s also a new, related case in which three defunct e-book stores file suit against Apple and the publishers complaining that agency pricing put them out of business. I look forward to reading more about this case; it looks interesting.

But in writing my PACER article from earlier, my attention was drawn back to some documents in the DoJ case listing I hadn’t seen before. This is a bit of ancient history, but it’s interesting (and in some cases amusing) ancient history.

Back in April, anti-trust monitor Michael Bromwich’s team’s first report on the state of Apple’s anti-trust compliance was due, and he gave it. Apple tried to request that the report not be released to the public, but in a handwritten order (has she gotten fed up with typing all the responses to trivial little requests in this case?), Cote specified that Apple could have the chance to redact anything they didn’t want to appear in the public version, then she’d decide later on if any of it needed to be unredacted. (As it turned out, Apple’s redaction requests were trivial enough that Bromwich was able to rewrite the report to make them unnecessary altogether.)

And then Bromwich filed his report. In order to provide context for the discussion of how much his team had actually been able to get done, he devoted about half of it to recounting Apple’s stonewalling measures, effectively recapitulating the declaration he made to the court late last year. That part of the report, and the part dealing with Apple’s compliance after the appeals court tossed out the request to stay the monitorship, are the most interesting parts—they read almost like a soap opera. The rest is more than a little dry, though it does provide as good an understanding as the monitor team has of exactly what Apple’s been doing..

Essentially, Bromwich felt Apple had made a promising start on complying with Cote’s decision’s antitrust training requirements, but it needs to conduct an antitrust risk assessment in order to gather information useful in crafting such a policy. He also noted that the monitor team’s relations with Apple had improved considerably, and that Apple had immediately implemented the team’s suggested improvements to the draft material it had been shown, but the monitor team still didn’t have sufficient information about Apple’s structure, business methods, and operations to be able to assess how effective the policies were going to be. They still hadn’t gotten to interview more than one member of Apple’s Board of Directors or any of the company’s executive team.

But for all that Bromwich claimed to have entered a better working relationship with Apple since getting the appeals out of the way, Apple wasn’t terribly thrilled that he devoted fully half of the report to rehashing old squabbles. In a May 9th meeting before Magistrate Judge Michael Dolinger, whom Cote appointed to oversee disputes concerning the monitor, Apple held that, since the report was half old material, they should only have to pay Bromwich half his salary.

Given the three month delay on the release of transcripts, the transcript of this hearing only became available last month, and it is definitely entertaining reading. Department of Justice attorney Lawrence Buterman and Apple-employed attorneys (from two different law firms) Matthew Reilly and Lawrence Zweifach argue with each other, Bromwich gets a word in here and there, and Dolinger occasionally waxes sarcastic from the bench. You’ve got to love a judge who says things like:

MR. ZWEIFACH: Just one point, your Honor. I just have to respond to something Mr. Buterman said. I’m sorry.

THE COURT: The irrepressible impulse. Go right ahead

There’s also the amusing instance where Zweifach complains that Bromwich is engaging in “fact-finding,” and Dolinger says, “Well, obviously.” Zweifach’s one-word response, “Pardon?” conjures up amusing images of bewilderment. (Dolinger explains that the nature of the antitrust program Apple sets up involves facts, and Bromwich’s job is to find them.)

Apart from the fee dispute, Apple’s attorneys repeat the same old refrain that they feel like Bromwich is going on fishing expeditions by wanting to talk to Apple’s executives, while Bromwich and Buterman insist he isn’t.

In the end, Dolinger denies Apple’s request to cut Bromwich’s salary, finding that the inclusion of the background material is necessary to establish the context for the report. He also reminds Apple that Bromwich has the necessary authority to make those interview requests, that talking to executives for an hour or two here and there can hardly be said to represent “undue burdens on Apple’s ability to conduct its business,” and that they have been given a specific procedure to use for resolving disputes over Bromwich’s behavior that they should be using if they feel he is overstepping his authority.

Bromwich’s team’s next report is due to come out in mid-October. It will be interesting to see what he has to report given six months in which his team and Apple have (presumably) been able to work more closely together. Did he finally get to talk to the board members and executives? How has Apple’s compliance program changed and evolved over the last six months? I guess we’ll just have to wait and see.

There are only a couple of other minor documents filed since the transcript. Lawrence Buterman left the Department of Justice in July, so filed for and received permission to withdraw from the case. An attorney from the New York State Attorney General Office’s Antitrust Bureau also withdrew from the case on leaving employment there.


  1. Given what I just read in the NY Times, whatever Apple does or does not do is of no effect on Amazon. Amazon is doing a fine job of ruining itself by courting authors and then treating them like trash. BTW, I have never been invited to Campfire, so let me make this plain. If they had, I would not have gone anyway. Who can afford what amounts to a drain on an author’s pocketbook in return for the chance to rub noses with a rival author? Fuggidabout it.

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