Appeals court has harsh words for Apple and DOJ in fight over antitrust monitor

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A three-judge panel rebuked lawyers for Apple and the federal government on Tuesday morning, as the two sides argued over what to do about a court-appointed monitor that Apple claims is running an unconstitutional investigation into the company’s business practices.

Apple complained that Bromwich, who has no experience in antitrust law, has already billed Apple over $130,000 to investigate the company, and that he has made premature demands to meet with everyone from lead designer Jony Ive to former U.S. Vice President Al Gore, who sits on Apple’s board. The government countered that Apple does not want to comply with the law.

In hearing arguments from Apple and the Justice Department, the judges expressed skepticism for both sides’ positions, and hinted they may issue an order to spell out the duties of the monitor. More broadly, the fight over the monitor is the latest twist in Apple’s ongoing effort to challenge a federal judge’s ruling last fall that it organized a conspiracy with publishers to fix the price of ebooks.

“You wouldn’t be in this situation in the first place…”

Apple’s lawyer, Theodore Boutros, told the appeals court judges that Bromwich’s behavior raised constitutional questions because, in his investigation, he has been combining the roles of both judge and prosecutor.

“This is a separation of powers issue,” claimed Boutros, arguing that Bromwich is supposed to be a neutral agent of the judge, but has instead launched an inquisitorial investigation and even volunteered himself as a witness against Apple. He also complained of the monitor’s demands for multiple meetings with senior Apple executives, and argued Bromwich should be removed to prevent “irreparable harms.”

The judges did not appear especially sympathetic. They pushed Boutros to explain why Apple executives could not spare a few hours to meet with the monitor, and what harm was coming of his activities.

“Maybe if they had spent more time keeping the company from violating antitrust laws, you wouldn’t be in this situations,” one of the judges told Boutros.

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The judges also suggested that the real source of Apple’s objection to the monitor lay in his billing rates; this a problem from a legal standpoint because, when considering a request for a stay, courts typically don’t consider money to be a form of “irreparable harm.”

Boutros responded by stressing that the monitor’s activities were unconstitutional, especially as the order setting out his duties did not set meaningful limits of his investigation. He noted that Bromwich can make demands about Apple’s private business dealings and report them to the court and the government.

No money back

After pressing Boutros to explain how Apple was being harmed by the monitor, the judges pushed the Justice Department’s lawyer, Finnuala Tessier, to explain what — if any — limits the lower court had imposed on Bromwich’s investigation.

The judges questioned the government’s suggestion that Bromwich was simply there to confirm that Apple was developing compliance policies, noting that the actual words of the order imposing the monitor don’t appear to do that. As a result, the monitor could demand information about new Apple product lines; as an example, one judge gave the example of a hypothetical “Granny Smith computer.”

The appeals court also pointed out that money is normally not considered an “irreparable harm” because a party can eventually recover it if they win on appeal. But, in this case, Apple will be stuck paying Bromwich’s bill whatever the outcome since, as Tessier acknowledged, there are no examples of the U.S. issuing refunds in this sort of situation.

“Apple is one of the richest entities in the world,” observed Justice Pierre Leval, but noted that not every company in its position would be able to afford to pay such a bill.

Boutros, Apple’s lawyer, also noted that Bromwich, as a private lawyer, had an incentive to run up high bills whereas a government lawyer would not. The judges countered that this suggested that Apple was just concerned about the cost of investigation.

An awkward spotlight

At the conclusion of the 45-minute hearing, the judges said they would take the arguments under advisement and issue a final ruling on the stay later on. Their ultimate decision is likely to be informed not only by the law but by protecting the image of the courts in the face of a flagrant — but possibly correct — challenge by Apple.

Antitrust experts have noted that the monitor’s activities are indeed unusual, and appear to elide the roles of prosecutor and judge. Moreover, the optics of the situation are awkward because not only does Bromwich lack antitrust credentials, he is apparently a personal friend and political ally of Judge Denise Cote, who appointed him.

The situation has led the Wall Street Journal to issue two withering editorials calling Cote a “disgrace,” and urging the appeals court to remove Bromwich. In a broadside last week, it noted:

The case has grown into an unusual challenge to the legal and constitutional authority of court-appointed monitors, which were rare as recently as a decade ago. They’ve since become multimillion-dollar operations that can loot companies and are a fabulous gig for white-shoe lawyers with the right judicial contacts. Mr. Bromwich has an unlimited budget and wants to bill at $1,100 an hour to lecture Tim Cook and Al Gore about the appropriate “tone” to take about bogus antitrust charges.

In response to such media scrutiny and Apple’s ongoing legal challenges, the appeals court judges will likely look for a way to respond to the separation-of-powers concern while also preserving the dignity of the federal court. The most likely outcome, then, is that the judges will refuse Apple’s request to remove the monitor, but provide an order that strictly delineates what Bromwich can and can’t do.

In the meantime, Apple’s long running battle against the antitrust charges will continue. The company is currently preparing its appeal of the original ruling to the Second Circuit, while also fighting off class action lawyers and state attorneys general seeking hundreds of millions in fines in the lower court before Judge Cote.

Thumbnail image courtesy of Thinkstock/Jim Lopes

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