The lawyer overseeing an Apple antitrust order is a political hack who has run roughshod over the judicial process during ten visits to the company’s Cupertino headquarters, a Wall Street Journal editorial charged Tuesday, and he should pay back the $2.65 million he has already charged the company for a court-ordered investigation
The page-long editorial (paywall) makes a case against Michael Bromwich, who was appointed by U.S. District Judge Denise Cote in 2013 to oversee issues related to her ruling that found Apple fixed the price of ebooks.
While the Journal has gone after Bromwich before, Tuesday’s editorial is especially provocative, and is paired with a separate article that excerpts parts of a transcript from a recent appeals court hearing. Here is some of what the Journal, which appears to smell blood in the water, had to say:
Mr. Bromwich has since charged Apple in excess of $2.65 million for his services through January, conducted some 80 interviews with executives and staff, and made 10 fact-finding missions to California. According to billing records and his semiannual reports to Judge Cote, which we reviewed, there are new reasons for the Second Circuit to sack Mr. Bromwich and end what is a major abuse even by the standards of modern antitrust.
The editorial goes on to repeat criticism that Bromwich, who is billing $1,100/hour, has no background in antitrust law, and that he is a friend of the judge. It also claims he has exceeded his authority, and conflated the role of the prosecution and the judiciary:
The problem is that Mr. Bromwich has been stumbling all around Cupertino to conduct a roving, unfettered inquisition into Apple’s business … He even probes units such as Siri voice recognition, the maps group and hardware engineering. None of this is relevant to antitrust.
As for Mr. Bromwich’s narrow ‘defined mission,’ he finds that the live or online antitrust training sessions that are mandatory for 5,000 employees are insufficient because they do not ‘acknowledge, dissect, and discuss past cases in which Apple was involved.’ Apparently he wants these seminars to be encounter groups in which Apple workers come to terms with misdeeds they vigorously deny.
You get the idea. While the Journal has vented about Bromwich before, the new editorial’s tone — and its assessment of an appeals court hearing in December — suggests Apple might just succeed in rolling back parts of Judge Cote’s landmark 2013 ruling. That’s because the new details of Bromwich’s activities (some of which were redacted until) may sway the appeals court judges, who have already appeared more sympathetic to Apple than Judge Cote, that this may be an investigation run amok.
Apple has already agreed to a $450 million settlement with the Justice Department and class action lawyers over claims it headed a price-fixing conspiracy, but the deal is contingent on the Second Circuit of Appeals’ review of the original 2013 decision. In addition to that case, which is still pending, the appeals court is also taking up the question of the Bromwich’s conduct in March.
Critics, including me, have argued that the Justice Department’s antitrust campaign against Apple has been misguided given that the company remains a bit player in a market dominated by Amazon. Now, the Journal‘s latest salvo (whose appearance may have been fostered by Apple’s lawyers) and the upcoming hearing, will but the long-running affair under yet more scrutiny. Here, by the way, is how the Journal thinks the whole thing should end:
If Apple prevails in the Second Circuit, it ought to sue Mr. Bromwich and attempt to disgorge the $2.65 million he has soaked from shareholders.