Apple today requested that U.S. District Judge Denise Cote disqualify Michael Bromwich, the external compliance monitor Apple was ordered to hire to ensure the company complies with all antitrust requirements in the future, from serving in his position, reports Reuters.
An attorney for the consumer technology giant on Tuesday asked U.S. District Judge Denise Cote in Manhattan to disqualify Michael Bromwich from serving as an external compliance monitor, arguing he had shown a personal bias against the company.
In a letter to Cote, Apple's attorney claimed the report filed by Bromwich last month, in which he accused Apple of blocking interviews and disrupting his investigation, was a "wholly inappropriate declaration".
Bromwich's report was filed in reaction to a complaint Apple had filed in November, in which the company claimed Bromwich was overcharging them for his services. In addition, Apple cited Bromwich had aggressively sought to interview top executives when his mandate required him to assess the company's antitrust policies 90 days after his appointment.
Those same complaints were re-asserted in Apple's letter to Cote requesting the removal of Bromwich. Apple was found guilty of conspiring with five publishers to raise the prices of e-books in July.
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The monitor has no right to investigate the company on a wider scale than was ordered by the court. He has no legitimate reason to meet with people like Jony Ive. He has no right to meet with employees of the company without legal representation. To top all of that, he has a long-time personal relationship with the judge in the case. That alone is a clear conflict.
They're also appealing the ruling entirely. So not only is it not in their interest to have someone inside the company gathering information that will benefit their opponent in court--there is a question of constitutionality at play. Apple should not be required to incriminate itself or open itself to further intrusive investigations. The appeal should be based on the original case and evidence at hand.
As for Apple engaging in illegal activity before this...that's questionable at best. Having followed the case closely and seen the evidence presented by the prosecution, I saw nothing that indicated that was the case.
What I saw was a judge that was inclined from the start to find them guilty. Despite records of meetings, emails and phone calls that didn't at all indicate an ongoing or long-term conspiracy, that's exactly what happened.
Apple (or any company) has a right to engage in competitive business practices. Even if those practices are aggressive or damage the income of their competitors. Content creators have the right to charge whatever they please for their content--even if it had previously been offered for less.
The one piece of evidence that seems to have hurt them was a draft email from Steve Jobs indicating that his desire was to raise the price of ebooks so that Apple could compete against the likes of Amazon. The problem is that this was a draft email. It was never sent. If having a personal desire to beat your competitors in business is a crime, or to think up potentially bad ideas to do so is a crime, then we'd have to lock up every business owner in the country.
It is quite clear to me that Apple was targeted by the DOJ (and multiple states) as an easy target. They assumed that like the publishers, Apple would just cave in, pay their shakedown money and the DOJ would get to claim a "Pro-consumer" victory. They're now being punished for not being obedient. This follows a long history of Apple not playing the corporate lobbying (bribery) game and came on the heels of Apple embarrassing the congressional committee that attacked them over their completely legal tax practices.
Second, his fees are high considering that he uses an external company who charges 15% of his fees and his underlings fees to send the bill to Apple, which he also charges Apple.
Third, his fees are high considering there is nothing to monitor yet, but he is trying to interview everyone at Apple, interfering with Apple's business, trying to rack up more billable hours.
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Common sense. There is a monopoly in the e-book market, and that monopoly is Amazon. When Amazon got competition that threatened to break that monopoly, they ran to the courts, and this judge then restored Amazon's monopoly.
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For half of that, I'd watch you watching the paint dry :D
And then you'd have your company charge 15% of that for sending the bill to Apple.
He probably is good mates with the judge and thus got thrown a big name company to work on. Typical government benefits.
This. And I suspect a big reason why Applei a crying foul.
Frankly Apple wants the whole monitor removed period. They feel it is way over the top. They are pushing to get the whole judgement reversed if possible.
But as a first step they want a monitor that isn't asking for crazy fees to support lawyers he shouldn't need (the monitor should be someone versed in antitrust law), and is playing by the rules. Including one that the monitor can't speak to anyone without their lawyer or Apple lawyers present and he has tried to force this. Which they refused and thus why they refused his meetings. Also he is there to monitor iBooks stuff and he's trying to stick into things that aren't even slightly connected. If it was iTunes related okay that isn't so bad. But this is stuff way out on another field and Apple won't have that and shouldn't have to.
So a new monitor that doesn't need his own hired crew, a firm pay rate and firmer rules about what the monitor can and can't do. That's the first step Apple is demanding. And to me it all seems very reasonable
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If he's violating specific court orders like denying folks the right to have a lawyer present when that right was listed in the judgement, then yeah that probably breaks some kind of rule that would get him in trouble
Actually Cote said several times that the MFN, the agency terms etc are all totally legal. And frankly many don't agree with her determination that Apple was part of any conspiracy to collude. Certainly it seems clear that the publishers did, just not that Apple was an active part in it and created it as the DOJ claimed. Time will tell when Apple is done if higher courts that didn't give their opinions before the trial started agree or disagree.
And whether those higher courts will step up and set rules that affect all players and not just the one with the big pockets. Amazon pulled some pretty anti competition moves in their hey day and not a peep. It's time to look at that and to prevent such crap in all digital markets by all players.