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Try as it might, Apple just can’t seem to unburden itself of Michael Bromwich, the monitor appointed to oversee the company’s compliance with antitrust law after it was found liable for conspiring with major publishers to raise e-book prices.
In a Monday afternoon order, the 2nd U.S. Circuit Court of Appeals in New York rejected Apple’s argument that Bromwich has been overreaching and onerous in carrying out his duties. And it ruled that he may continue about his business at Apple even as the company pursues a broader appeal seeking his removal.
A tough break for Apple, which since last November has decried Bromwich for everything from trying to “set up shop in Apple’s boardroom and executive offices” to his fee — more than $1,100 an hour. In one of its more pointed criticisms, the company even went so far as to portray Bromwich as an infiltrating government agent. “While plaintiffs defend Mr. Bromwich’s conduct because he is only investigating Apple’s conduct and reporting to plaintiffs, that only proves Apple’s point: He is acting like an FBI agent — an Executive Branch official — not a judge.”
On that point, the court wasn’t entirely unsympathetic. While it did deny Apple’s request for a stay pending appeal, it also noted that it is doing so with the understanding that Bromwich will “conduct his activities within the bounds” of the duties described in the district court’s order.
“Thus, according to appellees, the monitor was empowered to demand only documents relevant to his authorized responsibility as so defined, and to interview Apple directors, officers, and employees only on subjects relevant to that responsibility. We agree with that interpretation of the district court’s order. In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal.
“We are pleased with the court’s decision,” Department of Justice spokeswoman Gina Talamona told Re/code. “Today’s ruling makes abundantly clear that Apple must now cooperate with the court-appointed monitor. The appellate court’s ruling reaffirms the department’s and district court’s decision that a monitor is necessary to oversee Apple’s antitrust compliance policies, procedures and training to help ensure that Apple does not engage in future price fixing and that U.S. consumers never have to pay the price of their illegal conduct again.”
Apple declined comment on the ruling.