Appeals Court May Limit Apple's Antitrust Monitor

DOJA panel of three judges in the 2nd U.S. Circuit Court of Appeals heard arguments Tuesday from the Department of Justice (DOJ) and Apple on the imposition of an antitrust monitor on the company. Reports from the hearing show that the judges may be willing to limit the responsibilities and authority of the monitor, but they scoffed at the notion that having the monitor during the appeals process will cause "irreparable harm" to the richest company on the planet.

The monitor, Michael Bromwich, was imposed on Apple by Judge Denise Cote in late 2013 after she found the company guilty of orchestrating a conspiracy to raise prices on ebooks. Apple is appealing its conviction, as well as the imposition of the monitor, and it wants the 2nd Circuit to stay Mr. Bromwich from performing his duties during the appeals process.

A single judge granted a temporary stay, and Tuesday's hearings was about whether or not that stay should become permanent.

One of the bars for such a stay is that the monitor would cause irreparable harm should Apple end up winning its broader appeal. "The court can't give us relief. It can't turn back the clock." Apple attorney Theodore Boutrous Jr. said in Tuesday's hearing, according The Wall Street Journal.

Apple has argued that Mr. Bromwich's rate of $1,175 per hour is extravagant, but the panel of judges showed little sympathy for the notion considering Apple's wealth. Two of the judges noted that losing money isn't an irreparable harm.

But Apple has also argued that Mr. Bromwich has been given a broad and weeping mandate that allows him to demand any document he wants and to speak to anyone he wants, whether or not they have anything to do with Apple's antitrust compliance.

On this front, the judges appeared more sympathetic, according to Fortune's Philip Elmer-Dewitt, who noted the judges mentioned Mr. Bromwich's demands to interview chief designer Jonny Ive on two occasions. The AP reported that the DOJ's attorneys argued that Mr. Bromwich's powers were already spelled out in Judge Cote's orders, saying, "The language of the injunction makes clear his tasks. He may not demand that Apple do anything."

The appellate judges didn't seem to buy that, however, and they asked Apple if they company would find it acceptable if they spelled out specific limits on Mr. Bromwich. Apple's attorneys said that it would be an improvement, but insisted the entire monitorship should be scrapped.

Arguments in front of appellate judges (and the Supreme Court) don't always indicate how the judges will rule, but all three sources that were present at the 45-minute hearing indicated that the judges appeared unlikely to grant a permanent stay, but did seem interested in limiting the scope of Michael Bromwich's powers to monitoring Apple's antitrust compliance.

At the end of the day, that would represent a improvement for Apple. The difference between a monitor and a "quasi-prosecutorial agent who's been appointed by the court," as Apple put it, is significant.