Court Appointed Antitrust Monitor Accuses Apple of Obstruction

| Analysis

Apple on a leashMichael Bromwich, Apple's court-appointed antitrust compliance monitor, filed documents with Judge Denise Cote accusing the company of obstructing his work in monitoring his work. According to documents filed earlier by Apple, Mr. Bromwich doesn't have any work to do until the company's new compliance policies are due on January 14th.

Judge Cote appointed the monitor following her conviction of the company for antitrust violations. In that case, Apple was accused of being the ringleader of a price fixing scheme related to iBooks with five of what was then the big six publishers.

Since his appointment, Apple has pushed back against Mr. Bromwich's claim that he has a wide mandate from Judge Cote that would turn his compliance monitoring into a full-fledged investigation inside the company.

The AP reported that Mr. Bromwich complained that he had been cut off from Apple's top executives. This follows earlier documents filed by both him and Apple that said he had demanded access to all of Apple's leadership, including those who have nothing to do with antitrust compliance.

In the new documents, Mr. Bromwich said he was told by an Apple director in mid-October that Apple's executive ranks would, "never get over the case," and that they were extremely angry about it. Though Apple was convicted, the company has denied that guilt and is appealing the case.

It's a curious case for a number of reasons. For one thing, the price setting scheme Apple was convicted of orchestrating has been obviated by settlements reached with the publishers. As such, it's not sure what there is to monitor, let alone why a monitor is needed in the first place.

To that end, and as noted above, Apple's new compliance policy isn't due until January 14th, but Mr. Bromwich began asking for meeting with every board member and all of Apple's top executives—including chief designer Jonathan Ive and CEO Tim Cook—even though few outside of Apple's legal team and senior vice president Eddy Cue have anything to do with Apple's iBooks.

On the other hand, Mr. Bromwich appears to be doing what Judge Cote wanted him to do. The result has been tremendous friction, and Apple has been escalating its post-trial efforts to derail the monitorship and perhaps even Judge Cote's authority over the case.

If an appellate court doesn't back Apple up, however, the weight of law is (obviously) on the side of Judge Cote and her monitor.

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What possible penalties can Judge Kote impose upon Apple for failing to comply with the court ordered monitoring?

Can she jail executives for failing to make themselves available?
Can she impose fines on Apple that would actually make an impact upon Apple? Can she fine Apple $30 billion and $1 billion for every day that they fail to comply?

What exactly is the point of all this chicanery?

Bryan Chaffin

Good questions, daemon. Clearly from a monetary standpoint, Apple is above the law (whether that’s good or bad is another issue).

But she could hold execs in contempt and jail them as part of that process. I would think things would have to get pretty ugly before that happened.


It is clear by now that Bromwich isn’t interested in any compliance monitoring, for which he isn’t qualified anyway, all that Bromwich is interested in is filling Bromwich’s pockets.


Here’s a quote from theregister, not known as the most Apple-friendly publication out there:

“The biggest negative in 2013 was the bizarre decision from Judge Cote in the ebooks price-fixing case, which handed Amazon a retail monopoly: permitting it to sell books at below cost, while tying Apple’s hands. Bizarre, because harm wasn’t demonstrated - prices across the market continued to fall - and the long-term consequence is a less competitive book industry. Expect it to look much more like Hollywood each year. And not in a good way.”



This sounds pretty Apple-friendly:

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