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DoJ accuses Apple of 'character assassination' as Judge Cote denies Apple's request for new anti-trust monitor


One has to wonder if Apple now regrets its decision to take a principled stand and not settle the antitrust charges levied against it by the Justice Department.

It's no secret that Apple hasn't exactly meshed well with Michael Bromwich, the court-appointed monitor tasked with keeping an eye on Apple's antitrust compliance measures. In November, Apple filed a motion laying out a vast number of complaints about Bromwich.

For starters, Apple took issue with Bromwich's fee, an astounding US$1,100 an hour. On top of that, Bromwich hired an outside attorney to compensate for the antitrust experience that he lacks -- Apple's words, not mine.

Apple also expressed deep concern that Bromwich took it upon himself to expand his court-appointed duties by demanding to speak with Apple executives like Jony Ive who have absolutely nothing to do with anything antitrust related. You can gather more details surrounding Apple's numerous complaints over here, but suffice it to say that Apple and Bromwich didn't exactly get off on the right foot.

With that as the backdrop, Apple last week submitted a letter to US District Judge Denise Cote asking her to remove Bromwich from the position that she herself appointed him to.

The letter reads in part:

His [Bromwich's] wholly inappropriate declaration in an adversarial proceeding is compounded by his conduct and the circumstances surrounding his appointment and activities, including his reliance on preappointment conversations with the Court and plaintiffs as grounds for expanding his mandate beyond the terms of the Final Judgment, his active collaboration with plaintiffs to broaden the scope of his mandate in this manner and oppose Apple's motion for stay, his financial demands, and his adversarial, inquisitorial, and prosecutorial communications and activities toward Apple since his appointment.

The Justice Department, meanwhile, lambasted Apple for actions it argued amounted to nothing more than character assassination.

In a letter sent to Cote, the Justice Department said that "Apple had chosen a campaign of character assassination over a culture of compliance."

The letter further added:

[Apple] could have been spending the past few months working with the External Compliance Monitor with the ultimate goal of reforming its policies and training, and in the process, change its corporate tone to one that reflects a commitment to abiding by the requirements of the antitrust laws.

That, of course, sounds all well and good, but one of Apple's chief complaints about Bromwich was that he was dead set on beginning his monitor-ship weeks before Apple got around to implementing new antitrust compliance and training programs. Specifically, Apple had until January 14 to get things up and running. Bromwich, meanwhile, was already requesting meetings with folks like Apple board member Al Gore as early as November.

With two competing letters in hand, Cote this week ultimately ruled against Apple.

Reuters reported earlier this week:

At a hearing, U.S. District Judge Denise Cote in Manhattan denied Apple's request to stay an order requiring an external compliance monitor pending the company's appeal.

"I want the monitorship to succeed for Apple," she said.

The judge also said there was "nothing improper" about a declaration filed by a lawyer chosen to serve as monitor, Michael Bromwich, that became the basis of Apple seeking his disqualification.

Cote said she will promptly issue a decision explaining her reasoning. Apple will then have 48 hours to seek an emergency stay from the federal appeals court in New York, she said.

One can only hope, perhaps wishfully, that Apple and Bromwich will somehow find a way to tolerate each other. Arguing back and forth about whether Apple is intransigent or if Bromwich is exploiting his position is ultimately a bad look for all involved.

Lastly, Salon this past weekend published a nice piece detailing the absurdity of the Justice Department's seeming vendetta against Apple.

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