Court rejects Apple request to stay monitor in e-book case; Bromwich to return – with limits

“A federal appellate court on Monday rejected Apple’s request to stay the monitor, Michael R. Bromwich, a Washington lawyer, from doing any more work pending the outcome of its challenge to a judge’s earlier order appointing the monitor in the first plac,” Matthew Goldstein reports for The New York Times.

“But a one-page ruling from the three-judge panel of the United States Court of Appeals for the Second Circuit did put some limits on how far Mr. Bromwich can go in demanding documents and interviews with Apple employees,” Goldstein reports. “The ruling said that the monitor’s job was to make sure the company was putting in place procedures to comply with federal antitrust laws and that Apple executives and board members ‘are being instructed on what those compliance policies mean and how they work.’ Yet, the order went on to say the monitor was not supposed to ‘investigate whether such personnel were in fact complying with the antitrust or other laws.'”

Goldstein reports, “Apple contends the appointment of a monitor is unwarranted and represents a major intrusion into its business practices. The company has argued there is no need for a monitor because it is already moving to enact a plan to bring its pricing policies for consumer goods into compliance with federal antitrust laws.”

Read more in the full article here.

MacDailyNews Note: Apple’s appeal of the original verdict is pending.


  1. As soon as you insert that NSA code into iOS, Apple, you’ll start winning all kinds of U.S. rulings and court cases.
    (Brought to you by Carl’s Jr.)

      1. Think that pizza and custard is not moving through. It’s backing backing up so much it’s coming out the wrong end. Ever considered whole grain fibre?

        Bought to you by Drano Colon hydrotherapy, we unblock the unblockable.

  2. How do you spell corruption? G O V E R N M E N T. Give 1 example of an oxymoron: We’re the government, and we’re here to help.

    Hard not to be cynical when you read the news.

    1. I hear that quote a lot from people until something terrible happens, then they are all about complaining about the lack of government assistance.

      And if you believe there isn’t corruption in the private sector, you need to wake up. At least government help doesn’t come with a profit calculation involved.

      1. Ya, because so many government officials are volunteering their time to make the world a better place. None of them have an attitude of “What’s in it for me?” That’s why there are no lobby groups or fiscal scandals right?
        Government is frighteningly like the private sector. The difference is they suck at it. Don’t believe me? What’s the debt at? And what do they have to show for it? Have they eliminated poverty? Achieved a level of world peace? Cured cancer? Or, have they bailed out corporations, fueled long wars abroad, wasted it on scandals, thrown it to the corrupt, run organizations in secret to violate civil liberties……shall we go on?

        Like I said, hard not to be cynical when one reads the news. I’m not saying the private sector isn’t corrupt, that’s often a given. But shouldn’t we be concerned when the public sector in charge of our well-being is? How much better good could have been served to the American people with the money they’ve dumped into this stupid injunction against Apple for bringing DOWN the price of e-books for Americans rather than following a wholesale system that is more or less irrelevant to electronic goods?

        1. Actually, the projected US deficit as a percent of GDP for 2014 is lower than it was in the Reagan years. And the Government’s job is vastly different to the private sector’s: the private sector’s job is to hire people, make and sell products and services, and promote the velocity of money. Instead of doing that it’s creating record profits, demanding more and more productivity from fewer workers, and refusing to hire. The percentage of GDP going to shareholders is at a record high; the percentage going to employees is at a record low. (One of) Government’s jobs is to create the conditions that allows the private sector to create jobs. Unfortunately, much of the private sector is more concerned with ever increasing profits than with employment. Another of Government’s jobs is to protect its people – including against large corporations which abuse their power.

          Having said that, I don’t understand at all the rationale behind finding Apple guilty in the eBooks case, and I personally think it’s wrong. Like most here, I think the villain is Amazon. But the amount of money spent by the government on the case is not even a drop in a very large ocean. And it was not this Ct. of Appeals’ job to determine whether that verdict was correct. Its job was to determine whether Bromwich was overstepping the authority given him by the trial court.

    2. Stupid comment. This is completely expected at this point in the case and with the limited scope of this appeal. Apple shot for the stars and landed on the moon — it achieved its short-term goal, which really was to get Bromwich reined in. He was running around like a kid in a candy store, only the store had to pay him for each piece of candy he ate.

      This appeal was never going to be won as Apple sought, but it never hurts to ask for everything. Apple could never prove irreparable harm for Bromwich’s actions for everything, but it could prove he was acting far outside of the bounds of what he should have been authorized to do. Mission accomplished.

      Now Apple will continue with its appeal of the judgment, and it almost certainly will get it overturned. Judge Cote not only displayed potential bias before the trial, but more importantly she ruled completely against established anti-trust law.

  3. When Obama decides to sic the entire Federal Government against you things could get tough. Ask most conservative non-profits, who have been audited by the IRS now personally and their businesses for the temerity of having a political opinion at odds with Our Large Eared Leader.

  4. Not a single word about actual compliance verification? Either DOJ couldnt even stick to one story or is hoping to entrap Apple using any excuse with faked ‘see everyone, told you so!’ outrage.

    1. Edward! How you doing, Moron?

      So what you make of all the Samdung losses? Eventually Apple will make Samdung pay for all the stolen IP. Heck, my boycott alone has cost them 2 TVs, a dishwasher and a fridge. That’s about $7k off their top line right there. Working on friends to do the same…….all i can say is “it’s going to hurt”.

  5. The broom services the cotex and Apple will never allow these conspiritors in. When Apple fnally gets rekeif from the supreme court they should move to have them both sanctioned and disrobed, woth no vaseline.

  6. breeze

    Monday, February 10, 2014 – 11:09 pm · Reply

    The broom services the cotex and Apple will never allow these conspiritors in.

    When Apple fnally gets releif from the supreme court they should move to have them both sanctioned and disrobed, with no vaseline.

  7. So there is to be a court jester/village idiot wandering the halls of One Infinite Jest, scanning for deviance of an undescribed sort, verifiable only through the agency of an apparent legal novelty, the Court of the Arbitrary.

    Well, we all suspected it was only a matter of time before the squigglets of power noticed the increasing influence of an upstart challenger to the status quo, one requiring repression. For everyone’s own good, you understand.

    1. You know, I really hope that Apple has been setting up a reverse-sting operation to nail this guy. Some sort of trojan project for which they can watch for leaks….which are inevitable because we all know that this particular “monitor” and “judge” lack the ethics to maintain confidentiality.

  8. «Goldstein reports. “The ruling said that the monitor’s job was to make sure the company was putting in place procedures to comply with federal antitrust laws and that Apple executives and board members ‘are being instructed on what those compliance policies mean and how they work.’»
    So, what advice/instruction, exactly, is Bromwich going to give Apple executives and board members about how not to collude with publishers to raise e-book prices?

  9. On the bright side, the Court significantly limited what it is this monitor can do. Now, his only job is to verify that Apple is implementing antitrust compliance policies—he can’t ensure that Apple execs are IN FACT complying with antitrust laws. That’s huge. That should mean no more asinine interviews with Jony Ive, for example.

    I’m a law student. These motions—to alter the district court’s imposed remedy before resolution of the appeal on the merits—are very difficult to win. Apple had to prove that Cote “abused her discretion.” While it’s easy for us to say she “no shit, she did!” (I would agree), it is one of the most deferential standards of review in the law. In other words, it wasn’t a “fresh” review of the appeal, like the actual antitrust appeal is (STILL PENDING)—the judges must look at the case with a heavy preference for keeping Bromwich in place.

    1. If the reports are true about what one Justice said about Apple not being in this mess if they haven’t violated Antitrust Laws, that would put him in the same boat as Cote. Apple would be at a significant disadvantage even in the Appeals Court. Hope that’s not the case.

      1. I would say that is simply the judge resisting Apple’s attorneys during oral argument. Judges say stupid/not-very-relevant things during oral argument all the time in an attempt to push back on an attorney’s argument. Our Justice Scalia says outlandish things all the time during argument!

        But no, you could be right too—maybe that one judge really doesn’t think Apple’s appeal is very meritorious. We’ll have to wait and see.

      2. Sceptical – the Appeals Ct. Judge HAS to presume Apple guilty at this stage of the proceedings. The trial court found Apple guilty. The Appeals Courts’ job here was simply to determine whether Bromwich was overstepping his proper authority. They had to determine that question using the assumption that Apple was as guilty as the trial court found it to be.

    2. Eh, I actually looked at the motion. They weren’t challenging the remedy (the monitorship) outright; Apple just wanted Bromwich to wait and see if Apple loses its antitrust appeal before he started his job (i.e., a stay pending appeal). Apple had to show “compelling reasons” why Bromwich shouldn’t be there *now*, and it had to show that any harm it would suffer between now and the actual appeal is irreparable. I’m sure Apple had to show other things, like likelihood of success on the merits (I don’t know much Second Circuit law, but those are some general requirements).

      Anyway, it’s still a very tough legal standard, especially when we’re just talking about time and money. An example of something that’s more likely “irreparable harm” is if, instead of this monitorship, Cote ordered Apple to slap something on its website saying it violated antitrust laws. Maybe no amount of time or money could regain the harm caused to Apple’s brand.

      Just to reiterate my central point: this was not a fresh (de novo) review of the monitor. Apple had to jump through a BUNCH of legal hoops to get Bromwich stayed, so this ruling isn’t too surprising.

      Let’s wait and see what the Second Circuit has to say about the merits of the antitrust appeal though.

  10. Tim,

    Time to move Apple out of the US. Move it to Germany where things work, the attitude towards business is positive rather than negative and actively working towards harming a company that brings billions to the country.


    1. Ah yes, move to Germany where the German courts are allowing a $2 Billion case based upon SEPs that come under FRAND rules to go forward. The only way Apple would owe that much in licensing under SEPs/FRAND is if Apple sold a on the order of a billion iPhones or more.

  11. Wait a minute people. The Court has in effect given Apple what they want in practice, a very tight restriction on what Bromwich can do. He can only monitor the putting in place of appropriate policies (i.e. is there a company-wide email setting out the new rules and does it accurately represent the law?) and that senior executives are being reached in this process (training sessions for the top 200 execs?). Nothing else, especially no monitoring of how the company is applying the new procedures. The only thing they haven’t given Apple is locking the man (and his sidekick) out of Apple buildings altogether.

    PS just seen Concept’s posting: fully agree. This is a major slap to Bromwich and by extension Cote.

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