In a December 30 filing, attorneys for the Department of Justice and the state and consumer classes ripped Apple’s bid for a stay of certain provisions of Judge Denise Cote’s final injunction issued after the company was found liable for e-book price-fixing.
In a strongly-worded brief, attorneys questioned Apple’s conduct, and again suggested that the company is trumping up concerns over the court’s external monitor, Michael Bromwich. It urged Cote to deny Apple’s bid for a stay while its appeal is heard, arguing that Apple is unlikely to prevail in its appeal and that the company will not suffer harm absent a stay.
In a letter filed in November, Apple attorneys complained that Bromwich was exceeding the bounds of the narrow final order signed by Cote in September, acting as “as an independent investigator whose role is to interrogate Apple personnel about matters unrelated to the injunction in an effort to ferret out any wrongdoing, all at Apple’s expense.” Apple also complained about Bromwich’s fees.
Apple attorneys later filed a motion for a stay of the final injunction's monitor provision, contending that Bromwich was conducting a “roving investigation” that was disrupting Apple’s business operations. A hearing on the stay request is set for January 13.
In its reply brief, however, the DoJ and the states argued that Bromwich was acting well within the scope of his duties, and that his request for one-hour interviews with Apple executives was standard.
“Stripped of its blustery rhetoric and personal attacks, Apple’s motion is about its desire to shield its highest-level executives and Board members from the perceived inconvenience of having to sit for these interviews,” the brief states. “There is nothing improper about Mr. Bromwich’s request to interview the people with ultimate responsibility for overseeing Apple’s compliance with the law, nor is there anything remarkable about any action that Mr. Bromwich has undertaken in connection with his role as External Compliance Monitor.”
In fact, DoJ attorneys note, Bromwich’s requests for interviews with senior executives and board directors are “wholly necessary, where company senior executives participated in the conduct that gave rise to the underlying liability.”
What is remarkable, “and wholly unbelievable,” DoJ attorneys argue, “is Apple’s argument that Mr. Bromwich’s requests for one-hour interviews of its Board members and senior executives will result in a ‘loss of market share growth’ and ‘interference’ with the development and marketing of new and innovative products.”
Bromwich was tasked by Cote with a narrow mission: to help Apple craft an antitrust training program for its employees. But despite Apple’s statements to the Court that it “intended to be a model for antitrust compliance,” DoJ attorneys argue that Apple has instead “taken an adversarial posture” and engaged in “obstruction” that has required Bromwich to devote “a substantial amount of his time engaging with Apple on scheduling disputes and responding to baseless objections.”
In opposing the stay, plaintiff attorneys reiterated that the court found Apple lawyers and “its highest level executives had orchestrated a price fixing scheme and exhibited a blatant and aggressive disregard for the requirements of the law.” As such, “the public’s interest in preventing further antitrust violations by Apple requires that there be no delay in providing Apple the help it needs to develop a commitment to understand and abide by the requirements of the law.”