This was a minor battle, but Apple’s first crack at the Second Circuit Court of Appeals did not go well. In a brief order issued Monday, a three-judge appeals court panel denied Apple a stay of Judge Denise Cote’s external monitor provision, finding that there was in fact no real dispute about the scope of the monitor's work.
The court cited the government’s own statements that the monitor, Michael Bromwich, was “empowered to demand only documents relevant to his authorized responsibility” and to “interview Apple directors, officers, and employees” only on subjects relevant to his task. “We agree with that interpretation of the district court’s order,” the court held. “In addition, we take counsel's statement as a formal representation that appellees also accept that interpretation.”
The ruling comes after Cote denied Apple’s request for a stay of the external monitor she appointed last fall following her ruling in Apple’s e-book price-fixing case, and ordered Apple to cooperate fully with the monitor going forward. Cote had then granted Apple a temporary stay while the Second Circuit agreed to hear the case on an expedited basis.
Apple attorneys had accused Bromwich of conducting a “roving investigation,” questioned his impartiality and his fees, and claimed that his conduct—including direct requests for interviews with Apple board members and executives—was prosecutorial, and overly burdensome.
DoJ attorneys, meanwhile, cast Apple's complaints as a "baseless" and "manufactured" effort to delay the monitor’s work. In filings, and at a January 13 hearing, DoJ attorneys said they had repeatedly tried to engage Apple to address the company's stated concerns, but concluded that Apple was not interested in "resolving any issues" but only in "having the issues available to them" as they pressed their appeal.
Under Cote’s final order in the Apple price fixing case, Bromwich is tasked only with overseeing the implementation of Apple’s internal antitrust training program. If nothing else, Apple's tactics have succeeded in running four months off Bromwich's two-year appointment.
In a statement, DoJ officials said the government was pleased with the court’s decision. "Today’s ruling makes abundantly clear that Apple must now cooperate with the court-appointed monitor," said DoJ spokesperson Gina Talamona.
Apple’s appeal of Judge Cote's July 10 verdict in the price-fixing case and the final injunction are still pending before the Second Circuit.