Following Apple’s loss of its monitor appeal on February 10, Judge Denise Cote has now appointed a magistrate to oversee Apple's future disputes with its external monitor. Under the order, Magistrate Judge Michael Dolinger is now charged with overseeing the resolution of “any disputes that arise in connection with Apple’ external monitor, subject to appeal to this Court.”
The appointment of Dolinger comes after a January 13 hearing at which Cote expressed deep disappointment with Apple’s refusal to work with the court-ordered external monitor, Michael Bromwich, or to work with DoJ attorneys to resolve concerns over Bromwich’s work, as set out in her final order.
In its February 10 ruling, the Second Circuit Court of Appeals upheld Cote’s order that Apple must fully comply with the monitor provision.
The appointment of Dolinger to oversee any future disputes appears designed to ensure any future Apple disputes have merit, and that the parties are at least working constructively to resolve those disputes. If Dolinger is unable to broker a resolution, an appeal can be made directly to Cote.
In filings and statements before the court, U.S. attorneys had accused Apple of “trumping up” its monitor concerns and waging “a campaign of character assassination,” against Bromwich in hopes of expunging the monitor provision and delaying the monitor’s work. U.S. attorneys argued that there was never any real dispute over the monitor’s duties, and that Apple was “manufacturing” objections, which it then refused to resolve—and the Second Circuit seemed to agree.
While some media reports cast the Second Circuit denial of Apple’s stay as including a narrowing the monitor’s scope, in fact, the Second Circuit decision merely concurred with the U.S. attorneys’ own reading of the monitor provision. In arguments before the Second Circuit, U.S. attorneys said that Cote’s order should be “interpreted narrowly,” and conceded that Cote’s injunction did not empower the monitor “to investigate whether [Apple] personnel were in fact complying with the antitrust or other laws,” nor did it enable to monitor to demand documents not related to his task of overseeing Apple’s antitrust training program.
“We agree with that interpretation of the district court’s order,” the Second Circuit held. “In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation.”
In her order this week, Cote also ordered that Apple promptly comply with external Bromwich’s requests for documents by February 26—this includes documents requested last October, as well as documents first requested last week. She also allowed for Apple to dispute any recent document request to her directly, ahead of a scheduled meeting between Bromwich and Apple executives.
Cote also declined to schedule regular status conferences with the parties, and instead ordered the parties to schedule a conference with Dolinger within the next two weeks—unless there are no disputes, at which point the meeting may be cancelled.