In a minor setback for Apple, a three judge panel of the Second Circuit Court of Appeals has denied the company’s bid to oust its court-appointed monitor, Michael Bromwich. In a brief opinion and order, Judge Dennis Jacobs, writing for the court, held that Judge Denise Cote did not abuse her discretion in appointing and retaining Bromwich, despite Apple's objections, and that the monitor’s conduct was “appropriately constrained by the injunction and by other powerful restraints of law.”
Bromwich was appointed in October, 2013, after Judge Cote found Apple liable for its role in fixing e-book prices with five publishers. In her September 4, 2013 final order, she appointed the external monitor for a two-year term with a narrow mandate: to ensure that an antitrust training and compliance program was put in place at Apple that was "sufficient" and “reasonably designed to detect and prevent violations of the antitrust laws.”
Apple, however, has bristled over Bromwich’s work from the beginning, and Apple attorneys have sought to have him disqualified. DoJ attorneys counter that Apple is guilty of openly obstructing Bromwich's work, and waging a "campaign of character assassination" against him.
"Apple simply does not want any monitor whatsoever," DoJ attorneys concluded in one court filing, and "manufacturing these baseless objections is the only way it apparently believes it can achieve that result."
Notably, Judge Dennis Jacobs is also part of the panel that will decide Apple’s main appeal over its 2013 liability verdict. At oral arguments in December 2014, Jacobs made headlines with questions that made him appear sympathetic to Apple's case.
In April, Bromwich filed his third court-mandated report, and reported that Apple has made some progress on implementing a “robust” antitrust compliance program. But he also reported “significant setbacks," and noted that Apple’s cooperation had "diminished substantially” over the last year.
That could be significant in light of this week's ruling. While his monitorship is set to expire by year's end, Bromwich could ask Cote to to extend the appointment if he believes Apple's lack of cooperation has hindered his work.