Apple gripes about antitrust monitoring

[pwalker8]

Apple most certainly did not accept any plea bargain on the punishment side. Cote told both sides to give her what they thought was appropriate, then she gave the prosecution most of what they were asking for.

There are a lot of beefs from Apple's point of view. All you need to do is read Apple's complaints to see them. The complaints sound pretty rational to me. Yes, Apple does have to follow Cote's judgment, though it does sound like she's been changing the judgment on the fly a bit. As I said before, it will be interesting to see if the appeals court grants Apple's emergency stay. Some say that Apple should win the appeal, others say that Apple won't.

You do realize that talking about Job's "reality distortion field" and about how much Apple thinks they are above the law just make you sound like another "any stick to beat Apple with" guy, don't you?

[pwalker8]

Originally Posted by Sil_liS

That analogy doesn't work. The monitor isn't a punishment. It is supposed to help Apple be in line with the law. The people that Apple hired to ensure antitrust compliance didn't do their job.


Person A recommending person B means that person A has confidence in person B's ability to perform the job that they are recommended for and puts their reputation on the line.


How many people have experience in antitrust monitoring?

The analogy does work. Police are just there to help keep you in line with the law. If you kept a closer eye on your speedometer then you wouldn't be speeding.

I would imagine that there are not many people experienced with anti-trust monitoring since anti-trust monitoring is very rarely done, but there are a ton of lawyers out there with anti-trust experience.

The issue with Cote appointing a good buddy of hers to the job is that it give the appearance of a conflict of interest, something that judges are suppose to avoid.

[bgalbrecht]

Originally Posted by pwalker8

The issue with Cote appointing a good buddy of hers to the job is that it give the appearance of a conflict of interest, something that judges are suppose to avoid.

But if you phrase it "She chose someone she's worked with in the past who has some experience as a court appointed monitor and has great respect for him" it doesn't sound so much like a conflict of interest, does it? When you phrase it like "it's a conflict of interest because she appointed a good buddy", without knowing whether her family and his gets together at least once a month, rather than she has lunch or dinner with him every couple of years and exchanges a few emails with him during the same period, you sound like an Apple apologist.

[Graham]

Originally Posted by pwalker8

BTW, it's been a lot more than 13 hours, in his first two weeks he's charged $138,432.

13 hours of interviews. Clearly he's done a lot more work that doesn't take up Apple employees' time, such as working his way through documents.

Originally Posted by pwalker8

There is also the distraction that he is causing by insisting on interviewing everyone in upper management, including the entire board of directors

Distraction? As noted in the link above, he's only interviewed 4 Apple staff members. The other 7 were Apple lawyers.

Graham

[Sil_liS]

Originally Posted by pwalker8

The analogy does work. Police are just there to help keep you in line with the law. If you kept a closer eye on your speedometer then you wouldn't be speeding.

I was replying to your whip analogy. I quoted it, you must have seen it when you replied to my post. I don't know why you are pretending that I was replying to another of your posts.

Originally Posted by pwalker8

I would imagine that there are not many people experienced with anti-trust monitoring since anti-trust monitoring is very rarely done, but there are a ton of lawyers out there with anti-trust experience.

But a monitor was needed. The monitor can then consult one of the ton of lawyers out there with anti-trust experience.

Originally Posted by pwalker8

The issue with Cote appointing a good buddy of hers to the job is that it give the appearance of a conflict of interest, something that judges are suppose to avoid.

A recommendation letter 20 years ago doesn't make them good buddies.

[fjtorres]

Teleread has a link to the Judge's latest ruling and very good analysis, with excerpts.
(It is 64 pages long.)

http://www.teleread.com/ebooks/opini...apple-monitor/

[Greg Anos]

Originally Posted by pwalker8

Apple most certainly did not accept any plea bargain on the punishment side. Cote told both sides to give her what they thought was appropriate, then she gave the prosecution most of what they were asking for.

There are a lot of beefs from Apple's point of view. All you need to do is read Apple's complaints to see them. The complaints sound pretty rational to me. Yes, Apple does have to follow Cote's judgment, though it does sound like she's been changing the judgment on the fly a bit. As I said before, it will be interesting to see if the appeals court grants Apple's emergency stay. Some say that Apple should win the appeal, others say that Apple won't.

You do realize that talking about Job's "reality distortion field" and about how much Apple thinks they are above the law just make you sound like another "any stick to beat Apple with" guy, don't you?

No offense, but your response sounds like an Apple fanboi's "Apple can do no wrong, no matter what". The US law and it's implementation is clear. Every person and organization is required to follow it, whether they agree or not. This is the issue. Apple was found guilty of a charge. The punishment was not stayed until after the appeal. Both the punishment and the refusal to stay were within the the sentencing constraints of the crime (sic) that Apple was found guilty of. Therefore the judge did not exceed her authority. The guilty do not get to determine what punishments are applied to a case, they cannot pick and choose the punishments. This is true for any person or organization before the bar in the US. So why is Apple any different? To me, this is the ultimate question.

[cfrizz]

Apple isn't any different, and they are required to follow all current laws just as every other corporation and individual.

They broke the law, they were legally tried and convicted of the crime, and must now pay the penalty.

You don't have to like it PWalker, you can debate it till the cows come home but it won't change a thing. You try breaking a law that you don't believe in and see how far you get in telling the judge that you don't believe in it therefore, you decided it doesn't apply to you and see how far you get.

You can try twisting and turning all the facts to suit YOUR point of view all you want, but the actual facts are public record and that is what they were convicted by. Whether they think they are guilty or not does not matter.

Why don't you trying talking to a real lawyer/judge and get their opinion. Because your armchair lawyering opinions aren't worth any more than the lame excuses that Apple gave for breaking the law.

[PatNY]

Originally Posted by fjtorres

Teleread has a link to the Judge's latest ruling and very good analysis, with excerpts.
(It is 64 pages long.)

http://www.teleread.com/ebooks/opini...apple-monitor/

This is an excellent article about the current state of the case. To be clear, it is the judge's most recent ruling that is 64 pages long, not the analysis and excerpts you linked to. At first I thought you meant the latter and I didn't click on it. Good thing I eventually did. It has some very salient points. And it's just 1 page long.

First off: "Ever try to give a cat a bath?" LOL. Spot on.

Now here are some of the important points made in the article:

Disappointingly, Apple made little showing at or before the August 9 conference that it had taken to heart the seriousness of the price fixing conspiracy it orchestrated. Nor did Apple provide the Court with any evidence that it was seriously reforming its internal antitrust compliance policies to prevent a repeat of its violation. Apple’s submissions failed to demonstrate that it took seriously the burden that its participation in the price fixing conspiracy imposed on consumers and on the resources of the federal and state governments that were compelled to bring Apple and the publishers into federal court to put an end to that harm.

The above is from Cote's most recent ruling. It explains exactly why she decided on a monitor. Had Apple shown sufficient remorse or admittance of wrongdoing, then they might have avoided a monitor entirely.

The article then states that Apple's lawyers helped craft the agreement and made no objections during that time:

During the process of selecting and briefing the monitor, Cote notes, Apple didn’t make any objections that the court had no constitutional grounds for imposing one, though they had several chances to do so. They helped craft the final injunction order that gave him his powers, and didn’t make any objections at that time.

The article also talks about Cote's response to Apple's complaint about the monitor's fees (bold emphasis mine):

"Cote points out that his conduct so far has been in keeping with his brief to monitor, not investigate, and that Apple has not supported its complaints about Bromwich’s hourly wage with any authoritative sources suggesting he shouldn’t be. She also notes that the final order specifically includes a section meant to protect Apple from fee-increasing incentives, requiring the monitor “to act diligently [and] in a cost-effective manner,” and that if anyone has been stretching things out, it’s Apple."

Ah-ha! It's all about the money! Well not entirely, maybe. But no doubt money plays a big part in this. These Apple lawyers are being paid as much or more than Bromwich. The more they appeal and draw things out, the more they pad their own retirement and children's college funds. Apple is likely one of their biggest paying clients ever, and they can freely run up their hours without much guilt, knowing how flush Apple is with cash.

The article says that Apple's lawyers kept shifting their arguments in recent filings too. Which lends credence to the idea they are drawing things out and shooting in the dark.

Everything I've seen up to now concerning the actions of Cote and Bromwich appear to be above board and without bias. It doesn't appear than any of Cote's actions constitute reversible error. I doubt Apple's efforts in the appeals court will succeed.

[bgalbrecht]

This is internet speculation, but Judge Cote is (will be?) also presiding over some additional cases related to the anti-trust lawsuits (I think something by the DOJ and the state attorneys general, and some class action lawsuits), so all of these complaints about Cote and Bromwich could be an Apple tactic to go judge shopping by getting Cote removed from the case due to bias and overreach. I don't know if Apple would pay their lawyers for unlimited appeals unless they have reason to believe they might get something out of it.

[PatNY]

Originally Posted by bgalbrecht

... so all of these complaints about Cote and Bromwich could be an Apple tactic to go judge shopping by getting Cote removed from the case due to bias and overreach. I don't know if Apple would pay their lawyers for unlimited appeals unless they have reason to believe they might get something out of it.

Apple has yet to petition to have Cote removed, and doing so would be a very long shot, to say the least, as it appears there is no substantive basis to the charge of bias and overreaching. There’s a good reason to keep the same judge through cases like this – because it could take a new judge months just to get up to speed with all the evidence, players and issues involved. The burdens on the Apple lawyers to prove bias and overreaching would be overwhelming. I would be surprised if they even attempted to get Cote removed.

In a case like this involving very complex anti-trust laws, Apple would likely agree to whatever their lawyers tell them is the proper course, since money is no object. Therefore, their lawyers could appeal up the kazoo and only when slapped down innumerable times -- and possibly even by the Supreme Court -- will they put down their weapons and stop racking up the big billing hours. A less wealthy client might, of course, have already agreed to all the court-ordered sanctions by now and told their lawyers to just settle and have the fines paid. The lawyers for the big 5 have more or less stopped their major billing phases. But Apple’s lawyers carry on in full battle gear – and in full billing mode as well. As I said, money may not be the only factor, but I believe it is a major one. And Apple is likely all too willing to make their lawyers rich and contribute to their retirement and children’s college funds. They are a willing partner in what I think will end up to be meaningless litigation. But the point remains, money and billable hours may be a primary motivating factor – obscured by all the charges of bias and overreaching.

--Pat

[bgalbrecht]

Originally Posted by PatNY

The burden's on the Apple lawyers to prove bias and overreaching would be overwhelming. I would be surprised if they even attempted to get Cote removed.

I agree that it's a stretch, but if that is their long term strategy, they probably have to start by objecting to her rulings and choice of monitor now so that it will look like she's been biased and overreaching since the beginning. That strategy might not work with the superior courts but it seems to be working for pwalker8 and the rest of the Apple fanbois.

[pwalker8]

Originally Posted by bgalbrecht

I agree that it's a stretch, but if that is their long term strategy, they probably have to start by objecting to her rulings and choice of monitor now so that it will look like she's been biased and overreaching since the beginning. That strategy might not work with the superior courts but it seems to be working for pwalker8 and the rest of the Apple fanbois.

There is almost no chance that Apple is trying to do what you say (get Judge Cote removed from the case). It's a very difficult thing to do and very rarely actually happens. However, what it might do is cause the appeals court to give her a bit less due deference when looking at the case.

Yes, I know that calling me an "Apple fanboi" lets you ignore the actual issues in the case and dismiss them out of hand (it's called ad homimem, by the way. A time honored rhetorical device). Yet, the issues remain. We will see what the appeals court has to say.

[pwalker8]

Originally Posted by PatNY

Apple has yet to petition to have Cote removed, and doing so would be a very long shot, to say the least, as it appears there is no substantive basis to the charge of bias and overreaching. There’s a good reason to keep the same judge through cases like this – because it could take a new judge months just to get up to speed with all the evidence, players and issues involved. The burdens on the Apple lawyers to prove bias and overreaching would be overwhelming. I would be surprised if they even attempted to get Cote removed.

In a case like this involving very complex anti-trust laws, Apple would likely agree to whatever their lawyers tell them is the proper course, since money is no object. Therefore, their lawyers could appeal up the kazoo and only when slapped down innumerable times -- and possibly even by the Supreme Court -- will they put down their weapons and stop racking up the big billing hours. A less wealthy client might, of course, have already agreed to all the court-ordered sanctions by now and told their lawyers to just settle and have the fines paid. The lawyers for the big 5 have more or less stopped their major billing phases. But Apple’s lawyers carry on in full battle gear – and in full billing mode as well. As I said, money may not be the only factor, but I believe it is a major one. And Apple is likely all too willing to make their lawyers rich and contribute to their retirement and children’s college funds. They are a willing partner in what I think will end up to be meaningless litigation. But the point remains, money and billable hours may be a primary motivating factor – obscured by all the charges of bias and overreaching.

--Pat

I suspect the strongest motivating factor is that Apple really does believe they are innocent and will eventually win. Otherwise, Apple would have settled long ago without having to admit guilt.

I seriously doubt this is a situation where a law firm is trying to milk Apple for lots of money. Apple has a pretty good staff of lawyers who can give Apple legal advice to keep them from being taken to the cleaners like that.. Theodore Boutrous is the lead lawyer for Apple in this case and is one of the top lawyers in the nation for appeals. He's very successful at what he does and isn't known for leading his clients on.

Most reputable lawyers actually tend to be quite honest and upfront with clients as to the likelihood of success. I have no idea what Boutrous is telling Apple with regards to the likelihood of success. As far as I can tell, 3rd party lawyers who comment on the case (as opposed to Apple fans or Apple bashers) seem pretty much split on the matter. Some say that Apple has a good case for getting the judgement overturned, while others say they don't.

[bgalbrecht]

Originally Posted by pwalker8

Yes, I know that calling me an "Apple fanboi" lets you ignore the actual issues in the case and dismiss them out of hand (it's called ad homimem, by the way. A time honored rhetorical device). Yet, the issues remain. We will see what the appeals court has to say.

And suggesting that Judge Cotes has a conflict of interest for appointing a former colleague of hers as the monitor (one who has been a monitor in several other cases not related to her, albeit not in the field of anti-trust) by using the phrase "good buddy of hers" is not an ad hominem attack?

I use the (perjorative) term fanboi because you seem to be taking every argument the Apple lawyers make at face value, argue that she's biased because she probably started working on the decision before the oral testimony was complete, even though she probably had already read all the evidence that showed the company’s actions were a per se violation of antitrust law before the oral testimony started, argue that providing 300 pages of documentation and interviewing 4 Apple employees and 7 Apple lawyers was egregious and spending 120 hours (if I got the math right) was a sign of bias and overreach by the monitor and a sign of incompetence. (I may be conflating some of your arguments with Steve Eisenberg's, if so, I apologize). I suppose it's possible that you're not a fanboi and you just don't believe that the government has any business trying to enforce anti-trust legislation and therefore anything the government and its agents do here is wrong.

And yes, we will see what the appeals court will do. I think Apple will fail, although I will admit I am biased, I've wanted them to fail from the day the case was filed.