Apple gripes about antitrust monitoring

[bgalbrecht]

Originally Posted by pwalker8

"During the argument, it became apparent that the parties differed considerably regarding the proper interpretation of the order as to the scope of the monitor’s duties, particularly with respectto two questions: First, whether the monitor was empowered to demand access to any document,and to interview Apple executives with respect to any subject, without limitation, and without regard to the relevance of such documents or subjects to the specific purpose of the monitorship. Second,whether the monitor had the authority to investigate new violations of anti-trust laws (or, for that matter, any unlawful conduct), or if the order limited the monitor to determining whether Apple had instituted appropriate compliance programs and taken steps to ensure that those programs were effectively communicated to Apple’s officers and employees."

These were all things that Bromwich had asserted that he could do and that Apple said that he could not and were the crux of what Apple was complaining about. (well, that, Bromwich's rates and Bromwich going out of his way to be a royal pain, but the ruling does not address the later two. I have no idea if Apple can sue Bromwich for return of the payment if they win the appeals)

In the next paragraph the court basically said that since the Counsel for the government conceded that Apple's interpretation of the order is correct, there was no need to grant the stay.

I repeat again, these sort of things tend to be very narrowly defined.

Is that actually what Bromwich claimed, or is that what Apple claimed Bromwich was doing?

[Graham]

Originally Posted by bgalbrecht

Is that actually what Bromwich claimed, or is that what Apple claimed Bromwich was doing?

Exactly. We should also recall that Bromwich made just two visits and conducted just 13 hours of interviews. Only four Apple employees other than their lawyers were questioned.

Graham

[PatNY]

TeleRead's viewpoint:

"Note that bit in there explicitly recognizing that “the monitor was empowered […] to interview Apple directors, officers, and employees” as part of his job. Apple partisans might try to spin this “limitation” as a victory, but all the appeals court really did is restate the limitations that were already in effect from Judge Cote’s final order (PDF). From that perspective, it’s hard to see this as anything more than another in a series of total legal losses for Apple, and perhaps a sign that the court is inclined not to find fault with the way Cote is doing things as of yet."

http://www.teleread.com/ebooks/appea...trust-monitor/

It's odd that anyone would claim Bromwich wanted to investigate new violations of anti-trust law when Judge Cote's original judgment pertaining to the monitor, dating back to September 5th of last year, specifically barred that. Here is the section of her ruling from last year which covers that:

"If the External Compliance Monitor in the exercise of his or her responsibilities under this Section VI discovers or receives evidence that suggests to the External Compliance Monitor that Apple is violating or has violated this Final Judgment or the antitrust laws, the External Compliance Monitor shall promptly provide that information to the United States and the Representative Plaintiff States. The External Compliance Monitor shall take no further action, including seeking information from Apple pursuant to Section VI.G of this Final Judgment, to investigate any such potential violation of the Final Judgment or the antitrust laws."

So, that is proof that nothing has changed. The limitation already existed back then. What the appellate court just said is that they agree with the DOJ's interpretation of Cote's order, which was left to stand.

Apple knows they lost the appeal, which is why they will likely not issue a statement about the ruling. Or if they give one, they are not so delusional as to claim any victory from what is clearly a defeat.

--Pat

[pwalker8]

Originally Posted by bgalbrecht

Is that actually what Bromwich claimed, or is that what Apple claimed Bromwich was doing?

According to his response filed with the court and available online, yes, he asserts the right to question all members of the board, any upper level managers he sees fit and the ability to engage in background interviews which are not limited to anti-trust compliance.

[PatNY]

Originally Posted by pwalker8

According to his response filed with the court and available online, yes, he asserts the right to question all members of the board, any upper level managers he sees fit and the ability to engage in background interviews which are not limited to anti-trust compliance.

No, he didn't state that. He stated he has the right to question board members and top executives for matters which fall within the "scope of the Final Judgment," and the Final Judgment from Cotes stated the monitor's activities were only to encompass anti-trust matters.

If you believe otherwise, provide the full salient quote(s) from Bromwich's response.

--Pat

[Sil_liS]

Originally Posted by pwalker8

No, actually not. What they said was that as long as Bronwich stays within the narrowly defined bounds, then Apple will not receive any lasting damage and thus a stay is not appropriate.

Here is the first paragraph of the order which explains what the issue is

"During the argument, it became apparent that the parties differed considerably regarding the proper interpretation of the order as to the scope of the monitor’s duties, particularly with respectto two questions: First, whether the monitor was empowered to demand access to any document,and to interview Apple executives with respect to any subject, without limitation, and without regard to the relevance of such documents or subjects to the specific purpose of the monitorship. Second,whether the monitor had the authority to investigate new violations of anti-trust laws (or, for thatmatter, any unlawful conduct), or if the order limited the monitor to determining whether Apple had instituted appropriate compliance programs and taken steps to ensure that those programs wereeffectively communicated to Apple’s officers and employees."

These were all things that Bromwich had asserted that he could do and that Apple said that he could not and were the crux of what Apple was complaining about. (well, that, Bromwich's rates and Bromwich going out of his way to be a royal pain, but the ruling does not address the later two. I have no idea if Apple can sue Bromwich for return of the payment if they win the appeals)

In the next paragraph the court basically said that since the Counsel for the government conceded that Apple's interpretation of the order is correct, there was no need to grant the stay.

I repeat again, these sort of things tend to be very narrowly defined.

Yes, these things are narrowly defined and the government stated this from the beginning:

Counsel for the government, also representing the state appellees for purposes of theargument, explicitly stated that the district court’s order should be interpreted narrowly.

The decision means that the monitor worked under the narrowly defined boundaries. Apple insisted that the monitor has overstepped the boundaries and the court decided that they were wrong.

[pwalker8]

Believe what you wish. I can point to articles that paint this as a vindication of Apple

http://online.wsj.com/news/articles/...n_AboveLEFTTop

Not terribly surprising given that the WSJ has viewed the case with extreme skepticism from the start.

As I said in an earlier post, what the prosecution said in front of the appeals court was rather different that what they were asserting to Apple or in the press. If Bromwich had acted within the limitations described by the appeals court to begin with, Apple would probably not have appealed the stay denial. And no, the government did not state this from the beginning. I've already linked to the court document where Bromwich asserts that he can talk to anyone at Apple about anything he wishes.

Of more interest to me was an article behind a paywall that predicted the ruling on the day of the hearing based on what was said at the hearing.

http://www.law360.com/articles/506965

Sometimes it's necessary to understand what is actually happening and what the purpose of the various steps of the process before you can determine winners and losers. Apple went into the hearing wanting to make sure that Bromwich would not be allowed to act as a roving special investigator for Judge Cote and that's what they got.

[Graham]

Originally Posted by pwalker8

I've already linked to the court document where Bromwich asserts that he can talk to anyone at Apple about anything he wishes.

Please could you highlight that post? I've had a dig through your posts on this thread and can't find it - though I've only looked at the ones that seemed relevant to Bromwich.

I thought we were referring here to the document that Bromwich provided in response for this appeal court hearing, which can be read here (the middle one of the three documents presented):

http://allthingsd.com/20131129/apple...-70000-a-week/

In it, Bromwich states very clearly:

I advised [Apple] that I felt it was important to conduct a set of initial meetings and interviews with company executives and members of the Board to introduce myself, lay the foundations for our relationship, and learn some basic facts about the company's compliance framework.

These are the meetings that were turned down, and were clearly well within the remit of the Court's Final Judgement. I can't see anywhere in Bromwich's letter where he asserts that he has the authority to investigate 'anything he wishes', or indeed any matters outside of dealing with compliance or compliance training schemes.

Graham

[Graham]

Originally Posted by pwalker8

Apple went into the hearing wanting to make sure that Bromwich would not be allowed to act as a roving special investigator for Judge Cote and that's what they got.

That's an extraordinary interpretation, given that Judge Cote explicitly ruled out such behaviour, as highlighted in PatNY's quote from the original ruling, six posts above this.

Graham

[Sil_liS]

Originally Posted by pwalker8

Believe what you wish. I can point to articles that paint this as a vindication of Apple

http://online.wsj.com/news/articles/...n_AboveLEFTTop

Not terribly surprising given that the WSJ has viewed the case with extreme skepticism from the start.

As I said in an earlier post, what the prosecution said in front of the appeals court was rather different that what they were asserting to Apple or in the press. If Bromwich had acted within the limitations described by the appeals court to begin with, Apple would probably not have appealed the stay denial. And no, the government did not state this from the beginning. I've already linked to the court document where Bromwich asserts that he can talk to anyone at Apple about anything he wishes.

Of more interest to me was an article behind a paywall that predicted the ruling on the day of the hearing based on what was said at the hearing.

http://www.law360.com/articles/506965

Sometimes it's necessary to understand what is actually happening and what the purpose of the various steps of the process before you can determine winners and losers. Apple went into the hearing wanting to make sure that Bromwich would not be allowed to act as a roving special investigator for Judge Cote and that's what they got.

Linking to articles that are behind paywalls doesn't add support to your claims. Quote the relevant paragraphs if you want to make a point. As Graham said there has been no link to Bromwich making that assertion but documents can be quoted for the opposite.

The reason why Apple is making a fuss about this can be easily seen if you look at what was said in the second article that you linked to on the thread:

An Apple inhouse attorney, Kyle Andeer and, later, its lead outside appellate counsel, Ted Boutrous of Gibson Dunn, each pushed back -- first gently, but later more pointedly. They said they saw no need for either Bromwich's rush or for the wide-ranging battery of interviews he sought, since, as they read the final judgment, the monitor would have nothing to review or evaluate until Apple finished drafting its new compliance and training procedures, which weren't due till January 14, 2014 -- 90 days after Bromwich's appointment.

Apple was supposed to work with the monitor and have the drafts a month ago.

[bgalbrecht]

Originally Posted by pwalker8

Believe what you wish. I can point to articles that paint this as a vindication of Apple

http://online.wsj.com/news/articles/...n_AboveLEFTTop

Not terribly surprising given that the WSJ has viewed the case with extreme skepticism from the start.

So you're telling us that we should consider this rejection of Apple's appeal a vindication because a newspaper that has always been critical of the DOJ's case posts an opinion saying so? Unfortunately, this opinion is also behind a paywall.

[Shane R]

What Judge Cote wrote in her judgement against Apple and what she instructed the monitor to do were at odds. The appeals court has instructed her and the monitor to stick to what her original judgement was.

It also appears that Apple had no objection to the antitrust monitor being in her original judgement, as it excepted it from appeal:

Evidently judging that it could live with such a monitor, Apple initially failed to seek a stay when it appealed all of Judge Cote's antitrust findings and orders in October.

But later that month, when monitor Bromwich began his work, he began seeking interviews with Apple's entire executive team and its entire board of directors. The breadth of these inquiries shocked Apple, since few of these officials had any direct involvement with antitrust compliance issues.

In defending the monitor's far-reaching requests after Apple challenged them, Judge Cote explained in a ruling last month that the monitor was not simply supposed to assess the adequacy of the compliance program "in the abstract," but also whether it would be adequate "for Apple," given her view that Apple's culture was peculiarly recalcitrant and indifferent to the antitrust laws. Accordingly, both she and Bromwich -- with whom she had discussed the monitorship while interviewing him for the job -- believed that a permissible part of his job was to scope out Apple's "tone" and "culture." Thus, as Bromwich told astonished Apple representatives at one point, he wanted to "crawl inside [the] company."

Instead, the judges apparently decided that so long as they clarified the language of Judge Cote's monitorship order -- which had included some broad wording that allowed Bromwich to demand "any document" or interview "any official" at Apple -- Apple would at least not face any "irreparable harm" of the sort that would warrant a stay pending appeal.

Accordingly the panel, in a so-called per curiam decision -- one that is not signed by any one judge -- interpreted Judge Cote's order to be reined in by certain concessions made by Justice Department appellate attorney Finnuala Tessier during oral argument.

http://features.blogs.fortune.cnn.co...ple-antitrust/

[Graham]

Originally Posted by Shane R

What Judge Cote wrote in her judgement against Apple and what she instructed the monitor to do were at odds. The appeals court has instructed her and the monitor to stick to what her original judgement was.

Please give us any link - other than an opinion piece such as the blog in your post - which shows that either Judge Cote instructed the monitor to do something that wasn't in her original judgement, or that Bromwich actually did anything that wasn't in her original judgement.

For evidence to the contrary, please see the links we have posted above over the last couple of pages of posts.

Graham

[DiapDealer]

Curious as to whether or not entities such as The Wall Street Journal, or Forbes, or Fortune have ever (or will ever) speak out in favor of the DOJ in matters of antitrust? It hardly seems likely to me.

[jgaiser]

Originally Posted by Shane R

What Judge Cote wrote in her judgement against Apple and what she instructed the monitor to do were at odds. The appeals court has instructed her and the monitor to stick to what her original judgement was.

Cool... Another Apple apologist. Just what we need. Things have been too quiet around here.