Apple gripes about antitrust monitoring

[Greg Anos]

Because a court order becomes a separate issue itself. Same as a contempt of court situation. You can be found innocent of the charges at the trial, but if you flaunt the rules of the court at the trial, you can still be put in jail for flaunting the rules. Flaunting the rules is a separate issue from that of the trial itself.

Conrad Black either failed to grasp that reality, or thought he was above the law of the court. Either way, he paid the penalty for his actions.

[Greg Anos]

Originally Posted by pwalker8

Actually, if you read the order, that isn't what was said at all. Here is the relevant part

" In addition, we take counsel's statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal."

Thus they are saying that they will leave the monitor in place pending the appeal, but that he has to stay in the narrow bounds of monitoring the compliance, i.e. no more demands to talk to people having nothing to do with ebooks. This is probably as good as Apple could expect. They got everyone to agree that their interpretation was correct, and that the monitor didn't have a carte blanche to do whatever he wanted.

One thing to keep in mind that this was an appeal for the request for a stay, not the appeal of the ruling itself. It's a very narrow point and does not address anything other than whither or not Judge Cote legally has the right to appoint the monitor and what his duties were. There was never a doubt that Cote had the legal authority to appoint the monitor, but lots of doubt about his authority and duties. I'm pretty sure that the actual appeal of the findings hasn't been heard yet and probably won't be for a while.

I didn't say anything about the details of the ruling. I stated that the appeal for a stay was properly heard and ruled upon. The monitor is limited, but valid. Apple must pay for the monitor and tolerate his presence, and answer his questions and listen to what he says, within the limits ascribed by the appellate ruling, up to and until the underlying case is heard by the appellate Court.

I don't want to hear any complaints about judicial overreach, or unfairness, or harming Apple's competitiveness.

Properly heard, and ruled on.

<Bangs gavel three time>. Next case!!!

[PatNY]

This was a clear victory for the DOJ and Cote. The appeals court did not change one single thing concerning the parameters of Bromwich's role already outlined by Cote previously. They simply reiterated the restrictions Cote had already set.

Therefore, further attempts by Apple to stop Bromwich from interviewing top executives such as Ive will not be tolerated.

Evidently, the court didn't buy into Apple's arguments about business harm and interruption of business activities if Bromwich continued on with his activities.

--Pat

[Sil_liS]

Originally Posted by pwalker8

Actually, if you read the order, that isn't what was said at all. Here is the relevant part

" In addition, we take counsel's statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal."

Thus they are saying that they will leave the monitor in place pending the appeal, but that he has to stay in the narrow bounds of monitoring the compliance, i.e. no more demands to talk to people having nothing to do with ebooks. This is probably as good as Apple could expect. They got everyone to agree that their interpretation was correct, and that the monitor didn't have a carte blanche to do whatever he wanted.

One thing to keep in mind that this was an appeal for the request for a stay, not the appeal of the ruling itself. It's a very narrow point and does not address anything other than whither or not Judge Cote legally has the right to appoint the monitor and what his duties were. There was never a doubt that Cote had the legal authority to appoint the monitor, but lots of doubt about his authority and duties. I'm pretty sure that the actual appeal of the findings hasn't been heard yet and probably won't be for a while.

Nobody said that the monitor had a carte blanche to do whatever he wanted. But the things that he wanted fell under the narrow bounds of monitoring the compliance. Talking to senior executives and board members particularly is necessary.

[Graham]

Originally Posted by pwalker8

i.e. no more demands to talk to people having nothing to do with ebooks.

Actually, the order says nothing about restricting his activities to ebooks. The court agrees that he should only ask for talks with people with regard to his authorised responsibility:

Thus, according to appellees, the monitor was empowered to demand only documents relevant to his authorized responsibility as so defined, and to interview Apple directors, officers, and employees only on subjects relevant to that responsibility. We agree with that interpretation of the district court’s order.

and that responsibility is defined just above as:

the injunction allowed the monitor to assess the appropriateness of the compliance programs adopted by Apple and the means used to communicate those programs to its personnel.

i.e. nothing to do with ebooks specifically, but to do with compliance programs generally.

What both sides have reaffirmed is that Bromwich does not have the authority to actively look for compliance violations. But I don't believe he has ever been accused of doing that.

Graham

[bgalbrecht]

Originally Posted by pwalker8

Actually, if you read the order, that isn't what was said at all. Here is the relevant part

" In addition, we take counsel's statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal."

Thus they are saying that they will leave the monitor in place pending the appeal, but that he has to stay in the narrow bounds of monitoring the compliance, i.e. no more demands to talk to people having nothing to do with ebooks. This is probably as good as Apple could expect. They got everyone to agree that their interpretation was correct, and that the monitor didn't have a carte blanche to do whatever he wanted.

That's not what the order said, and by repeating the government's position about

"ensur[es] not just that [Apple] ha[s] an anti-trust compliance program in place but [that Apple's] employees particularly, senior executives and board members are being instructed on what those compliance policies mean and how they work"

they made it perfectly clear that Bromwich could talk to anyone he wanted to about the compliance program, especially senior management, even if it doesn't appear that they have direct involvement with ebooks (for example, members of the board).

[pwalker8]

Originally Posted by Graham

Actually, the order says nothing about restricting his activities to ebooks. The court agrees that he should only ask for talks with people with regard to his authorised responsibility:



and that responsibility is defined just above as:



i.e. nothing to do with ebooks specifically, but to do with compliance programs generally.

What both sides have reaffirmed is that Bromwich does not have the authority to actively look for compliance violations. But I don't believe he has ever been accused of doing that.

Graham

You have to look at the ruling in the context of what was actually being appealed and what was argued in the court. Appeal rulings tend to be very narrow and only concerned with what specifically is being appealed.

Here is a fairly good review of what the ruling actually means

http://www.mercurynews.com/business/...itrust-monitor

In their appeal, Apple did indeed accuse Bromwich of "a broad and amorphous inquisition". Bromwich himself asserted that there was no real limit on what he could demand, something the three judges found very troubling. Lynch telegraphed this ruling when he asked Apple's lawyer if "it would be acceptable if the 2nd Circuit spelled out the limits of Bromwich's duties while the appeals process proceeds. "

It is also interesting to note that what is said to the press, and what is said in court, in front of the judges are two different things. The prosecutor wasn't nearly as assertive in front of the judges as he was in the press.

[pwalker8]

Originally Posted by bgalbrecht

That's not what the order said, and by repeating the government's position about they made it perfectly clear that Bromwich could talk to anyone he wanted to about the compliance program, especially senior management, even if it doesn't appear that they have direct involvement with ebooks (for example, members of the board).

No, it didn't. I think some of you are spinning this according to what you want it to mean rather than in the context of what was being argued. They made it very clear that Bromwich is on a tight leash. I expect that he won't be demanding any more interviews with Johnny Ive or Al Gore, or access to any and all Apple documents and if he does, this may get revisited.

[DiapDealer]

Everyone always thinks they're more objective than everyone else is being. It rarely turns out to be true.

[Barcey]

Originally Posted by robko

Is it just me or is that really confusing when you have "appellees", "appellants" and "Apple" as the appellant?

This case reminds me of one Conrad Black (newspaper barron) who still complains that he should not have been found guilty and served jail time for obstruction of justice for removing records from his office, explicitly against a court order, because he was found not guilty of some of the fraud charges the court order related to. His theory is that if he was found not guilty he couldn't have obstructed justice .

The problem is that you're comparing Apples and appellants but you should be comparing "Apple"s and "Orange"s.

Spoiler:

In 2011 Orange was fined 27.6 million Euros for anticompetitive practices.

[Sorry there seemed to be a joke hidden in there somewhere but I just couldn't extract it.]

[PatNY]

The appellate court did not change any of the parameters for Bromwich which did not exist beforehand as expressed in Cote's prior orders. The leash he is on now existed prior to this ruling.

If Bromwich feels Ive or Gore is relevant to his monitoring, he can still go ahead and interview them. The court did not exempt board directors, and in fact mentioned them as fair game for interviews.

--Pat

[Sil_liS]

Originally Posted by pwalker8

No, it didn't. I think some of you are spinning this according to what you want it to mean rather than in the context of what was being argued. They made it very clear that Bromwich is on a tight leash. I expect that he won't be demanding any more interviews with Johnny Ive or Al Gore, or access to any and all Apple documents and if he does, this may get revisited.

You are mistaken. Bromwich has to interview senior executives and board members because he has to ensure that they "are being instructed on what those compliance policies mean and how they work."

[Graham]

Originally Posted by pwalker8

Here is a fairly good review of what the ruling actually means

http://www.mercurynews.com/business/...itrust-monitor

In their appeal, Apple did indeed accuse Bromwich of "a broad and amorphous inquisition".

That link is much the same as the other reviews in the press about the ruling. I can't see how it supports your suggestion that this only applies to ebooks.

Also, an accusation of "a broad and amorphous inquisition" is in no way an accusation that Bromwich was trying to uncover illegal anti-trust activity.

Graham

[bgalbrecht]

Originally Posted by pwalker8

No, it didn't. I think some of you are spinning this according to what you want it to mean rather than in the context of what was being argued. They made it very clear that Bromwich is on a tight leash. I expect that he won't be demanding any more interviews with Johnny Ive or Al Gore, or access to any and all Apple documents and if he does, this may get revisited.

IANAL, but I think you're the one with the spin. By repeating the purpose of the monitor, and saying that Apple was not entitled to a stay, the Appellate Court was clearly saying that Bromwich's role is appropriate, and that he has not exceeded his duties as the compliance monitor. If he had exceeded his duties, they would have either granted the stay or modified his role in their decision.

[pwalker8]

Originally Posted by bgalbrecht

IANAL, but I think you're the one with the spin. By repeating the purpose of the monitor, and saying that Apple was not entitled to a stay, the Appellate Court was clearly saying that Bromwich's role is appropriate, and that he has not exceeded his duties as the compliance monitor. If he had exceeded his duties, they would have either granted the stay or modified his role in their decision.

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.