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Judge orders Apple and antitrust monitor to play nice

Judge Denise Cote yesterday published a ruling elucidating her decision to deny Apple's request to have antitrust monitor Michael Bromwich removed. Apple, if you recall, took umbrage with Bromwich's excessive fees (more than US$1,000/hr), his desire to confer with Apple employees like Jony Ive who are far removed from anything antitrust related and a number of other actions that led Apple to conclude that Bromwich wasn't an impartial party.

Cote's ruling explained that many of the arguments laid out by Apple have since become "moot," while also adding that Apple didn't make a strong showing that keeping Bromwich in his position would cause Apple irreparable harm.

Taking an optimistic slant, Cote writes that she hopes Apple and Bromwich can start over with a clean slate.

The deterioration of the relationship between Apple and the Monitor is unfortunate and disappointing. Hopefully, that relationship can be "reset" and placed on a productive course. But it is strongly in the public's interest for the Monitor to remain in place.

Now, it's worth pointing out that appointing an external monitor in the first place, in the eyes of many, seemed extremely heavy handed. Cote, however, and for whatever reason, seemed to treat Apple as a company in dire need of serious punishment for not taking the antitrust accusations as seriously as she would have hoped.

Cote, for example, previously wrote that she would have preferred Apple "adopt a vigorous in-house antitrust enforcement program..." thereby making the appointment of an external monitor wholly unnecessary.

But when Apple subsequently disclosed its plan to enhance its antitrust compliance program with a special antitrust legal department, Cote wasn't impressed. Cote noted at the time that there was "no showing of institutional reforms to ensure that its executives will never engage again in such willful and blatant violations of the law."

But what I find particularly troubling about Cote's ruling is that it seemingly glosses over many of Apple's valid complaints. Again, Cote conveniently trots out the argument that because many of Apple's concerns are now moot, there is nothing for Apple to be worried about.

For example, recall that Apple had 90 days under which to implement internal antitrust safeguards. Bromwich, however, decided to begin his investigation as early as November where he demanded to meet with Apple bigwigs like Ive and Al Gore. He also demanded to see the weekly schedules of Apple employees who claimed that they didn't have the time to meet with him when he desired.

That type of behavior is understandably worrisome from Apple's perspective. But not to Cote, who takes the position that because the 90-day period has since passed (as of this week), Apple's argument falls flat.

In its motion for a stay, Apple argued that the Injunction did not authorize the Monitor to conduct interviews during the first ninety days of his appointment. That ninety day period has now passed, and any complaints regarding it are now moot and could provide no basis for a motion for a stay.

While technically true, doesn't Cote miss the larger picture here? Namely that Bromwich seems to be unjustifiably expanding the scope of his court-mandated role?

Cote, though, takes the position that Bromwich was well within his means to begin his appointment before the 90-day period so he could become familiar with Apple personnel and "relevant aspects of the company" and its procedures.

In any event, should Apple take issue with Bromwich's behavior going forward, Cote writes that there are now dispute-resolution mechanisms in place to address any concerns that arise.

And then there's this doozy of a statement.

While Apple would prefer to have no Monitor, it has failed to show that it is in the public interest to stop his work. If anything, Apple's reaction to the existence of a monitorship underscores the wisdom of its imposition.

A little self-serving, wouldn't you say? It's quite the stretch to state that any objections Apple has is de facto proof that Cote's appointment of her good friend Bromwich was a wise choice.

The full ruling is available here courtesy of AppleInsider.

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