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Apple Moves to End ‘Unconstitutional’ Antitrust Monitoring in E-Books Case

Apple Moves to End ‘Unconstitutional’ Antitrust Monitoring in E-Books Case

Apple last week made moves to halt the “unconstitutional” compliance monitoring that has been imposed upon it as part of the government’s e-book antitrust lawsuit. Meanwhile, the Department of Justice defended the monitor’s actions, and urged that the oversight continue.



Michael Bromwich, the third-party monitor assigned to the case by presiding Judge Denise Cote, “is conducting a roving investigation that is interfering with Apple’s business operations, risking the public disclosure of privileged and confidential information, and imposing substantial and rapidly escalating costs on Apple that it will never be able to recover,” Apple’s lead appeals counsel Theodore Boutrous argued in the company’s motion. The documents were first noticed by Fortune’s Roger Parloff.

In the court filings by Apple, the company wants to immediately suspend the portion of the judgement that authorizes Bromwich’s hiring, pending the company’s appeal of the guilty verdict in the case. The other orders in the judgement, which include staggered renegotiation of contracts with publishers, are not included in the filings.

Apple’s motion largely mirrors a complaint the company filed just after Thanksgiving in which it called into question Bromwich’s fee structure, in addition to the manner in which he was conducting the monitoring.

Apple says the court overstepped their constitutional authority by imposing the compliance monitor on them, and granting him investigative powers they say are not given to the court under Article III of the Constitution.

Apple’s counsel Boutrous also cites the “irreparable harm” being done by the distraction caused by Bromwich’s requests for interviews with Apple’s senior executives.

To no one’s surprise, the DOJ disagrees with Apple’s assessment of the situation, coming to the defense of Bromwich, and accusing Apple of engaging in “in a systematic and untoward campaign to publicly malign the External Compliance Monitor and prevent him from carrying out his responsibilities.” Federal antitrust lawyer Lawrence Buterman added that Bromwich’s conduct has been “at all times appropriate and consistent with his impeccable reputation.”

Buterman also said Apple’s constitutional claims were a “misreading” of the original injunction, and are “wholly without merit,” saying, “Plaintiffs submit Apple’s application for a stay can be denied summarily.”

Judge Cote will hear both side’s oral arguments on the motion on January 13, 2014.