Even though the Judge didn't act on the ex-parte conversations yet doesn't mean it wasn't part of the original agreement. I actually also read that she REMOVED that provision. Thus, it was part of the original scope.
The other part you are overlooking here is that Bromwich wasn't supposed to be on the clock. apple had until like mid January before the monitoring was to take effect. The time was for them to put their plans into place. Bromwich had no business interviewing anyone yet. period. If he chose to do it then it probably should have been on his own dime.
The judge solely based her entire ruling on he interpretation of Eddie Cue. She went with that there was a conversation that took place between all book publishers and Apple No evidence was presented to prove it. She just thought Eddie Cue was lying. I read all the info that was presented day by day. Fortune 2.0 posted great recaps each and every day. The evidence was overwhelmingly sided in Apples favor. All of the DOJ witnesses fell apart. Including the liars from Google and Amazon whose stories all turned from what they gave in that "pre-trial" evidence. In addition, Apple is a vertical not horizontal player. While there could be collusion between all the publishers and they can do it via a mechanism that Apple supplies, does not make it anti-trust. It is unheard of for a vertical player, to be accused on an anti-trust violation. This is why this will also be overturned.
Lets also not forget the fact that Amazon held a 90+% marketshare over the e-book market by selling below cost. Remember Amazzon started solely as a bookstore. It cut the price of best sellers by 30% and forced other retailers to do the same. This put all the mom and pop and major bookstores out of business. It then developed its own e-reader and with the clout, forced publishers to go along and make e-books. Amazon then sold those e-books at a loss. Customers would then flock to e-books and that was cannibalizing hardcover book sales of NYT bestsellers. This was where the publishers made their money. This was Amazons end game. Kill the hardcover books and have the only viable e-reader in town and thus corner the market. They were pretty much there. I'm sure taking over the entire publish industry would have been the next phase. The publishers had no clout and could not make any demands from Amazon. Even if they wanted to raise their price, Amazon would sell for a loss and kill of their profit making source of hardcovers. If a publisher tried to window (i.e. hold distribution of e-books for a period of time to sell hardcovers) Amazon put the pressure on that they would remove all their books. Why were they never prosecuted.
Now the sole fact that Apple had an alternative, ibookstore, meant that the publishers knew they might have some clout at Amazon. But, that doesn't mean that there was collusion between all parties. The publishers could have colluded on their own or just accepted Apples terms independently knowing what the benefits would be for them. Going back to the case. Many of the publishers argued the Favored Nations Clause. This was all proven in court. If they all colluded then why would this be the case? In addition, it was also proven that Apple had to negotiate over months each and every publishers agreement. If they all colluded wouldn't this have been a slam dunk?
Sorry but opinions were made up in this case by the judge and then she went with her opinions vs. the facts that were presented. To top it off, the whole curx of the argument was that Apple increased pricing. However, it has come to light that the avg price of e-books have been falling ever since the iBookstore went live. This also goes to show it was a bogus claim and you can bet this will come up in the re-trial.
Just to leave one last tid bit. Apple has only been found guilty in one part of the process. by a sole judge. They have the right to appeal, which they did. If they are found not guilty is your view of the judge then going to change?