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US DOJ argues against Apple motion to remove e-book antitrust monitor

post #1 of 37
Thread Starter 
In an opposition filing on Friday, the U.S. Department of Justice argues that Judge Denise Cote acted within her power when she assigned an external antitrust monitor to Apple, recommending the company's appeal have the monitor removed be denied.

Summation
Apple's closing slide in its e-book antitrust case. | Source: U.S. District Court


According to the filing, the DOJ argues Judge Cote's court did not overstep its bounds by assigning external compliance monitor Michael Bromwich to Apple after the company was found culpable in an e-book price fixing case last year. The document was first spotted by CNET.

From Friday's filing:

In any event, the district court did not exceed its authority in ordering an external monitor for Apple or abuse its discretion in declining to disqualify the selected monitor. Nor can Apple establish that it will be irreparably harmed by the monitorship. Finally, the public interest weighs firmly against any delay in the monitor's work.


Apple won a temporary reprieve on Tuesday when the U.S. Court of Appeals for the Second Circuit ordered a halt to the ECM's oversight pending appeal.

The DOJ argues that Apple has not shown "irreparable harm" by the ECM's presence, a stipulation needed to remove Bromwich from his monitorship. Even if Apple were able to prove such conditions, the government says a replacement monitor is called for, not a complete removal.

The filing is the latest development in an ongoing kerfuffle between the Apple and its court-appointed antitrust compliance monitor Michael Bromwich. After finding Apple culpable in an e-book price fixing scheme, Judge Cote appointed Bromwich to ensure the company's current and future dealings are above board.

Apple and Bromwich have been butting heads since the monitorship began. The company has accused Bromwich of conducting an unconstitutional wide-roving inspection atypical of a monitorship.

In December, Apple filed a motion to suspend the "inquisitorial" nature of Bromwich's assignment. Aside from his actions, Bromwich is also charging exorbitant fees to the tune of over $70,000 per week, Apple said.

Judge Cote denied Apple's request to remove the ECM earlier in January, prompting Apple to take its case to appeals court.

post #2 of 37
Wow Just wow, the DOJ sure has a real issue with apple. They should just shut up and wait for the case with the appeals court to rule. What a bunch of buffoons.
post #3 of 37
Quote:
Originally Posted by Mechanic View Post

Wow Just wow, the DOJ sure has a real issue with apple. They should just shut up and wait for the case with the appeals court to rule. What a bunch of buffoons.

What, you'd rather have the DOJ immediately appeal the current appeal if it gets overturned? It's much better to get it all done at once. Let everyone have their say and then make a ruling instead of playing whack-a-mole with appeals on both sides.

post #4 of 37
Quote:
Originally Posted by Mechanic View Post

Wow Just wow, the DOJ sure has a real issue with apple. They should just shut up and wait for the case with the appeals court to rule. What a bunch of buffoons.

 

They're doing the job required of them. Let the system work itself out.

post #5 of 37

I think Apple was originally sued by DOJ.  So how could DOJ tell the Circuit Court what to do?  DOJ is not a neutral party. 

post #6 of 37
Holder's team is absolutely out of control. And, he's one pathetic, clueless bureaucrat.
1oyvey.gif
post #7 of 37
Dear Senior Editor, there are a typos in the article.

Please replace all instances of DOJ with Amazon.

Thank You.
post #8 of 37
Hey, if there is any appearance of impropriety, real or not, (and there certainly is), they should assign a new one, at minimum.
Quote:
Originally Posted by AppleSauce007 View Post

Dear Senior Editor, there are a typos in the article.

Please replace all instances of DOJ with Amazon.

Thank You.

Ha!!
post #9 of 37
Quote:
Originally Posted by AppleInsider View Post

The DOJ argues that Apple has not shown "irreparable harm" by the ECM's presence, a stipulation needed to remove Bromwich from his monitorship. 

They have to show "irreparable harm?" That seems like an awfully high bar. Too bad it can't be "extremely annoying." :p

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post #10 of 37
There's certainly something rotten in Denmark (Washington). This tiresome fiasco reeks of government corruption and bureaucratic nonsense at the highest levels.
post #11 of 37

Whether Judge Denise Cote "acted within her power when she assigned an external antitrust monitor to Apple" is an interesting question, but not nearly as interesting as whether she's entitled to assign her hand-picked crony for the monitor job (and a wholly unqualified crony at that).

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post #12 of 37
DOJ: Amazon contributed a lot of money so Apple is guilty. We must allow Amazon to have a monopoly with barriers to entry.
post #13 of 37
Unqualified crony who hires another to do his job and charge outrageous fees and who happens to be a very good friend of Cote. Something very wrong here with that DOJ.
Also the fact that Cote said BEFORE the trial started that Apple was guilty and then ruled as such even though there was plenty of evidence against it overwhelming in fact. Something wrong with that too. Cote is just a paid puppet, not a real judge. The appeals court already sees it with just one meeting. DOJ is NOT gonna win the appeals court over I don't think.
Also the fact that ebooks were priced higher until Apple came onto the market and then dropped to as low as $4.95 from $19.95 before they came into the market. Tell me how Apple made the market bad getting ebooks down to really affordable levels.
post #14 of 37
Quote:
Originally Posted by John.B View Post
 

Whether Judge Denise Cote "acted within her power when she assigned an external antitrust monitor to Apple" is an interesting question, but not nearly as interesting as whether she's entitled to assign her hand-picked crony for the monitor job (and a wholly unqualified crony at that).

Exactly. I don’t think Apple oppose the idea of a monitor per se (okay maybe a bit), it’s just the choice of monitor that is the problem.

post #15 of 37

I still don't get why the monitorship even started prior to the January compliance date. This is one of the most bizarre cases I've ever seen.

post #16 of 37
Quote:
Originally Posted by AppleInsider View Post

The DOJ argues that Apple has not shown "irreparable harm" by the ECM's presence, a stipulation needed to remove Bromwich from his monitorship. Even if Apple were able to prove such conditions, the government says a replacement monitor is called for, not a complete removal.

 

So if I robbed a bank of $140,000, I shouldn't be charged because the bank hasn't suffered "irreparable harm".

 

Is that how this works?

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post #17 of 37
I'm not a lawyer, but it seems to me that the scope of the monitor should just be the contracts Apple signs with book publishers, right? I don't understand why he would need to even interview any employees besides the person in charge of iBooks store and the lawyers at Apple that drafted the contracts. What legal reason would he have to interview anybody else?
post #18 of 37
Quote:
Originally Posted by hill60 View Post
 

 

So if I robbed a bank of $140,000, I shouldn't be charged because the bank hasn't suffered "irreparable harm".

 

Is that how this works?

Bank robbery has literally nothing to do with whether a company monitor has overstepped his bounds.

post #19 of 37
Quote:
Originally Posted by anantksundaram View Post

Holder's team is absolutely out of control. And, he's one pathetic, clueless bureaucrat.
1oyvey.gif

If you think any of the visible officials are in control, you are one pathetic, clueless citizen.
post #20 of 37
Quote:
Originally Posted by Mechanic View Post

Wow Just wow, the DOJ sure has a real issue with apple. They should just shut up and wait for the case with the appeals court to rule. What a bunch of buffoons.

We would all like to believe they are singling Apple out, in reality what you are seeing play out here is what happens everyday when anyone who challenges the government authority, they came at you with all guns blazing. Our government does not like it when they are challenge and they do not care if what they are doing it justified or legal since their is no downside for being wrong, however, there is only upside since it show any one else not to challenge the government or else it will cost you, the issue with Apple is they have more money than most companies so does not matter to them to fight or not, it is not about cost which the government hope will cause the other side to think twice.

 

This was the obvious next step, since the government can not back down otherwise they would have to admit they were wrong and that will not happen.

post #21 of 37
Quote:
Originally Posted by DarkLite View Post
 

Bank robbery has literally nothing to do with whether a company monitor has overstepped his bounds.

 

$140,000 is a $140,000 mere peanuts to big banks and companies, right?

 

So the DoJ says that much money doesn't indicate irreparable harm...

 

...but $2 or $3 added to the cost of an eBook does.

 

Apple should take a leaf out of Amazon's book and advertise the reason for an extra charge on iBooks is to pay Bromwich. 

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post #22 of 37
Quote:
Originally Posted by Flaneur View Post

If you think any of the visible officials are in control, you are one pathetic, clueless citizen.

Yikes. Talk about clueless. I said Holder’s team is out of control. Who said anything about anyone ‘visible’!?

 

(Asking myself: Why bother with people who can’t process a simple sentence….)

post #23 of 37
Quote:
Originally Posted by HuskyOffset View Post

I'm not a lawyer, but it seems to me that the scope of the monitor should just be the contracts Apple signs with book publishers, right? I don't understand why he would need to even interview any employees besides the person in charge of iBooks store and the lawyers at Apple that drafted the contracts. What legal reason would he have to interview anybody else?

 

The scope of his position is to evaluate the antitrust policies and procedures in place at Apple. They're looking to ensure that Apple establishes a good internal training procedure and doesn't go into any similar arrangement in future.

post #24 of 37
Quote:
Originally Posted by hill60 View Post
 

 

So if I robbed a bank of $140,000, I shouldn't be charged because the bank hasn't suffered "irreparable harm".

 

Is that how this works?

 

From what I've read, Apple could have objected to fees but they chose not to use the dispute procedure laid out and instead filed for an emergency measure. I'm not a lawyer, but it appears that 'irreparable harm' is the standard for an emergency appeal against a court order.

post #25 of 37
Quote:
Originally Posted by anantksundaram View Post

Holder's team is absolutely out of control. And, he's one pathetic, clueless bureaucrat.
1oyvey.gif

 

Holder's DOJ itself, not just the anti-trust team, is awash in some kind of political calculus in all its doings. Sometimes they land on the right side of things like not prosecuting DOMA cases or not pursuing marijuana cases, even though they said if users or possessors of marijuana will still be pursued in states that make marijuana legal. Other times, well.

 

The most egregious things he's done is provided legal cover for Obama's drone strikes, really, provided legal cover for anything related to the war on terror, and to not prosecute any person, CEO, CFO involved in the 2008 mortgage securities scandals. The reasons given for not prosecuting are so ridiculous that Holder himself should be prosecuted for aiding and abetting in the defrauding of its citizens. The banking scandal cost Americans billions to trillions of dollars, increased the unemployment rate putting hundreds of thousands of Americans out of work, yet those responsible were bailed out; and, not one person was held responsible.

 

Not exactly sure what the political calculus for the e-books thing is, as small and runtish a market as it is. Maybe they even think they were protecting ebook buyers, but given the above, I don't think so.

post #26 of 37

Quote:

Originally Posted by ItsTheInternet View Post
 

 

The scope of his position is to evaluate the antitrust policies and procedures in place at Apple. They're looking to ensure that Apple establishes a good internal training procedure and doesn't go into any similar arrangement in future.

 

You're not saying anything different from HuskyOffset.

post #27 of 37
Quote:
Originally Posted by ItsTheInternet View Post

The scope of his position is to evaluate the antitrust policies and procedures in place at Apple. They're looking to ensure that Apple establishes a good internal training procedure and doesn't go into any similar arrangement in future.

Shut up.

That was not the case.
post #28 of 37
Quote:
Originally Posted by anantksundaram View Post

Yikes. Talk about clueless. I said Holder’s team is out of control. Who said anything about anyone ‘visible’!?

(Asking myself: Why bother with people who can’t process a simple sentence….)

". . . he's one pathetic, clueless bureaucrat."

I'm sure Holder knows very well what's going on with Apple, and the control is out of his hands. This is about an unseen larger issue. Or the probability of that is so high that, once again, your harsh judgment of an individual is misplaced, and ultimately, naive.
Edited by Flaneur - 1/26/14 at 3:14am
post #29 of 37
Quote:
Originally Posted by anantksundaram View Post


Shut up.

That was not the case.


No, that is exactly the case. That is his responsibility and the reason he is there.

post #30 of 37
Quote:
Originally Posted by THT View Post
 

Quote:

 

You're not saying anything different from HuskyOffset.

 

Uh, then perhaps you should re-read what they said. I was illustrating why despite the context, he has permission to interview any member or review any document.

post #31 of 37
Quote:
Originally Posted by ItsTheInternet View Post

The scope of his position is to evaluate the antitrust policies and procedures in place at Apple. They're looking to ensure that Apple establishes a good internal training procedure and doesn't go into any similar arrangement in future.

Hogwash. He's going on a fishing expedition. If the DOJ has proof of any other anti trust activities, they can sue. Absent of any evidence, they are over reaching.
post #32 of 37
Quote:
Originally Posted by jungmark View Post


Hogwash. He's going on a fishing expedition. If the DOJ has proof of any other anti trust activities, they can sue. Absent of any evidence, they are over reaching.

 

What exactly do you think he is fishing for? If he uncovered any evidence of any other anti-trust violations he couldn't do anything but report them to the court. He's not requested any documents out of his purvue and the main contention seems to be that he doesn't need to interview board members. Is that the argument you're using to justify 'fishing expedition'?

post #33 of 37
Quote:
Originally Posted by ItsTheInternet View Post

Uh, then perhaps you should re-read what they said. I was illustrating why despite the context, he has permission to interview any member or review any document.

You have not said anything different from HuskyOffset. Read your response to him again. All you were saying was that the monitor needed to review the antitrust compliance program, which was what HuskyOffset said.
Edited by THT - 1/26/14 at 3:15pm
post #34 of 37
Quote:
Originally Posted by ItsTheInternet View Post
 

 

What exactly do you think he is fishing for? If he uncovered any evidence of any other anti-trust violations he couldn't do anything but report them to the court. He's not requested any documents out of his purvue and the main contention seems to be that he doesn't need to interview board members. Is that the argument you're using to justify 'fishing expedition'?

 

He was requesting to speak with members of the executive team that had no involvement with iBooks or its deals; Jony Ives being one of them. Interviewing members of Apple, whether it is board members or executives not involved with iBooks, would be out of his purview. I also think part of the issue is that Apple didn't even need to be compliant until the order took effect in January and he was asking for meetings and documents way in advance with people not even tied to the trial or certain aspects of operating iBooks. That's fishing in my opinion.

 

That's not taking into account facts like how he has no experience in this field but was collecting a fee and had to hire outside help as well as tacking on an additional 15% administration fee. It's also not taking into consideration all the other things that have come to light, like the ex parte meetings that were going to take place between the judge and the monitor, with the judge pulling back after scrutiny. It's not even taking into consideration that the judge who appointed the monitor is not an impartial party to deciding whether he should be removed.

 

Considering all those facts and more, I think that is why this whole situation with the monitor has been put under an administrative stay and is now being addressed by the 2nd U.S. Circuit Court of Appeals in New York.

post #35 of 37
Quote:
Originally Posted by foad View Post
 

 

He was requesting to speak with members of the executive team that had no involvement with iBooks or its deals; Jony Ives being one of them. Interviewing members of Apple, whether it is board members or executives not involved with iBooks, would be out of his purview. I also think part of the issue is that Apple didn't even need to be compliant until the order took effect in January and he was asking for meetings and documents way in advance with people not even tied to the trial or certain aspects of operating iBooks. That's fishing in my opinion.

Both of those are entirely incorrect and have been discussed many times. The Monitor is there to evaluate Apple's antitrust training and policies. Nothing to do with the iBooks deal. He therefore can interview any relevant staff member and has put forward that meeting with the board members is how he's conducted previous monitorships.

 

Secondly, the idea that he's supposed to just sit around for 90 days doing no work then suddenly produce a report instantly is nonsense. Even Apple have dropped that contention.

post #36 of 37
Quote:
Originally Posted by ItsTheInternet View Post
 


No, that is exactly the case. That is his responsibility and the reason he is there.

But that is not reflected in his ever wider list of interview demands of people far removed from iBooks* (Al Gore???). And it doesn't address his seeming need to hire (and bill Apple for) another law firm to guide him through the legal issues of his monitorship.... One would have thought actual expertise in the subject to hand would have been on the list of criteria for getting chosen, apparently not.

 

* That being the issue of the litigation: "After finding Apple culpable in an e-book price fixing scheme, Judge Cote appointed Bromwich to ensure the company's current and future dealings are above board." In e-books, one would expect and not nanometer scale logic board design and implementation.

 

The injunction was focused on ebooks: http://www.reuters.com/article/2013/08/27/net-us-apple-ebooks-idUSBRE97M0OU20130827

 

As highlighted by Section V A here: where iBooks are specifically referenced. http://www.scribd.com/doc/166019353/US-v-Apple-Injunction "relating to Apple's iBookstore".


Edited by jfc1138 - 1/27/14 at 12:36pm
post #37 of 37
Quote:
Originally Posted by ItsTheInternet View Post

What exactly do you think he is fishing for? If he uncovered any evidence of any other anti-trust violations he couldn't do anything but report them to the court. He's not requested any documents out of his purvue and the main contention seems to be that he doesn't need to interview board members. Is that the argument you're using to justify 'fishing expedition'?

 

The nature of a fishing expedition is that they don't know what they're looking for and won't know if and until they find it.  He seems to think he can request any document or interview any person affiliated with Apple, for any reason.  That's actually the reason Apple filed this motion.

 

N.B.  Bromwich is working for the same "judge" that found Apple guilty before the trial began...

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