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Court shoots down Apple motion to rein in e-books antitrust monitor

post #1 of 72
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Apple's latest attempt to rein in e-books antitrust monitor Michael Bromwich has been denied, with the federal appeals court hearing the case saying the company failed to present evidence of irreparable harm.

Bromwich
Michael Bromwich | Source: ZUMA Press via mnn.com


The U.S. Court of Appeals for the Second Circuit filed an order on Monday denying Apple's motion to halt Bromwich's operations until the court hands down a ruling on a request to remove the external compliance monitor. The decision, first spotted by Reuters, comes less than a week after initial arguments began earlier in February.

According to the ruling, Apple failed to adequately prove that Bromwich was overextending in the scope of his investigation and was thus causing irreparable harm to the company. As noted by the DOJ's counsel, the monitorship applied only to documents and interviews relevant to an authorized responsibility laid out by District Court Judge Denise Cote.

The three-judge panel did, however, reinforce the narrow scope of Apple's monitorship. Apple executives and board members are to be instructed on the antitrust compliance stipulations and what they mean, but Bromwich is not allowed to "investigate whether such personnel were in fact complying with the antitrust or other laws." This has been a point of contention as Apple previously stated concern over certain interview requests from the ECM, including asks for top-level executives like SVP of Design Jony Ive.

We agree with that interpretation of the district court's order. 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.


Monday's ruling is the latest in an ongoing battle to have the ECM removed. In previous court filings, Apple has accused Bromwich of conducting a wide-roving and unconstitutional investigation, citing requests for documents and interviews the company feels is beyond his jurisdiction.

Bromwich was installed by Judge Cote in October after finding Apple culpable of colluding with book publishers to fix the price of e-books sold through the iBookstore.

post #2 of 72
That's rein, not reign (or even rain).

rein in

verb
1. stop or slow up one's horse or oneself by or as if by pulling the reins; "They reined in in front of the post office" [syn: rein]
2. control and direct with or as if by reins; "rein a horse" [syn: harness]
3. stop or check by or as if by a pull at the reins; "He reined in his horses in front of the post office" [syn: rein]
post #3 of 72

This just exemplifies that the DOJ has it in for Apple, and won't hear the case based on fact, merit, or legal grounds.

 

As much as I hate to say it, I think if Apple wants the courts to view this objectively, they need to increase their contributions on Capitol Hill, otherwise the "law" just gets bent and reshaped to whomever holds the largest bills in their hand.

post #4 of 72
I suppose Amazon's check cleared.
post #5 of 72
Quote:
Originally Posted by MagMan1979 View Post
 

This just exemplifies that the DOJ has it in for Apple, and won't hear the case based on fact, merit, or legal grounds.

 

As much as I hate to say it, I think if Apple wants the courts to view this objectively, they need to increase their contributions on Capitol Hill, otherwise the "law" just gets bent and reshaped to whomever holds the largest bills in their hand.

At least they still have the White House in their pocket.

post #6 of 72

Ridiculous courts, and a ridiculous waste of time. 

 

Apple should just get rid of the business and save itself the grief.

post #7 of 72
So does this mean Apple is going to be BFF with Bromwich now?

"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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"Apple should pull the plug on the iPhone."

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post #8 of 72
Can Apple sue US government if it later found irreparable harm? The Court is tricky using the word irreparable. What the Court says is OK if your found harm we will repair it for you but we will not pay the harm you already experienced.
post #9 of 72
Bromwich stated he is not qualified and as such required a team to perform/assist with the investigation. At the very least, I would have like to have seen a replacement for the cronyism.
post #10 of 72
What a joke. They probably just didn't want to undermine the judge because anyone with half a brain can see the fix is in.
post #11 of 72
Quote:
Originally Posted by MagMan1979 View Post
 

This just exemplifies that the DOJ has it in for Apple, and won't hear the case based on fact, merit, or legal grounds.

 

As much as I hate to say it, I think if Apple wants the courts to view this objectively, they need to increase their contributions on Capitol Hill, otherwise the "law" just gets bent and reshaped to whomever holds the largest bills in their hand.

It's just one more example of having "the finest legal system that money can buy". ... and often does. As one of my favourite song states:  When will we ever learn, when will we ever learn.

See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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post #12 of 72
Quote:
Originally Posted by jungmark View Post

I suppose Amazon's check cleared.

This.

See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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See, in the record business, you can show someone your song, and they don’t copy it. In the tech business, you show somebody your idea, and they steal it. (Jimmy Iovine)
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post #13 of 72

Time to make a call to the president, board member Al Gore.

Proud AAPL stock owner.

 

GOA

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Proud AAPL stock owner.

 

GOA

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post #14 of 72
Quote:
 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. 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.
 
Upon due consideration, it is hereby ORDERED that the motion is DENIED because, on the above understanding of the order and judgment, Appellant Apple had not demonstrated that it is entitled to a stay pending appeal

(key lines bolded for emphasis)

 

Is this not a win for Apple? As far as I can see, the court has stated that Bromwich can't get unrelated documents or interview people about unrelated things, and that if he does Apple may be entitled to a stay pending appeal.

 

He's not off the case, but unless I'm misunderstanding this badly it looks like he's been heavily reined in?

post #15 of 72
Quote:
Originally Posted by DarkLite View Post
 

(key lines bolded for emphasis)

 

Is this not a win for Apple? As far as I can see, the court has stated that Bromwich can't get unrelated documents or interview people about unrelated things, and that if he does Apple may be entitled to a stay pending appeal.

 

He's not off the case, but unless I'm misunderstanding this badly it looks like he's been heavily reined in?

I think you're correct. See here:

 

http://tech.fortune.cnn.com/2014/02/10/apple-koh-appeal-monitor/

post #16 of 72
Quote:
Originally Posted by Sacto Joe View Post

I think you're correct. See here:

http://tech.fortune.cnn.com/2014/02/10/apple-koh-appeal-monitor/
Quote:
Originally Posted by DarkLite View Post

(key lines bolded for emphasis)

Is this not a win for Apple? As far as I can see, the court has stated that Bromwich can't get unrelated documents or interview people about unrelated things, and that if he does Apple may be entitled to a stay pending appeal.

He's not off the case, but unless I'm misunderstanding this badly it looks like he's been heavily reined in?

Yup. It seems as though he actually did get reined in quite a bit without flat out calling out Judge Cote. I still think it is weird that while the case is pending appeal that he gets to keep going.
Edited by foad - 2/10/14 at 8:50pm
post #17 of 72
AppleInsider writers have a hard-on for war or race metaphors. "Shoots down"? Everything is a showdown, fight, battle for, or else competition for or race for.

"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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"Apple should pull the plug on the iPhone."

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post #18 of 72
Seems like a win for Apple to me as well.

Before reading the decision I would have suggested a different tactic for Apple.

Whenever Bromwich truesto talk to someone not related or tries to bring up something outside his scope, have the employee state firmly they refuse to answer questions. Let Bromwich complain to the court that Apple isn't co-operating and explain his justification for wanting to speak to them.

But I see that isn't necessary as he's been restricted in who he can talk to.

Author of The Fuel Injection Bible

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Author of The Fuel Injection Bible

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post #19 of 72
Quote:
Originally Posted by MagMan1979 View Post
 

This just exemplifies that the DOJ has it in for Apple, and won't hear the case based on fact, merit, or legal grounds.

Note that this decision is simply to halt Bromwich's operations until the court hands down a ruling on a request to remove the external compliance monitor.

​A decision to remove the monitor completely is still pending.

post #20 of 72

I am a lawyer on this - Appleinsider editor messed this reading up.

 

Apple one it  - M.B. is forced to focus/ask question ONLY relating to compliance -no more unrelated "fishing expedition" - unlimited billable hours finding out about the next IWATCH and selling it to Google/Samsung et al -

 

Boring - compliance work - MB is screwed - no bottomless BS pit - 

 

No "loving" billing code to go demand to "shoot the breeze" with Tim Cook or J Ives - NADA

 

Get lost charley - only so much this guy can do now - go get a real job buddy MB

post #21 of 72
Failing to show irreparable harm is courtspeak for there being at least one other way Apple can solve this problem, however painful that may be. In this case, it's that, like it or not, Apple is deep-pocketed enough to afford to pay those outlandish fees.
This illustrates a common pattern within virtually any bureaucracy--in this case our judicial system. Little failures and little crimes are easy to get corrected. They don't suggest that there's anything wrong with the system itself. For instance, a judge who's run up a lot of parking tickets is easily disciplined.
On the other hand, a really bad pattern of corruption is hard to get changed. Why? Because a failure at that high a level means that the system itself is flawed. This dispute isn't about mere parking tickets. It's about a judge so incompetent and corrupt that she has appointed a lawyer who knows nothing about anti-trust law to lead and allowed him to charge well above the going rate, particularly given his lack of expertise. Admitting that a judge could err this badly is to admit that the court system itself is flawed. I might add that it demonstrates what's trying to be concealed, that the court system in this district is serious flawed.
That hardly surprises me. In copyright law, the Second Circuit (NY) is notorious for pandering to large copyright holders. I actually filed a grievance against a nasty, bully lawyer in the Second, giving detailed evidence, including his calling me a criminal simply for not rolling over and doing as he said. The Second Circuit's grievance board not only turned down my request they quite literally--I kid you not--rubber stamped that rejection. That's how little they care about the ethics of New York lawyers. I consoled myself with the fact that lawyer I'd criticized at least had to take the time to defend himself.
There's actually an effective way for Apple to get even for all this bullying by the Obama administration and its Chicago-machine DOJ, one that doesn't depend on persuading judges.
In politics, if you don't punish the one who hurts you, you get walked over. Right now, everyone knows that Apple has a 'kick me' sign on their back. Howling, whining and complaining will do no good.
If Apple wants to send a message that is actually heard, in the next few months the websites track political contributions by employer need to show a hefty tilt at Apple from D to R. Nothing else will work. Anything else is a waste of time.
post #22 of 72

The lawyer here loves it  - MB has to go get a real job -

 

Court slaps him with a focused ruling politely saying cut the c.r.a.pola - focus on what you were hired for not unrelated fishing - you are not entitled to chase American companies just because you want to make $$$$$$$$$$$$$$$$$$$$$$$$$

post #23 of 72
Quote:
Originally Posted by LOLpatentz View Post
 

Poor Apple!

 

But not to fear, fanbois, Obama/The White House will soon right this wrong...

Groanz.... notz anotherz onez....

post #24 of 72

I'm pretty disappointed in this AI story, especially with the false headline. It's not a good summary of what the court ruled - for that, go to the link in Sacto Joe's previous post. This is a win for Apple, though not a total victory (the monitor stays for now). If you really look at it, during the appeal the DOJ backed down in a major way - they actually said (quoted in today's ruling) that the monitor was only authorized to look into Apple's antitrust compliance program, and only interview executives on whether they were informed of it. He's not authorized to investigate anything.

 

That's much less than Bromwich was trying to do - he was conducting a limitless investigation of Apple and its executives. The Justice Deplartment backed down in court (in my opinion) because they knew they would lose if they insisted Bromwich had the power to investigate Apple. This ruling lets them save face (because the press is calling it a DOJ win and Apple loss), so they can make public statements about being vindicated in their prosecution.

 

With Bromwich's power limited, he'll have a harder time running up legal fees (though he'll certainly try). It'll be interesting to see if there are continued clashes over what Bromwich tries to do going forward.

 

A hearing for an emergency stay is much different than an actual court case on the merits. To succeed, Apple had to prove irreparable harm, which became pretty hard to show once the DOJ backed down on how much power the monitor should have. But in the full court appeal that will come later, all the issues will come out, and everything will be argued in full. That will be extremely interesting.


Edited by elroth - 2/10/14 at 5:03pm
post #25 of 72
Quote:
Originally Posted by LOLpatentz View Post

Poor Apple!

But not to fear, fanbois, Obama/The White House will soon right this wrong...

Clueless trolls should learn about the US Court system.
post #26 of 72
Quote:
Originally Posted by AppleInsider View Post

Apple's latest attempt to rein in e-books antitrust monitor Michael Bromwich has been denied, with the federal appeals court hearing the case saying the company failed to present evidence of irreparable harm.

 

Although not the full removal as Apple had asked for, this decision definitely reins in Bromwich. 

 

"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."

 

How else should I interpret the above statement.  If anything I would say this decision is a partial win for both DOJ (monitoring stays in place) and Apple (Bromwich can only monitor that they have a compliance training program and that the employees are participating in it).

 

I was really shocked to see such an anti-Apple headline/slant from AppleInsider.

post #27 of 72
Rein - as to pull on it pull back: reign as to govern over others as a King reugns over a kingdom.
post #28 of 72
I might have better entitled this article as "Court rules Bromwick stays, but gets his wings clipped".
post #29 of 72
Quote:
Originally Posted by anantksundaram View Post
 

Groanz.... notz anotherz onez....

 

I know right? They can't all be Zither Zather Zuzz sock puppet accounts… or can they?

"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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post #30 of 72
Quote:
Originally Posted by Suddenly Newton View Post

AppleInsider writers have a hard-on for war or race metaphors. "Shoots down"? Everything is a showdown, fight, battle for, or else competition for or race for.

don't forget "flagship" ...

every apple store is a flagship store
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post #31 of 72
Why is there so little respect for the rule of law in this comment section? Apple 2.0 had already reported that the judges questions made it sound like they were going to limit the scope of Bromwich's requests not his existence as a special prosecutor.. This is the logical thing to do. Wasting Mr Ive's and Mr Cook's time is at least 2 orders of magnitude more expensive than paying Mr Bromwich's hourly rate.

Apple got what they really needed from the court. The other appeal route may over turn part of Judge Cote's ruling and they are the ones digging in deep enough to make that kind of judgement. This court did its job and not that the proper boundaries have been set both sides can end the kindergarten name calling and get back to work.
post #32 of 72
Quote:
Originally Posted by Inkling View Post

Failing to show irreparable harm is courtspeak for there being at least one other way Apple can solve this problem, however painful that may be. In this case, it's that, like it or not, Apple is deep-pocketed enough to afford to pay those outlandish fees.

You don't understand it at all. Money is never an "irreparable harm", because if it's later found to be unjust or "outlandish", they can order Bromwich to pay it back (and the harm is repaired).

post #33 of 72

Here's another story that's a much better analysis of the ruling, the issues involved, and the road ahead:

 

post #34 of 72
There it is in the DOJs own words, they want to cause Apple irreparable harm.
post #35 of 72
Quote:
Originally Posted by Person View Post

There it is in the DOJs own words, they want to cause Apple irreparable harm.

I think as members of the tax paying public it is up to us to loudly voice our outrage to our elected representatives over this harassment and miscarriage of justice.

Proud AAPL stock owner.

 

GOA

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GOA

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post #36 of 72
Originally Posted by SpamSandwich View Post
I think as members of the tax paying public it is up to us to loudly voice our outrage to our elected representatives over this harassment and miscarriage of justice.

 

Who the heck did I elect to the DoJ? :grumble: 


Every position appointable by the President should be fireable by Congress at the behest of its constituents.

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post #37 of 72

Here's some interesting comments

 

Great another Samsung fan who thinks Obama saved Apple when it was Samsung that he actually saved. are all Samsung Fans dumb people?
Do you realize what would have happened if Obama wouldn't interfere? Apple it would won around 50 billion simple by suing back ITC and Samsung

 

Apple won, all i'm saying they should it won after the iPhone 4 and iPad got banned. Apple was already preparing their second case (for damages and shame) thats a fact.
What kinda person goes on Youtube and he makes sure he gets there first to dislike an Apple product? the answer is Samsung trash and based on ur comment you're on of them

 

First they screw00d Apple plans and now this? Obama and the US it looks like they are against Apple. First of all Amazon "Internet Shoping" should just give 1 billion to Apple for respect because without them they wouldn't exist and Second how is changing the price any different from what Amazon did and why is that illegal?

 

 

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post #38 of 72
Quote:

Apple one it 

 

Darn that auto correlation!

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post #39 of 72
I own this town. How dare you attempt to judge over me, you worthless slob.
post #40 of 72
Quote:
Originally Posted by elroth View Post

Here's another story that's a much better analysis of the ruling, the issues involved, and the road ahead:

 

Interesting read.
A ruling both sides can claim vindicates their stand.
Until the final appeal is heard and the dust settles. Once again the winner that will emerge will be the lawyers.
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