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Tuesday, January 07, 2014, 07:42 pm PT (10:42 pm ET)

Apple requests removal of external antitrust compliance monitor

In a letter submitted to U.S. District Court Judge Denise Cote on Tuesday, Apple asks for the removal of court-appointed antitrust compliance monitor Michael Bromwich from his post, citing the monitor's recent declaration chastising Apple's supposed lack of cooperation.

Bromwich


The letter, filed on behalf of Apple by lawfirm Gibson Dunn, calls out Bromwich over his late-December declaration to the court in which he rebuked Apple's actions up to this point and denied claims of an unconstitutional, wide-roving inspection.

Apple asserts that by filing the declaration, Bromwich raised red flags as to his impartiality in the ongoing monitorship, possibly suggesting personal bias against the company.

His wholly inappropriate declaration in an adversarial proceeding is compounded by his conduct and the circumstances surrounding his appointment and activities, including his reliance on preappointment conversations with the Court and plaintiffs as grounds for expanding his mandate beyond the terms of the Final Judgment, his active collaboration with plaintiffs to broaden the scope of his mandate in this manner and oppose Apple's motion for stay, his financial demands, and his adversarial, inquisitorial, and prosecutorial communications and activities toward Apple since his appointment.

Apple goes on to restate that Bromwich overstepped his bounds on multiple occasions, saying the ECM views himself as "unconstrained by the federal rules governing discovery and other matters, and acting like an independent prosecutor not a judge."

Here, the company cites multiple requests to interview senior executives and board members who have no role in day-to-day operations, let alone the iBookstore, which was targeted in the Department of Justice's e-book price-fixing case.

The third point raised by Apple again points to Bromwich's direct contact with company employees, which is contrary to the Final Judgment's stipulation against interviews without legal counsel. Finally, Apple takes issue with the monitor's fee structure, which it considers to be excessive and outside the bounds of Judge Cote's ruling. It came to light in November that Bromwich was requiring $138,000 for what was then two-weeks' worth of work.

Apple and Bromwich have been feuding almost since the former Justice Department Inspector General was assigned to his monitorship. Today's letter just adds to the already substantial number of court filings illustrating the back-and-forth between Apple and its court-assigned ECM.

The next scheduled court appearance for Apple will be oral arguments of the company's motion to stay the investigation pending its appeal of Judge Cote's Final Judgment. The DoJ will argue against, citing the public interest lies in keeping Apple from entering further illegal deals. Both parties are slated to meet in court on Jan. 13.