DOJ: Court didn't abuse power by appointing Apple monitor

The US government says an appeals court should deny Apple's motions to get rid of the monitor overseeing its compliance with antitrust laws.

Shara Tibken Former managing editor
Shara Tibken was a managing editor at CNET News, overseeing a team covering tech policy, EU tech, mobile and the digital divide. She previously covered mobile as a senior reporter at CNET and also wrote for Dow Jones Newswires and The Wall Street Journal. Shara is a native Midwesterner who still prefers "pop" over "soda."
Shara Tibken
3 min read

The US Department of Justice on Friday argued that a US court didn't abuse its power by naming an external monitor to oversee Apple's compliance with antitrust law and that an appeals court should deny Apple's motions to get rid of the monitor.

A federal appeals court on Tuesday had granted Apple's motion to hold off on having an external monitor to make sure it complies with antitrust laws, saying it would give Apple a reprieve until a panel can examine the issue.

The government, in an opposition filing Friday, said the court acted within its power to appoint a monitor. The lawyers said that Apple must show it will suffer "irreparable harm" if the monitorship isn't put on hold, and that a stay is in the public interest. However, the Justice Department argued that Apple can't show that the monitor behaved improperly, and if Apple could show that, the correct action would be replacing the monitor, not getting rid of a monitor entirely.

"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," the government said. "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."

At a hearing last week, District Court Judge Denise Cote denied Apple's request to put the monitoring on hold until its appeal of her ruling is complete. Last July, Cote found Apple violated antitrust laws, orchestrating a conspiracy to fix the prices of e-books. She then appointed an external monitor to keep tabs on the company's compliance with antitrust laws.

However, a United States court of appeals for the second circuit on Tuesday gave Apple a temporary stay until a three-judge motions panel hears the request for a longer stay. The court said the motion for stay should be heard by the panel "as soon as possible." The US government had until the end of day on Friday to file its opposition to the motion for a stay.

Cote in October named former Assistant US Attorney and Justice Department Inspector General Michael Bromwich as the monitor for the company for the next two years, which was less than the five-year injunction Apple faces across numerous deals with publishers as part of a July ruling.

It didn't take long for Apple to butt heads with Bromwich. Apple complained in November that the attorney's fees were excessive, pointing to the $138,432 he charged for his first two weeks of work. Bromwich countered that his requests to meet with key Apple personnel were largely being ignored. Earlier this month, lawyers for Apple asked Cote to disqualify Bromwich, arguing that he has demonstrated a personal bias against the company.

The Justice Department sued Apple and five of the six top book publishers last year, saying they conspired to break Amazon's hold on the e-books market with its popular Kindle Reader by setting prices. Though the publishers settled, Apple fought the Justice Department's accusations in court, and lost. Cote ruled that Apple "orchestrated" the conspiracy, which Apple plans to fight on appeal.