The Second Circuit Court of Appeals granted Apple a brief reprieve on Tuesday, issuing a temporary "administrative" stay while it reviews Judge Cote’s decision to deny Apple a stay of its external monitor.
In its order, the Second Circuit directed a three-judge “motions panel” to hear Apple’s appeal “as soon as possible.” In the interim, the administrative stay blocks the monitor’s work until the court rules on Judge Cote’s decision to deny Apple a stay.
The DoJ did not oppose the administrative stay. However, it does oppose Apple’s bid for a stay of the monitor provision, and the Appeals court gave U.S attorneys until the end of the day Friday, January 24, to file its opposition brief.
The Appeals Court’s order comes after Judge Denise Cote on January 13 denied Apple’s bid to stay the monitor’s activities, and declined Apple’s request to disqualify the current monitor, Michael Bromwich, holding that Bromwich had not overstepped his bounds or abused his authority.
Apple attorneys had accused Bromwich of conducting a “roving investigation,” questioned his partiality, and claimed that his conduct—including direct requests for interviews with Apple board members and executives—was prosecutorial, and overly burdensome. After a roughly hour-long hearing last week, during which Apple reiterated its complaints over Bromwich, and DoJ attorneys rebutted, Cote held that Bromwich’s actions were in fact within the bounds of his narrow mandate to help Apple craft a suitable antitrust training program.
The Second Circuit’s temporary stay is a minor victory for Apple as, win or lose, it enables the company to at least run a little bit more time off the monitor’s two year appointment, in addition to the 90 days it has already run off through its unsuccessful objections before Judge Cote.
The Second Circuit order also expedites the first judicial review of Judge Denise Cote’s conduct in the case, and will be worth watching for that reason. How the Appeals Court rules on Cote’s decision to deny Apple a stay of the monitor could offer some clue as to how it views Cote’s handling of the case.
Meanwhile, in addition to its bid to block the work of the external monitor, Apple attorneys also filed a reply brief in its bid to strike an expert report, by Stanford economist Roger Noll, that pegged Apple’s damages at nearly $308 million.
In its consolidated brief, Apple attorneys argued that the report “remains so flawed that it permits no reliable assessment of impact or damages.”
Apple's damages trial remains on track for a May, 2014 trial.
