In a letter to the court made public last week, U.S. attorney Lawrence Buterman hit back at Apple, accusing the company of trumping up concerns over its external monitor, Michael Bromwich. In his letter, Buterman said Apple has engaged in “a systematic and untoward campaign” to publicly malign Bromwich as part of an effort to bolster its case for a stay of the court’s final order requiring a monitor pending Apple’s appeal of Judge Denise Cote's July 10th price-fixing verdict.
“The United States and Plaintiff States have reviewed Apple’s filings, and have spoken on multiple occasions with both Apple and Mr. Bromwich concerning Apple’s objections,” Buterman wrote. “Based on our review, Mr. Bromwich’s actions to date have been wholly within the scope of his authority under the Final Judgment, and at all times appropriate and consistent with his impeccable reputation.”
In a letter filed last month, Apple attorneys complained that Bromwich is exceeding the bounds of the narrow final order signed by Judge Denise Cote in September, acting as “as an independent investigator whose role is to interrogate Apple personnel about matters unrelated to the injunction in an effort to ferret out any wrongdoing, all at Apple’s expense.” Apple also complained about Bromwich’s fees.
But when DoJ officials reached out to Apple to discuss its concerns, Apple “refused to articulate how it wanted the External Compliance Monitor to proceed moving forward,” Buterman told the court, or what resolution it wanted on the fee dispute. Instead, Apple attorneys “repeatedly stated that it had broader ‘constitutional’ and other concerns with the trial and the imposition of a monitor.”
In addition, Bromwich also reached out to Apple to resolve any misunderstandings, but “remarkably,” Buterman wrote, Apple has not responded to Mr. Bromwich’s email, or even notified the court of the communication. Instead, Apple attorneys filed a motion for a stay of the final injunction's monitor provision while Apple’s appeal is heard.
In its brief supporting a stay, Apple attorneys argued that Bromwich, was conducting “a roving investigation that is interfering with Apple’s business operations, risking the public disclosure of privileged and confidential information, and imposing substantial and rapidly escalating costs on Apple that it will never be able to recover if it prevails on its pending appeal of this Court’s Final Judgment and the injunction.”
The “likelihood of success by Apple on appeal, combined with the irreparable injury Apple is suffering from Mr. Bromwich’s unwarranted inquisition,” Apple attorneys argue, “warrant a stay of the monitor provision of the injunction while Apple’s appeal is heard by the Second Circuit.”
In an order last week, Judge Cote ordered briefs on the matter, with the DoJ to respond to Apple's request for a stay by December 30.
Judge Cote has already denied Apple a stay of all proceedings pending its appeal, however. And in his letter to the court, Buterman accused Apple of purposefully misrepresenting Bromwich’s work in an effort to make another case for a stay.
“At this point, Apple’s misreading appears to be nothing more than strategic,” Buterman wrote. “Accordingly, Apple’s proposed Order to Show Cause should be denied.”
