Is Apple’s independent anti-trust monitor, Michael Bromwich, overreaching, as we reported Apple claimed last week? Not according to the Department of Justice. Andrew Albanese reports in Publishers Weekly on a recent letter to the court from the DoJ. U.S. attorney Lawrence Buterman accused Apple of trumping up concerns over the monitor in order to help make a case for a stay on the order pending its appeal.

“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.”

When DoJ officials attempted to discuss Apple’s concerns, Buterman said, Apple just wanted to talk about its “broader ‘constitutional’ and other concerns with the trial and the imposition of a monitor,” rather than what it saw as the monitor’s role. And, he said, Apple has also disregarded (and didn’t even mention to the court) Bromwich’s attempt to reach out to resolve any misunderstandings.

Judge Cote already denied Apple a stay once, back in August. She’s going to rule soon on Apple’s most recent request, but based on previous rulings, if I were Apple I would not be holding my breath.

At this point, it is too early to tell how this is going to come out. We pretty clearly can’t take anything Apple says at face value. They have been found guilty of illegal collusion. As such, they are being justly punished, but they will fight that punishment tooth and nail, every step of the way, with every resource at their disposal. And that includes complaining vociferously about everything the anti-trust monitor does. That does not necessarily mean their complaints have no merit, but it will make it a lot harder to tell if they do because they don’t think they should have to put up with a compliance monitor at all.

This is not going to be over until Apple has exhausted its appeals. It may well go all the way to the Supreme Court. Either way, I’ll bet Judge Cote will heave a deep sigh of relief when she has finally gotten this case out of her court and passed on to the next level of the judiciary.


  1. LOL, it’s Chris the executioner! Back for an encore.
    Let me remind you, a whole big chunk of Obama Admin spying was just ruled unconstitutional yesterday. So your rather declarative of who the bad and good guys are could use a little more nuance like Apple is innocent and the Feds have been shown to play loose and fast with the Bill of Rights. Just using your logic right back at yeh.
    One wonders, as the prosecutors won the case and should feel (according to you) highly confident they will win the appeal why they should feel compelled to enter the PR battle at this juncture??

  2. Let’s try not to paint with too broad of a brush here. All that NSA spying shenanigans dates back to the previous Bush administration, and earlier. The Obama administration could be faulted for assuming the NSA was following the “rules” of gentlemanly intelligence gathering ( if their ever was such a thing) and not providing proper guidance to the NSA but they aren’t the ones who let the NSA, and the other TLAs, off their leashes post 9/11. And just where was Congress thru all of this?

    None of which has anything to do with the Justice Department’s unhealthy (IMO) focus on Apple while Amazon appears to be up to no good behind their backs. IMO. And the judge’s apparent conflict of interest with this anti-trust monitor.

  3. Obama is in no position to blame anyone but himself and his administration is going to defend the NSA up to the Supreme Court which will render a precedent setting decision. Sorry, but that’s a very big deal!

    I would not normally have conflated the two, but Chris was rather jingoistic about who was naughty and nice and his equilibrium needed some urgent rebalancing.

  4. Shrug. I don’t make any secret of the fact that I favor Amazon. Amazon’s the one who lowered the price of e-books. The publishers were the jerks who kept their e-books at hardcover prices for years after their print books were out in paperback. Just couldn’t be bothered to adjust them in a timely manner, after all, that’s just so much work.

    The publishers did everything in their power to try to hinder the adoption of e-books until Amazon dragged them kicking and screaming into the 21st century. And when they got all scared of Amazon for its alleged predatory pricing, did they do the legal thing and file anti-trust complaints against the company? No, they colluded illegally with Apple, who didn’t actually want to have to compete with an uncrippled Amazon. Even if that hadn’t been found illegal, it’s still slimy and unethical.

    The judge’s ruling is right there in black and white. It lays out the whole timeline very firmly, and draws conclusions that are hard to argue with. So it seems like just about the only way Apple partisans can argue their case now is to try to cast aspersions on the judge and monitor, and accuse the DoJ of participating in some kind of conspiracy theory. I don’t buy it.

    If the judge’s nepotistic connections to the monitor are such a big deal, why are they coming out in a slanted WSJ editorial that tries pretty much every trick in the book to paint him in a bad light (for example, mentioning his fee rates in a vacuum to make them seem outlandish, rather than putting them in the context of the similar amounts that other officers of the court are being paid), and not in legal papers filed by Apple protesting the man’s assignment? If Apple thinks that aspect of the monitor’s assignment is irregular enough to matter in court, I’d think they’d darned well say so—they’ve said just about everything else!

    So, yes, I’m rooting for Amazon. I’m happy Apple and the publishers are getting what they deserve. I’ll be disappointed if it gets reversed on appeal, sure, but I’ll take that chance, and revel in the schadenfreude while I can.

  5. I don’t understand how being angry with publishers computes to anger towards Apple.
    Right now Amazon is a monopsony. They also practice predatory pricing with the specific goal of putting their competitors out of business. Once that happens, their prices will rise steeply.
    And Amazon is holding back the pace of ebook innovation too.

    Anyway, ebook formats are destined to die. They offer nothing over html5. People will see that committing one’s book shelf to a license with DRM from a supplier that can delete purchased content at a whim is a failed solution.

    The trade off between html5 and kindle only hurts consumers and only helps Amazon.

  6. “They also practice predatory pricing with the specific goal of putting their competitors out of business. Once that happens, their prices will rise steeply.”

    Evidence, please?

    Many of Amazon’s detractors have made this claim but none have proven it, nor have they explained why a company who’s business model for the past 15 years has been “sell stuff cheap” would raise prices later. Also, that whole idea of monopolizing a market doesn’t really work in the internet age when anyone in the US can sell to anyone else in the US.

    “And Amazon is holding back the pace of ebook innovation too.”

    Yes, that’s why Amazon didn’t release X-Ray, Whispersync for voice, Kindle Cloud storage, free email conversion and delivery, Kindle Format 8, etc.

  7. There is a long history of the Feds intervening against predatory import pricing.
    “predatory pricing examples” -> About 93,200 results (0.29 seconds)

    After Microsoft wiped out Apple in the 90s the prices for its OS rose considerably.

  8. We’ll see. It ain’t over till it’s over.
    It will happen when “A nickel ain’t worth a dime anymore.”
    “I wish I had an answer to that because I’m tired of answering that question.”
    “Congratulations. I knew the record would stand until it was broken.”
    “You can observe a lot just by watching.”

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