Thanks go to Mike for alerting me to Apple’s latest filing, supporting its request for a stay and requesting the removal of Michael Bromwich from the duty of antitrust compliance monitor. Since the filing is too new to have been covered in detail by anyone else yet, I went to PACER and snagged the relevant filings.

In Apple’s cover letter (PDF) and motion supporting its request for a stay (PDF), the company’s counsel lay out its objections to Bromwich’s continued tenure as a compliance monitor. It complains that, by filing the declaration laying out his problems getting to speak to Apple executives, supporting the plaintiffs’ position opposing Apple’s request for a stay, Bromwich displayed “a personal bias or prejudice” concerning the company. It also holds that Bromwich has asserted investigative powers beyond the scope of his assignment to monitor compliance, that Bromwich has attempted direct contact with Apple personnel outside of his authority, and that he is charging too much and therefore has a “financial interest in the proceedings.”

From page 9 of the motion:

Plaintiffs’ attempt to “boil[] down” Apple’s argument to the mere fact that Mr. Bromwich is paid by the hour is completely disingenuous. Opp. 15. Apple objects to far more than the fact that Mr. Bromwich charges an hourly rate. He acknowledges no limits on the scope of his work and he refuses to accede to any. Apple objects to Mr. Bromwich’s submission of a declaration in support of Apple’s adversaries, his communications and collaboration with the government in an effort to expand his mandate and oppose this motion, his financial demands, and his adversarial, inquisitorial, and prosecutorial conduct toward Apple since his appointment. Boutrous Reply Decl. Ex. B. What these facts “boil down” to is an unmistakable appearance of bias.

That being said, Apple objects to his hourly rate, too. In the next paragraph it says that for a court-appointed monitoring duty, Apple believes he should be paid more like a public servant and less like a profit-making lawyer.

I’m not really sure whether Apple honestly expects to sway Judge Cote with these arguments. She’s the one who assigned Bromwich in the first place, after all. While she did back down from an earlier expansion of his powers, it seems like she would have known what she wanted at the time she assigned him. It’s more likely Apple is setting up for an appeal in the event the judge denies the stay, or to remove Bromwich from the position.

Granted I’m not a lawyer, but it seems hard to read any explicit support of the plaintiff’s objection into Bromwich’s declaration, unless it’s just the fact that it was filed at the same time as the objection (or as an attachment to the objection?) and states an interpretation of the facts that can be taken to support the plaintiff’s position. If we take this plus Apple’s objections at face value, it seems that Apple could disqualify any monitor simply by stonewalling them and then claiming that any protest of their treatment proves they are “biased.”

As for Apple’s objections to Bromwich’s salary, it should be noted that they can hold whatever opinion about it they want, but they’re not the ones who get to decide what it should be. They’re the ones who broke the law, and they have to carry the costs the judge assigns as part of the punishment for that, if they’re reasonable fees for a lawyer of that particular specialty. And Apple pays its own lawyers more than that, so they must be reasonable or Apple wouldn’t be paying them itself.

Anyway, to the average layperson who is probably making at most two figures per hour anyway, the difference between the $800 an hour Apple wanted to pay him and the $1100 an hour he is charging might as well be the difference between going to the moon or going to Mars—neither one of them is going to be anything he’ll ever do. (And from the other side of things, as much money as Apple has, when you get right down to it this kind of salary is pretty penny-ante stuff to them.)

I also find it noteworthy that even in this filing requesting his removal, Apple isn’t claiming Cote’s prior professional relationship with Bromwich contributes in any way to his “bias,” as that Wall Street Journal editorial suggested. Perhaps they’re saving that for the appeal. I also find it noteworthy that they didn’t complain Bromwich isn’t even a “real” antitrust lawyer himself but had to hire an assistant for it, another objection loudly raised by Apple partisans.

In any event, it should be interesting to see what the judge decides, and what her rationale for the decision is. Either way, the losing side is going to appeal every step of the way. It’ll be a while before we see the end of this.


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