425.the.incredible.hulk.033108Business Insider has another article on the enmity between Apple and Michael Bromwich, including PDFs of Apple’s filing requesting a stay and Bromwich’s declaration detailing his interactions with Apple over the last few months. According to Apple’s attorneys, the corporation apparently shares some characteristics with Bruce Banner. It’s angry, and you wouldn’t like it when it’s angry.

Seriously, that is what Bromwich says Apple’s lawyers told him: that “Apple executives would ‘never get over the case’ and that they were still extremely angry.” And that it might be a good idea for Bromwich to wait to talk to them until they’d, y’know, cooled off for a few months or whatever. (Though if they really are “never” going to get over it, I have to wonder what difference any length of time would really make?)

Bromwich wants to talk to all of Apple’s top executives, just as he has at previous companies where he’s been involved in court-mandated oversight, because getting a feel for the tone of the executives helps assess the corporate culture and attitudes toward the things he has to be monitoring. He notes in his statement that this is the same way he operated at previous monitor postings, and the other companies had been uniformly courteous and open, offering even more access than he required. Apple, however, characterizes his requests as a “roving investigation” outside the bounds of his court-mandated duties.

Passive Guy, the lawyer who blogs at The Passive Voice, opines that “this is bizarre behavior for the executives of a large public corporation.” In his experience, what you want to do if you’re a public corporation that just lost at trial is to tread as carefully as possible until and unless it gets reversed on appeal, because until and unless that happens, the trial judge has a lot of power to mess up the company for a very long time. And the DoJ would probably just love to have an excuse to investigate Apple’s other business practices. He also makes no secret of the fact that he thinks Cote’s decision is pretty airtight and Apple doesn’t stand much chance at a reversal for all its bluster.

In the past, PG has represented a handful of litigation clients who were not able to control their anger over their lawsuits and the outcome of those suits. They could generate a lot of legal fees, but, ultimately were not very effective in promoting the outcome they sought.

I think I need more popcorn. Looking forward to the next chapter in this fascinating and entertaining debacle.


  1. “Bromwich wants to talk to all of Apple’s top executives, just as he has at previous companies where he’s been involved in court-mandated oversight, because getting a feel for the tone of the executives helps assess the corporate culture and attitudes toward the things he has to be monitoring.”
    BTW, Egg McMuffins are an excellent cure for prolonged eggnog hangovers.
    Poor Bromwich! How is going to fulfil his neediness and gestapo fantasies now that Apple won’t let him interview Jonathan Ive?
    This story is disintegrating into a bad Monty Python sketch.

  2. “This story is disintegrating into a bad Monty Python sketch.”

    I think so, too, but probably for the opposite reason you do. Apple won’t let its execs talk to the court-appointed monitor in the normal execution of his duties because their feelings are hurt? Someone get them a cup of hot cocoa, a box of kleenex, and a teddy bear.

    Prediction: The judge is not gonna be impressed with Apple.

  3. You can attempt to portray the story how you like, but in the end the judge will be out and Bromwich too. Eventually these losers are going to have to explain themselves to real adults, not pretenders. Bromwich will have to find other material to put on his Instagram page.

  4. Apple’s aiming far too low with their anger. They’re obsessing over two minor factors:

    1. A judge so foolish, she appoints a friend to a lucrative position.

    2. A lawyer with no significant anti-trust skills who is going for all the $1100/hour billable time he can get: interviews, investigations outside his court mandate, etc.

    But note that the DOJ lawyers are aiding and abetting both of them. The critical issue is rearing up in front of Apple like Mount Everest from the Everest Base Camp. They and a lot of others in Silicon Valley have to be blind not to see it.

    In 2008 we elected a candidate, Obama, who has been active for 20 years in Chicago-machine politics without ever ruffling the feathers of even a single crooked meter maid. Believing he’s an honest politician is a bit like believing the madam in a house of prostitution is a virgin. Some of his best buddies are the city’s slumlords. One gave him a sweetheart deal on the property next to his Chicago home. The last fact created minor ripple on the news media before being suppressed.

    Obama in turned appointed Eric Holder, another Chicago-machine politician, to head the DOJ. Between the two of them, they’ve set the climate at what should be the nation’s premier law enforcement agency. We no longer have a Department of Justice. We have a Department of Chicago-machine Politics. No surprise there.

    Apple’s woes are extraordinarily minor in comparison to what the DOJ is actually doing and the scandals it is refusing to investigate. Fast and Furious was a ‘run guns to Mexico’ scheme of such dubious validity that the Mexican government was never told about it. Through it, some 2,000 weapons crossed into Mexico, causing at least 200 deaths. You haven’t heard about that? That’s because the mainstream press cares nothing about dying Mexicans.

    There’s also the IRS targeting of conservative, limited government, and pro-Israel groups. That’s precisely what the Chicago machine does. It abuses laws and regulations to crush political opponents. And there are numerous other illustrations, including attempts to criminally prosecute the (Republican-tilting) Gibson Guitar while doing nothing about a Democratic-tilting competitor.

    In this case we’re seeing a different side of Chicago politics–how the machine makes its money. Line the right pockets or provide the right political favors, and your business is protected, even if it is foul as the slum lords that Obama is so close to. And if you’ve got some troublesome competition, they’d find the entire regulatory machinery of government coming down on them. If you’re in construction, your badly built buildings with get a pass while your competitor’s much better built buildings get hit with a host of fines.

    That’s precisely what’s happening in the digital book market, a market Amazon wants to own. Apple poses a threat, so Apple gets sued, not accidentally just after the DOJ consults with a Seattle law firm located only a 10-minute walk from Amazon’s corporate offices.

    The major book publishers offer another locus of resistance to Amazon, particularly if they organize, so they get sued and for conspiracy no less to make sure they never organize, however legally. And through it all, the DOJ doesn’t even bother to make a face-saving request for information from Amazon, much less an investigation.

    I could go on and on, but the reality is that if Apple and the others in their industry want good government, they’d got to put their money on tossing as many Democrats out of office as possible in 2014 and giving this country an honest Republican president in 2016, someone like the talented and honest Romney we should have elected in 2012.

    And if Apple doesn’t do that, then there’s little reason to feel sorry for Apple. As Alexis de Tocqueville observed, in a democracy the people get the government they deserve. What kind of government has Apple and its employees wanted? According to Influence Explorer, Apple and its employees made the following contributions in recent years:

    Obama: $514,708
    Hillary: $46,799
    Kerry: $42,794
    Romney: $32,460

    Or by political party:

    DNC Services Corp (Democratic): $241,107
    Demo Congressional Campaign: $70,039
    Demo Senatoral Campaign: $69,184
    DemoNon-Federal Individual: $65,000
    RNC (Republican): $45,050
    Repl Party of California: $43,200

    Source: http://influenceexplorer.com/organization/apple-inc/6fba97b1038744ad8ab27d5fac99bfd7

    Apple and its employees have been putting their money on crooked, Chicago-machine politicians like Obama, and yet they’re surprised when crooked, corrupt politics harms them. That makes no sense.

    This confirms my experience that people who get very good at one thing–in Apple’s case creating clever devices–are often not very good at other things, in this case politics. Apple needs to take its corporate blinders off.

  5. This whole thing is such a farce.

    Apple and the publishers blantantly violate US criminal law. Apple’s CEO tells the media that he’s conspired with the publishers before they collectively raise prices by 50% in one day and later brags about it in his memoirs. The DOJ has no option but to enforce the laws but since conspiracies are difficult to prove in a criminal court they choose to not pursue that route. The publishers all get slapped with a fine which is less then the profits they reaped from their criminal conspiracy and Apple has the same option but Apple thinks they’re above the law and decide to fight it. Apple presents no valid legal defence but instead mount a media campaign claiming they did nothing wrong and try to point fingers at Amazon and mount a media smear campaign against the DOJ and judge. They are found guilty in the court of law but immediately claim they’re going to appeal but don’t say on what grounds.

    Apple’s tactics in this are equivalent to a rich small town businessman that is caught drunk driving and instead of paying the dues goes after the police officer that charged him to get him fired and hope that all the other police officers will be afraid to pursue it. After all it’s legal in the US to drive after having a drink, he did nothing wrong.

    The court appointed monitor is responsible to interview all of the senior executives to see how deep the disregard is for US criminal law and why they are so reluctant to put in checks and balances to ensure it doesn’t happen again. Apple’s board of directors is also responsible to ensure the proper governance is in place to make sure this doesn’t happen again and it seems perfectly reasonable to me that the monitor would meet with them and find out why they aren’t.

    Since so much of Apple’s business is built upon Apple’s customer’s respecting US law and paying for content rather then just sharing it, it is amazing to me that Apple is taking this position of flagrantly ignoring US law and law enforcement. I don’t understand why someone on their board of directors is not insisting that they at least give the appearance of respecting the law and law enforcement.

  6. If Bromwich’s relationship to Judge Cote is so awful and horrible, why has nobody made anything of it since that Wall Street Journal editorial? I’d have thought Apple would have made it an issue in its request for a stay, but nope, apparently not. I haven’t even seen any mainstream news sources trying to follow up on it.

    Could it be that the WSJ, a paper owned by one of those same major publishing companies that settled for antitrust—indeed, a company led by Rupert Murdoch, one of the most influential figures outside of Jobs & co in pushing agency pricing through—might be biased? Perhaps grasping at any sort of straws it can get its hands on?

    Bromwich might not have “antitrust” experience, but he certainly has experience acting as a court-appointed compliance monitor for companies that did other bad things. Antitrust isn’t the only thing companies get external monitors for, you know.

    Well, I expect we’ll see how the appeal goes.

  7. Don’t you think the judge, Bromwich and the prosecutors erred in not focusing from the inside out? Bromwich, by walking in with the high rate and requests to interview Ive and Gore, opened himself up for these attacks.
    If instead, Bromwich had focused on the core issues first, then, if he had been met with obstacles, could have requested to go after the big fish later.
    The idea of forcing Apple to incur costs for the remedy process during the appeals process is already dubious, but I think if Bromwich had stuck to the issue at hand Apple would have reluctantly agreed to cooperate.
    Now the process will be exposed to and compromised by politics and Apple’s image is much better than Amazon’s.

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