Apple Inc lost a bid on Monday to block an antitrust monitor appointed after a judge's finding that the company conspired to fix e-book prices. At a hearing, U.S. District Judge Denise Cote in Manhattan denied Apple's request to stay an order requiring an external compliance monitor pending the company's appeal.
"I want the monitorship to succeed for Apple," she said.
The judge also said there was "nothing improper" about a declaration filed by a lawyer chosen to serve as monitor, Michael Bromwich, that became the basis of Apple seeking his disqualification. Cote said she will promptly issue a decision explaining her reasoning. Apple will then have 48 hours to seek an emergency stay from the federal appeals court in New York, she said.
Apple will of course appeal this ruling, but I doubt that their appeal is going to accomplish anything.
Apple has never reconciled to the fact that they lost the antitrust lawsuit last July. As you probably recall, Judge Cote ruled that Apple had brokered a conspiracy so 5 US publishers could control and raise ebook prices. The publishers settled before going to trial, but Apple decided to tough it out and they lost. As a result of that loss the judge appointed an antitrust monitor whose job was to observe and monitor Apple's internal efforts to correct the patterns of behavior that led to their past misdeeds.
Judge Cote assigned Michael Bromwich to the position in October, and Apple has not stopped complaining ever since. They're not happy about the fees he's charging or his repeated requests to interview senior management at Apple. The tech company even filed a brief in late November which made a public spectacle of their fight with Bromwich, but their grandstanding accomplished absolutely nothing when they met with the judge the following week.
Judge Cote directed Apple to take their complaints about Bromwich to the DOJ. Unfortunately, Apple wasn't any more willing to get along with the DOJ than they were with Bromwich, and as a result Judge Cote ordered both parties back into court today.
Apple lost again, but I don't expect that to stop them. They had already vowed to appeal the July ruling, and we know that they will appeal today's ruling. Would anyone care to lay odds on whether either appeal will succeed?
Today's ruling is almost certainly going to stand, but the July ruling could possibly be overturned or modified. There's some reason to question whether Judge Cote pre-judged the case, and that might be enough to sway an appeals court. But that appeal has not yet been filed by Apple, so at this point it is little more than speculation.
I must say, when Apple lost the case in July I thought we would be in for a dry and dull period as apple licked their wounds and then moved on. Instead Apple has turned this into a media spectacle in which they keep being told that they are wrong and the DOJ and the court-appointed monitor are right. And just to make things even more fun, Apple's ongoing media spectacle is generating all sorts of media coverage (like yesterday's Salon.com article).
It's quite entertaining, don't you think?