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Judge Cote Orders DOJ, Apple Back to the Court After They Can’t Resolve Apple’s Complaints

Apple’s rear 5176687673_0e638f874e_m[1]guard action in the ebook price fixing anti-trust lawsuit entered a new round late last week.

The US Dept of Justice released a letter late last week responding to Apple’s legal filings and complaints about Michael Bromwich, the court appointed external monitor. The DOJ described Apple’s efforts as "a systematic and untoward campaign to publicly malign Bromwich and prevent him from carrying out his responsibilities". It’s implied that this effort is in support of  the appeal Apple filed last Thursday, which Apple is hoping will overturn the 10 July ruling that found Apple guilty of conspiring to raise ebook prices.

In short, the DOJ said that Apple was grand standing. Funny, that’s what I wrote a couple weeks ago.

The letter, which was signed by U.S. attorney Lawrence Buterman, goes on to add that the DOJ had not found any valid issue among Apple’s complaints:

“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.”

This latest dust up comes as a result of of a motion Apple filed in late November. Apple complained about the fees charged by Michael Bromwich, the court appointed anti-trust monitor, and with the manner in which he was doing his job.

Apple wasn’t too happy with the fees he was charging nor with the way Bromwich was going abut his duties. Apple complained that he was acting as if he was "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".

Judge Cote lightly rebuked Apple for that filing, telling Apple about a week later that they should have raised the issues with the DOJ and not with the court. But when DOJ officials reached out to Apple to discuss its concerns, according to Buterman  Apple "refused to articulate how it wanted the External Compliance Monitor to proceed moving forward."

Apple was also unable to explain what resolution it wanted on the fee dispute; instead, Apple’s attorneys “repeatedly stated that it had broader ‘constitutional’ and other concerns with the trial and the imposition of a monitor.” Buterman also noted that Apple has not responded to Bromwich’s email which attempted to resolve the conflict.

As a result, this case is at another impasse and will end up back before the judge.

After a phone conference Friday afternoon, Judge Cote asked Apple and the DOJ to submit briefs by the end of the month, and she scheduled oral arguments for 13 January. Judge Cote also denied Apple’s request for a stay of the original 10 July ruling which found that Apple had conspired to raise ebook prices, meaning that Apple has no legal defense for their ongoing refusal to cooperate.

At this point the case is at a standstill as we wait for Apple’s day in court. As much as I would like to prejudge this case, it’s too soon to say how the judge will rule.  As one reader pointed out when this topic last came up, not all legal experts are convinced that the DOJ had a solid case. (Thanks, Mackay!)

Fortune, PW

image via Flickr

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Mackay Bell December 17, 2013 um 1:19 pm

Thanks for the shout out! I’ll try to avoid excessive linking in the future. Love your site!

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