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Judge Cote Appoints Magistrate to Back up eBook Antitrust Monitor

Following4885241106_4223b62005_n[1] Apple losing yet another round in their ebook antitrust lawsuit earlier this month, Judge Denise Cote has seen fit to appoint a magistrate to referee Apple’s future disputes with Michael Bromwich, the court-appointed external monitor.

According to PW, Magistrate Judge Michael Dolinger is now stuck with the unenviable task of overseeing the resolution of “any disputes that arise in connection with Apple’s external monitor, subject to appeal to this Court.”

The appointment of Dolinger follows several months of complaints on the part of Apple, as well as numerous meetings, court dates, conference calls which accomplished little to resolve the differences between Apple, the DOJ, and the court-appointed monitor. The disagreements culminated in a 10 February decision from the Second Circuit Court of Appeals which upheld Cote’s order that Apple must fully comply with the monitor provision.

Earlier this month the the Second Circuit Court of Appeals upheld Judge Cote’s earlier rulings on Apple, in effect saying little more than Apple has to comply with the external monitor and that the monitor has to stay within the bounds of the court ruling. "We agree with that interpretation of the district court’s order," the Second Circuit held. "In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation."

It would seem to me that Judge Cote appointed Dolinger with the goal of short-circuiting Apple’s future complaints, thus ensuring that any disputes are resolved impartially and without influence from Judge Cote.

I know that a number of my readers have accused her of a bias, so I am sure they will be pleased to have an impartial referee step in. This will be Apple’s chance to show that their complaints aren’t merely obstructionism but rather valid issues that have been ignored.

Apple has complained about his fees, conduct, document requests, but aside from a couple minor procedural issues Apple has not won any of the fights it picked with the monitor, the DOJ, and Judge Cote. But now that Dolinger has been asked to act as a referee, I’m sure that we’ll see justice be served.

Along with appointing the magistrate, Judge Cote also instructed Apple to turn over all of the documents which had been requested by Bromwich. Some of the documents had been requested as late as last week, while other document requests date to as early as October.

Background: Today’s ruling is the latest development in an ongoing legal dispute that stems from the launch of the iPad in early 2010. In the month before the launch, Apple negotiated with 5 US publishers and signed them as launch partners for the new iBooks app which launched at the same time as the iPad.

Following a 2 year investigation by the Dept of Justice and 50 states' attorneys general, the DOJ filed an antitrust lawsuit in early 2012 against Apple and the 5 publishers. The publishers settled before going to trial, but Apple chose to defend itself in court. After a weeks long trial in June 2013, Apple lost and was required to give up certain controls over iBooks and work with an external monitor to ensure that the antitrust violations do not recur.

image by Joan Kamberai


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Chris Meadows February 20, 2014 um 9:50 pm

Your link to the PW article is munged. Might want to fix that.

Nate Hoffelder February 20, 2014 um 10:03 pm

Fixed it, thanks.

Chris Meadows February 21, 2014 um 3:56 pm

Oh, and one more thing. The Publishers Weekly article didn’t even mention the best part of the whole affair (it might have happened after he wrote it).

Fortunately, I dug it up in the PACER documents, and did. Apple said it would be providing the documents it thought were consistent with their interpretation of the Appeals Court’s interpretation of Bromwich’s mandate. And Cote issued another order to smack them down.

Something tells me that magistrate judge is going to be getting a real judicial workout.

Nate Hoffelder February 21, 2014 um 4:12 pm

That didn’t happen until after Andrew wrote his article.

I saw his follow up article, and LOLed.

Chris Meadows February 22, 2014 um 3:01 am

It honestly amazes me some people can still go on thinking that the appeals court "restricting" Bromwich to the duties that the final order had already assigned him was even half a win for Apple. It’s pretty clear that Bromwich is going to go right on requesting the same documents and interviews and Apple is going to go right on trying to stonewall them as usual.

I suspect Judge Cote foresaw this clearly, which is why she broadened the duties of the magistrate judge to mediating all disputes between Apple and the monitor rather than just the salary. It’s probably cheaper than ulcer medication.

Mackay Bell February 22, 2014 um 8:37 am

Right or wrong, if you look at it from Apple’s standpoint, if they believe Cote is biased, the more she is limited in what she can do, the more oversight that is applied to her decisions, the better things are.

So yes, still see this as a half-win. At minimum, it’s a typical slow down the paperwork until you can win on appeal strategy.

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