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From Antitrust Law Daily, January 8, 2014

Apple seeks removal of antitrust compliance monitor

By Jeffrey May, J.D.

Apple, Inc. sent a letter to Judge Denise Cote of the federal district court in New York City yesterday, asking that a court-appointed external compliance monitor (ECM) be disqualified. The ECM—Michael Bromwich—was appointed under the terms of a Final Judgment (2013-2 Trade Cases ¶78,506), which was imposed on Apple after it was found to have orchestrated a conspiracy among publishers to fix retail prices for electronic books or e-books. The Department of Justice Antitrust Division had called for the inclusion of the ECM requirement in the Final Judgment over Apple’s strenuous objections.

The ECM has the power and authority to review and evaluate Apple’s existing internal antitrust compliance policies and procedures and a training program required by the final judgment. The final judgment makes Apple responsible for the costs of the monitor—costs that the company has called “extraordinary.”

In recent months, Apple has raised a number of objections about the ECM. In its letter to the court yesterday, Apple contended that the ECM’s “impartiality might reasonably be questioned” and that he “has a personal bias or prejudice.” The company also suggests that the ECM has “expanded his mandate beyond the terms of the Final Judgment” and “exceeded his authority under the Final Judgment.” In addition, Apple questioned the ECM’s efforts to make direct contact with company personnel outside the presence of counsel.

Because Apple has been unable to resolve its objections to the ECM’s conduct with the government under the procedures set forth in the Final Judgment, it has asked the court to intervene and resolve the dispute.

Attorneys: Theodore J. Boutrous, Jr. (Gibson, Dunn & Crutcher, LLP) for Apple, Inc.

Companies: Apple, Inc.

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