Apple asks U.S. appeals court to disqualify antitrust monitor

Reuters News
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Posted: Mar 10, 2015 3:41 PM

By Nate Raymond

NEW YORK (Reuters) - A U.S. appeals court on Tuesday weighed Apple Inc's latest bid to disqualify a court-appointed antitrust monitor whose activities one judge sharply questioned.

Members of the three-judge 2nd U.S. Circuit Court of Appeals in New York heard arguments focused on the actions of Michael Bromwich, who was appointed as monitor after Apple was found liable for conspiring with publishers to raise e-book prices.

Circuit Judge Dennis Jacobs focused on Bromwich's push to have the iPad maker's leadership speak with him without lawyers present, saying it implied "things may not go well" unless executives met without counsel present.

"I think you could see how that could generate substantial anxiety in the company," he said.

Apple previously also objected to Bromwich's fees, initially $1,100 an hour before being reduced to an undisclosed amount. The initial sum would leave the public "flabbergasted," said Jacobs, who ordered details on the current rates to be filed by Thursday.

Bromwich, who was not represented at the arguments, did not respond to a request for comment.

The arguments marked the second time since December that Apple appeared before the appeals court in the case.

Another three-judge panel, which included two of Tuesday's judges, seemed sympathetic in December to Apple's bid to reverse a 2013 ruling finding it liable for antitrust violations.

If Apple wins that appeal, it could jeopardize a related $450 million settlement among Apple, 33 attorneys general, and lawyers for a class of consumers.

Bromwich, a lawyer who runs a consulting group, was installed in October 2013 by U.S. District Judge Denise Cote three months after she concluded Apple played a "central role" in a conspiracy with publishers to raise e-book prices.

The publishers include Lagardere SCA's Hachette Book Group Inc, News Corp's HarperCollins Publishers LLC, Penguin Group Inc, CBS Corp's Simon & Schuster Inc and Verlagsgruppe Georg von Holtzbrinck GmbH's Macmillan.

Since Bromwich's appointment, Apple has repeatedly tried to have him ousted, saying he was aggressively seeking interviews with executives and engaging in private discussions with the Justice Department.

"This really is a roving commission," Theodore Boutrous, Apple's lawyer, argued Tuesday.

Finnuala Tessier, a Justice Department attorney, countered that Bromwich never met with Apple executives privately without lawyers present. She also said private discussions with the Justice Department were necessary and expected.

"Monitorships would be unworkable otherwise," she said.

The case is U.S. v. Apple Inc, 2nd U.S. Circuit Court of Appeals, No. 14-60.

(Reporting by Nate Raymond; Editing by Noeleen Walder and Lisa Shumaker)