Apple 2.0

Covering the business that Steve Jobs built

Apple to judge: You and your antitrust monitor are way out of line

November 29, 2013: 11:20 AM ET

The $138,432 he charged for his first two weeks on the job is the least of Apple's objections.

Bromwich

Bromwich

FORTUNE -- Michael Bromwich is driving Apple (AAPL) crazy.

This should not come as a surprise. Bromwich, appointed by U.S. District Judge Denise Cote last month to make sure Apple does everything she ordered when she found Apple guilty of conspiring to fix the price of e-books, is an old hand at this kind of thing. A former inspector general, he has supervised high-profile investigations of the DOJ, the FBI and the CIA. He's got his way of doing things.

Apple also has its way of doing things. Its corporate culture is famously insular and its leadership unaccustomed to meddling from outsiders, never mind emissaries from the Southern District of New York. Apple's senior staff still still doesn't think they did anything wrong when they challenged Amazon's (AMZN) monopoly of the e-book market in 2010 -- no matter what the court ruled last summer.

Bromwich, Apple complained Wednesday, has already gone beyond his mandate -- not waiting the 90 days outlined in the Judge's order, but demanding immediate, unfettered access to Apple's senior staff and board members, including Tim Cook, Al Gore, Jony Ive and executives who had nothing to do with e-books.

Even worse, from Apple's point of view, Judge Cote issued an order last week that not only backed Bromwich in his disputes with Apple, but handed him extra investigative powers. These include license to interview Apple execs without a lawyer present, to tell the judge in private what he's learned, to preserve any documents he comes across related to his duties and to make them public when, in his view, doing so serves "the interest of justice."

Apple's sharply worded motion raises several legal objections -- including the constitutionality of being "investigated by an individual whose personal financial interest is for as broad and lengthy an investigation as possible." (The fact that Bromwich billed Apple more for two weeks work -- $138,432 -- than most federal judges earn in nine months was already making headlines Friday.)

Judge Cote.

Judge Cote.

But the harsh language of Apple's motion also leaves no doubt that the company believes the judge has dropped any pretense of impartiality and may have given it grounds for "judicial disqualification."

In other words, if she doesn't back down, Apple could try to get Cote -- a senior federal judge with 19 years on the bench -- pulled off the case.

"No litigant," it concludes, "could possibly take comfort in the objectiveness of a court's judgment in ruling on fiercely contested motions and proceedings when the court is regularly meeting privately with a judicially appointed investigator charged with looking to uncover evidence of possible wrongdoing by that litigant. And to the extent the Court actually intended to unleash Mr. Bromwich as its agent in this manner, such order transforms the Court from an impartial arbiter of "Cases" and "Controversies" into Apple's litigation adversary."

Michael Bromwich was not available for comment.

UPDATE: AllThingsD has posted a letter Bromwich sent to Apple's Board of Directors that sheds some light on how the process looks from his point of view. "Our requests to meet with key Apple personnel have been largely ignored, and when not ignored the responses have been extremely slow in coming," he writes. "The company's has spent far more time challenging the terms of our compensation and raising other objections related to administrative matters, even though the Court Order provide no role for Apple in setting the monitor's compensation."

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Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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