At a hearing, U.S. District Judge Denise Cote in Manhattan denied
Apple's request to stay an order requiring an external compliance
monitor pending the company's appeal.
"I want the monitorship to succeed for Apple," she said.
The judge also said there was "nothing improper" about a declaration
filed by a lawyer chosen to serve as monitor, Michael Bromwich, that
became the basis of Apple seeking his disqualification.
Cote said she will promptly issue a decision explaining her
reasoning. Apple will then have 48 hours to seek an emergency stay
from the federal appeals court in New York, she said.
Theodore Boutrous, a lawyer for Apple, said Apple would appeal. A
spokeswoman for the Justice Department declined immediate comment.
The hearing was the latest to spill out of a growing battle stemming
from Apple's objections to the monitor. In October, Cote appointed
Bromwich, a former Justice Department inspector general, three
months after she found Apple liable for conspiring with five
publishers to raise e-book prices.
In November, Apple complained he had been trying aggressively to
interview top executives, even though his mandate called for him to
review the company's antitrust policies 90 days after his
Apple also complained about his proposed hourly fee rate of $1,100,
which Apple said gave him an incentive to run, "as broad and
intrusive investigation as possible."
The Justice Department came to Bromwich's defense. He himself also
filed a declaration disputing Apple's claims that he had engaged in
a "roving" investigation and detailing a series of unsuccessful
attempts to gain Apple's cooperation.
Apple subsequently moved for his disqualification, saying Bromwich
had a personal bias against the company and had engaged in "grossly
inappropriate behavior" through filing the declaration.
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At the hearing on Monday, Cote said it had become clear, "that parts
of Apple have been resistant to the monitor performing his duties."
She hoped Apple cooperates with the monitor going forward, and urged
the parties to bring disputes to her attention sooner.
As for Bromwich's rates, the judge said it was not surprising that,
"lawyers get paid a lot of money."
She cited a survey of 350 law firms that the National Law Journal
published on Monday reporting that Gibson, Dunn & Crutcher, the law
firm representing Apple, had a partner with the highest billing rate
in the country, $1,800 an hour. The average rate for lawyers at the
firm was $980 an hour, she added.
The Justice Department says Bromwich has indicated a willingness
nonetheless to adjust his fee. Cote said she would refer the dispute
to a magistrate, "so we can resolve this fee dispute and put it
The case is U.S. v Apple Inc et al, U.S. District Court, Southern
District of New York, 12-2826.
(Reporting by Nate Raymond in New York;
editing by Leslie Adler, Bernard Orr and Andre Grenon)
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