In briefing completed this evening, Apple moved to stay the portion of the injunction Judge Cote imposed in the e-books price-fixing case relating to an external antitrust monitor that Apple contends is improperly acting as an adversary in violation of the Constitution’s separation of powers and the federal rules. (We covered Apple’s earlier objection to the monitor here. Prior posts on the case, proving more background, are here.) Apple’s moving brief argues:
The “external compliance monitor” appointed by the Court, Michael Bromwich, is conducting a roving investigation that is interfering with Apple’s business operations, risking the public disclosure of privileged and confidential information, and imposing substantial and rapidly escalating costs on Apple that it will never be able to recover if it prevails on its pending appeal of this Court’s Final Judgment and the injunction. The injunction, especially as it is being interpreted and implemented by Mr. Bromwich as the Court’s agent, is flatly unconstitutional, and will be reversed on appeal. Neither the Federal Rules of Civil Procedure nor Article III of the Constitution authorizes the appointment of such a monitor.. . . The significant interference with Apple’s business operations, and the unrecoverable costs being imposed on Apple, constitute clear irreparable injury. Even if Apple prevails on appeal, the two-year monitorship will be (at least nearly) completed by that point, and all the very real costs imposed on Apple and the harm and disruption to its business from Mr. Bromwich’s invasive investigation will have inflicted damage that neither Apple nor the Court will be able to undo.
The plaintiffs argue in opposition:
Stripped of its blustery rhetoric and personal attacks, Apple’s motion is about its desire to shield its highest-level executives and Board members from the perceived inconvenience of having to sit for . . . interviews. There is nothing improper about Mr. Bromwich’s request to interview the people with ultimate responsibility for overseeing Apple’s compliance with the law, nor is there anything remarkable about any action that Mr. Bromwich has undertaken in connection with his role as External Compliance Monitor. What is remarkable, and wholly unbelievable, is Apple’s argument that Mr. Bromwich’s requests for one-hour interviews of its Board members and senior executives will result in a “loss of market share growth” and “interference with the development and marketing of new and innovative products.” Stay Mem. at 18. Apple’s obstinance in the face of its adjudicated antitrust liability raises serious doubts about its commitment to devoting the time and effort necessary to ensure “that the government need never again expend its resources to bring Apple into court for violations of the country’s antitrust laws.” Aug. 27, 2013 Tr. at 17:10-14.
And in the reply brief filed this evening, Apple responds that Mr. Bromwich’s role in opposing the motion is itself grounds for disqualification and a stay pending appeal:
Rule 53 requires that a special master disqualify himself under any circumstances in which a judge would need to disqualify himself. Fed. R. Civ. P. 53(a)(2). There can be no question that Mr. Bromwich must be disqualified under the foregoing standards. His submission of a lengthy declaration (inaccurately) testifying about disputed evidentiary facts in support of plaintiffs’ opposition to Apple’s motion for a stay is grossly inappropriate behavior for someone appointed by the Court purportedly to serve as the Court’s agent in carrying out its judgment and judicial functions. He produced to plaintiffs communications from Apple to Mr. Bromwich that plaintiffs were not copied on (the exhibits), and surely collaborated and discussed his declaration ex parte with plaintiffs before filing it, which raises a host of questions, including the nature of those conversations, whether plaintiffs assisted with the declaration, whether Apple is being charged for his time spent drafting the declaration—all of which would be plainly inappropriate. By literally becoming a witness testifying for the plaintiffs in a contested proceeding against Apple, Mr. Bromwich has now made it clear that that he “has a personal bias or prejudice concerning a party, [and] personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). Indeed, Mr. Bromwich’s declaration proves Apple’s point—that he is not disinterested, that he has taken an adversarial, rather than judicial, stance towards Apple . . . . If the judge presiding over a case filed a declaration on behalf of one of the parties in the litigation, the judge’s impartiality in the case would most certainly be questioned. So too if the judge had a financial interest in the proceedings and, for example, were paid more for each witness who testified or for each day of trial proceedings (as Mr. Bromwich effectively is here), the judge would be forced to disqualify himself.