This morning, Judge Cote issued a written decision reflecting an earlier, oral order to deny Apple’s motion to stay the work of an external monitor pending appeal of the case in which Apple was found liable for antitrust violations relating to the sale of e-books. Judge Cote found that Apple had largely waived arguments about the appointment of the monitor:
[A]lthough Apple was integrally involved in the Injunction drafting process following the liability trial, it never raised during that process the constitutional issues it raised in its initial memorandum in support of a stay here, and any such arguments addressed to the terms of the Injunction as ordered would be waived for purposes of this stay motion.
She found that there was nothing improper about the monitor’s work so far, and that, to the extent further disputes arise, they could be resolved through the dispute mechanism protocol in the Court’s final injunction. In particular, she found no fault with the monitor having submitted a declaration opposing Apple’s motion:
As this Court’s agent, it was the Monitor’s duty to provide the Court with his understanding of the full factual story so that the Court could render an informed judgment, address this motion, and oversee the monitorship. It would be surprising if a party subject to a monitor could escape the monitorship by launching a cascade of attacks on the monitor and then disqualify the monitor for responding.
The opinion ends with a plea for a “reset” of relations:
The deterioration of the relationship between Apple and the Monitor is unfortunate and disappointing. Hopefully, that relationship can be “reset” and placed on a productive course. But it is strongly in the public’s interest for the Monitor to remain in place. A monitorship which succeeds in confirming the existence of a genuine and effective antitrust compliance program within Apple, is in the interest of not only the American public, but also Apple.
Prior posts on the case are here.