2nd Circuit nixes Apple campaign to boot BigLaw partner as court-appointed monitor in e-book case
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A federal appeals court has nixed a campaign by Apple Inc. to replace a monitor appointed by a federal judge to oversee the company’s compliance with her orders in e-book antitrust litigation.
“This appeal touches upon the scope of a district court’s power under Federal Rule of Civil Procedure 53 to create and modify a monitorship over the objection of the monitored party; the professional and structural constraints on that monitor’s activities; and the remedy available to the monitored party when it believes that the monitor has overreached,” writes the New York-based 2nd U.S. Circuit Court of Appeals in its Thursday opinion (PDF).
“These largely procedural questions have considerable resonance,” the court said, “because the fairness and integrity of the courts can be compromised by inadequate constraint on a monitor’s aggressive use of judicial power.”
The three-judge panel criticized the monitor, lawyer and management consultant Michael Bromwich, for filing a brief in support of the government’s position that he should not be replaced rather than filing his own pleading, and indicated that his initial expectations of Apple may have been unreasonable. However, the panel found no showing in the appellate record of conduct that required his removal.
Meanwhile, a concurring opinion blames Apple for not timely utilizing a procedure set up by the district court for raising any objections to the process rather than “silently accumulating grievances and springing them on the district court en masse.”
Differing expectations on the part of Bromwich and Apple set the stage for a clash of wills, the 2nd Circuit explains, and the fact that fees for Bromwich’s services were quickly adding up, at a billable rate of over $1,000 per hour, didn’t help.
“As even the [U.S. government] plaintiffs concede, Bromwich was expecting from Apple the level of submissiveness that he had found in past monitorship engagements, which had all resulted from consent decrees rather than from adverse judgments,” the opinion says. “Bromwich was thus unprepared for the formal and adversarial context of a monitorship imposed over the objection of the monitored party.”
Still ongoing are two other appeals concerning the federal district court’s finding on liability on Apple’s part in the e-book litigation and the injunction that was entered to enforce the judgment, the 2nd Circuit notes.
Hat tip: Reuters.
Related coverage:
ABAJournal.com: “Federal judge rebukes Apple for its conduct to court-appointed monitor, defends his $1K hourly rate”
ABAJournal.com: “2nd Circuit puts court-appointed monitor back to work in Apple e-book case but limits his duties”
