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Upsetting the Apple Cart?
Observers of federal compliance monitors are accustomed to seeing them appointed after negotiation, commonly by deferred prosecution agreements (DPAs) in criminal matters or by consent decrees in civil matters. The monitorship in the Apple e-books antitrust case is a notable exception, in that the monitor, Michael Bromwich, was appointed by injunction after trial. The litigation surrounding the Apple monitor's appointment illustrates pitfalls that can arise when monitoring relationships become adversarial, and it provides useful guidance for the future.
The Case
On July 10, 2013, following a bench trial, Judge Denise Cote of the Southern District of New York found for the plaintiffs (the Department of Justice [DOJ] and more than 30 states and territories), and concluded that Apple conspired with major book publishers to raise e-book prices collectively, in violation of Section 1 of the Sherman Act. U.S. v. Apple, Inc., 952 F. Supp. 2d 638 (S.D.N.Y. 2013), aff'd, 791 F.3d 290 (2d Cir. 2015). Judge Cote issued a permanent injunction and appointed the external monitor, pursuant to the Master provision of Fed. R. Civ. P. 53(a).
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