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Apple's STILL trying to shake off court-imposed antitrust monitor

Fruity firm takes supervision whinge to federal appeals court

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Apple hasn't given up the fight to get its court-appointed antitrust monitor thrown out as it takes its case to the US Appeals Court.

The fruity firm has been trying to persuade the courts to put off the monitor's appointment until it has appealed against the guilty verdict imposed on it last year for conspiring to fix ebook prices.

Although Apple lost out at the district court, it has pleaded with the Second US Circuit Court of Appeals to put a stop to Michael Bromwich's oversight duties while the court considers the company's request to get rid of him altogether.

Apple is using the same arguments that were already rejected by the original court.

"The monitorship the district court imposed on Apple is unprecedented, impermissible and unconstitutional," it complained in a court filing. "The court authorised the monitor to exercise authority that is not "judicial", to engage in ex parte discussions with plaintiffs even while the state plaintiffs are seeking hundreds of millions of dollars from Apple in another proceeding, to incur significant and unrecoverable fees that Apple is supposed to pay and to interview anyone at Apple and demand any Apple documents,” whined the fruity firm's court filing.

It added: "The monitor, for his part, has abandoned any semblance of objectivity."

Apple has asked the court to put a stay on the monitorship while it appeals both the decision that it should have a monitor and the original guilty verdict that got it into this position.

In the appeals court yesterday Apple's attorney Theodore Boutrous said that the firm would suffer irreparable harm if the monitor was allowed to keep working while the court decides if his job is even legal in the first place, Reuters reported.

But the lawyer for the Department of Justice said that the monitor was essential to make sure that Apple obeys antitrust laws.

"The preliminary injunction demands that Apple fully understands why and how it needs to comply with antitrust laws, not a year from now … but today," Finnuala Tessier said.

Apple tried to convince the three-judge panel, as it had previously tried to convince District Judge Denise Cote, that Bromwich was acting too aggressively and overcharging for his services. It also said that Bromwich's powers were too liberal, allowing him too much access to the firm.

The judges seemed inclined to stick with Cote's reading of things, however. Judge Gerard Lynch remarked that maybe if top execs "had spent some of their valuable time keeping the company from violating antitrust laws, they wouldn't be in this position". He also suggested that if Browich's remit was too broad, than maybe just outlining his limitations would be enough for Apple.

Bromwich's work is on hold for now while the judges decide whether to put a longer stay on the position or not. ®

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