Unites States of America v. Apple, Inc. et al

Filing 412

DECLARATION of THEODORE J. BOUTROUS, JR. in Support re: 411 Objection (non-motion). Document filed by Apple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Boutrous, Theodore)

Exhibit A

Theodore J. Boutrous Jr.
Direct: +1 213.229.7804
Fax: [phone]
[e-mail]

October 31, 2013
VIA E-MAIL
Michael R. Bromwich
The Bromwich Group LLC
901 New York Avenue, NW 5th Floor
Washington, D.C. 20001
Re:

External Antitrust Compliance Monitoring

Dear Michael:
It was a pleasure meeting you last week, and Apple looks forward to working with
you to achieve our shared objective of developing a comprehensive and effective antitrust
training program consistent with Judge Cote’s Final Judgment. Apple is fully committed to
ensuring that its antitrust training program, and its policies and procedures related thereto,
are both robust and effective.
I am writing to follow up on three issues arising from our discussion last week and
your recent correspondence (letter of October 23, 20131 and e-mails on October 26 and 29,
2013). First, Apple believes that the timing and scope of your requests are inconsistent with
the letter and spirit of the Final Judgment. Judge Cote was very clear that the injunction
should be narrowly tailored to address the antitrust violation she found in this case and
sought to avoid unnecessarily burdening Apple or limiting its ability to innovate and do
business in this dynamic industry. See Hearing Transcript, United States v. Apple Inc., et al.,
No. 1:12-CV-2826, at 8-9 (Aug. 27, 2013) (“I want this injunction to rest as lightly as
possible on the way Apple runs its business.”) (hereinafter “Aug. 27, 2013 Hearing Tr.”).2
Notably in this regard, the Final Judgment provides that the External Compliance Monitor’s
review of Apple’s internal antitrust compliance policies and procedures and antitrust training
program is not to commence until “90 days after his or her appointment.” Final Judgment at
§ VI.C. Second, Apple also has concerns over the financial terms of your engagement,
which the Final Judgment requires be “reasonable and customary” and approved by the
1

As you are aware, Apple received a letter from you, in draft form, on October 23, 2013, which was not
finalized until October 26, 2013.
2

See also Aug. 27, 2013 Hearing Tr. at 27 (“I’m trying to think about, as I’ve indicated, where the real risks are
and to minimize the burdens on Apple.”)

October 31, 2013
Page 2

Department of Justice (“DOJ”). Third, we also need to ensure that the confidentiality of any
information Apple may share with you during the course of your activities as monitor is
appropriately protected.
Apple is hopeful that these issues can be resolved quickly so that we can move
forward together to achieve the objectives of the Final Judgment. Each of these issues is
discussed in more detail below.
1.

Timing and Scope of Monitor’s Responsibilities

As you mentioned at the outset of our introductory meeting, the Final Judgment
defines the scope of your responsibilities in a manner that is clear and straightforward. The
monitor’s primary responsibility is to “conduct a review . . . [of] Apple’s internal antitrust
compliance policies and procedures, as they exist 90 days after his or her appointment” and
to “also conduct a review to assess whether Apple’s training program, required by Section
V.C of this Final Judgment, as it exists 90 days after his or her appointment, is sufficiently
comprehensive and effective.” Final Judgment at § VI.C (emphasis added).
During the August 27 hearing Judge Cote explained, “I don’t think that the [Monitor]
should conduct a review or assessment of the current policies. I would expect that Apple
would revise its current policy substantially and procedures and create an effective training
program. That will require some time. So I think this should be revised to have the
[Monitor] doing an assessment in three months from appointment and beginning to engage
Apple in a discussion at that point.” Aug. 27, 2013 Hearing Tr. at 20-21(emphasis added).
Apple is in the process of revising and enhancing its compliance training programs to
ensure that they are robust, comprehensive, effective, and compliant with the terms of the
Final Judgment. In this regard, Apple will soon be bringing on board its new Antitrust
Compliance Officer, as directed by the Final Judgment, and adding new lawyers with
antitrust compliance expertise in the legal department. In light of the express language of the
Final Judgment, as well as Judge Cote’s elaboration at the August 27 hearing, the time period
for your review of Apple’s antitrust policies and procedures and training program does not
commence until January 14, 2013 (90 days from the date of appointment).
Accordingly, your request to begin interviewing Apple’s entire board and its
executive team, as well as additional senior executives on November 18 is premature, not
authorized by the Final Judgment, and would not only be disruptive to Apple’s business
operations but also directly contrary to Judge Cote’s intent. We fully understand and expect
that there will be a need to conduct interviews with certain personnel at some point once
Apple’s new training programs are up and running. And you have Apple’s assurance that it
will be a most willing partner in facilitating those meetings. Furthermore, there will be
ample opportunity over the course of your engagement to determine whether Apple’s new
training program is consistent with the Judge’s Order and is effective in its impact.

October 31, 2013
Page 3

However, it makes no sense, and would be extremely disruptive, to schedule those interviews
before Apple has completed its internal assessment and developed its new antitrust training
program.
2.

Financial Terms and Fiduciary Responsibilities

The Final Judgment requires the monitor to operate on “reasonable and customary
terms” that are “consistent with reasonable expense guidelines.” Final Judgment at § VI.I.
Apple has already raised concerns regarding your hourly fees, the administrative fee you
seek to impose in addition to those fees, the need for additional personnel, and finally,
adherence to a defined expense policy. Apple does not believe your proposed fee structure is
reasonable and customary, whether for a monitor or a lawyer, and respectfully objects to it.
Moreover, your dictate that we simply accept these fees and costs at face value without any
support or explanation is inconsistent with the company’s fiduciary responsibilities to its
shareholders, and to the customary practices of Apple and other companies in conducting
business or legal activities. And, while the Final Judgment requires DOJ and Plaintiff States
to approve your fee and expense structure (see Final Judgment at § VI.I), it appears from
your correspondence you have not secured such approval but instead have simply submitted
your proposed approach to DOJ and it has not acted upon it.
3.

Confidentiality

To protect the confidentiality of any information Apple may share with you during
the monitorship, we have attached a non-disclosure agreement for your signature that is
consistent with Apple’s standard confidentiality agreements and the Stipulated Protective
Order in this matter. Apple also reserves its right to assert attorney-client privilege and work
product protections as appropriate throughout this process. Finally, Apple again requests
that, consistent with its policies, you, the Bromwich Group, Goodwin Procter, and Fried
Frank refrain from using Apple’s name in any marketing materials or media communications
like the press release Goodwin Procter issued announcing your appointment and containing a
direct quote from you.
*****
Concurrent with this response, Apple has submitted to DOJ and Plaintiff States a
notice of its objections. Please direct any future communications on these issues to me. As
we work to resolve these issues, Apple will continue to focus its efforts on its internal
assessment and enhancement of its antitrust policies and procedures and the training program
mandated by the Final Judgment. As you know, Apple has retained seasoned antitrust
practitioners and former government officials at the law firm of Simpson Thacher to aid it in
this process. We appreciate an honest and open dialogue on these issues, and look forward to

October 31, 2013
Page 4

working with you to establish antitrust compliance policies and training programs that are
comprehensive and effective in satisfaction of the Final Judgment.

Very truly yours,
s/ Theodore J. Boutrous, Jr.
Theodore J. Boutrous, Jr.

Enclosure

CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the “Agreement”) is entered into and is effective as
of ________ (the “Effective Date”) by and between Michael Bromwich, on behalf of the Bromwich
Group, and Bernard Nigro (hereinafter “ECM”) and Apple Inc. (“Apple” and, collectively, the
“Parties”) in connection with Section VI.I of the September 5, 2013 Final Judgment (the “Final
Judgment”) entered in United States of America v. Apple, Inc., No. 1:12-CV-2826 (S.D.N.Y. Sept.
5, 2013) (the “Action”), and consistent with the May 7, 2012 Stipulated Protective Order entered in
the Action (the “Protective Order”).
Whereas, the Final Judgment contemplates that the Parties will execute customary
confidentiality agreements in connection with ECM’s monitoring responsibilities pursuant to the
Final Judgment; and
Whereas, Apple contemplates that certain highly sensitive information and materials
may be disclosed in connection with ECM’s performance of his responsibilities pursuant to the
Final Judgment; and
Whereas, the Parties agree that such materials should be kept confidential subject to
the terms and conditions set forth below,
NOW, THEREFORE, the Parties do hereby agree and stipulate as follows:
1.
DEFINITION OF CONFIDENTIAL INFORMATION. ECM agrees that all
information disclosed by Apple to ECM in any manner in connection with ECM’s monitoring
responsibilities pursuant to the Final Judgment will be considered and referred to collectively in this
Agreement as “Confidential Information.” Confidential Information, however, does not include
information that: (a) is now or subsequently becomes generally available to the public through no
fault or breach on the part of ECM; (b) ECM can demonstrate to have had rightfully in his
possession prior to disclosure to ECM by Apple; (c) is independently developed by ECM without
the use of any Confidential Information; or (d) ECM rightfully obtains from a third-party who has
the right to transfer or disclose it to ECM without limitation.
2.
NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. ECM
agrees to protect Apple’s Confidential Information, using at least the same degree of care that he
uses to protect his own confidential and proprietary information of similar importance, but no less
than a reasonable degree of care. ECM agrees to use Apple’s Confidential Information for the sole
purpose of performing his monitoring responsibilities in connection with the Final Judgment. ECM
will not disclose, publish, or disseminate Confidential Information to anyone, and will not use
Confidential Information in any manner, except as set forth in this Agreement.
3.
INADVERTENT DISCLOSURE BY APPLE OF PRIVILEGED OR PROTECTED
INFORMATION. If Apple inadvertently discloses to ECM material subject to the attorney-client
privilege, work-product protection, or any other applicable privilege or protection that ECM is not
authorized to receive pursuant to the Final Judgment, the applicable privilege and/or protection will
not be waived if Apple makes a request for return of such inadvertently produced material promptly
after learning of its inadvertent production. Upon such notice, ECM will promptly return or destroy
the materials subject to privilege and/or protection.

2
4.
INADVERTENT DISCLOSURE BY ECM OF CONFIDENTIAL INFORMATION.
In the event of disclosure by ECM of any Confidential Information to any person or persons not
authorized to receive such disclosure pursuant to this Agreement, ECM will promptly notify Apple
of the disclosure and provide to Apple all known relevant information concerning the nature and
circumstances of the disclosure. ECM will promptly thereafter take all reasonable measures to
retrieve the improperly disclosed material and to ensure that no further or greater unauthorized
disclosure and/or use thereof is made. Unauthorized or inadvertent disclosure will not change the
confidential status of any Confidential Information.
5.
AUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY ECM.
Information and materials designated as Confidential Information pursuant to this Agreement may
only be disclosed by ECM to the persons and in the manner set forth below:
(a)

To the extent necessary to discharge ECM’s monitoring responsibilities
pursuant to the Final Judgment, attorneys, employees, and associates of
ECM, including attorneys and employees of The Bromwich Group LLC, and
attorneys and employees of Fried, Frank, Harris, Schriver & Jacobson.

(b)

United States Department of Justice attorneys and employees, in connection
with their enforcement or monitoring of compliance with the Final Judgment;

(c)

Attorneys and employees of the Attorney General’s Office of any
Representative Plaintiff State (as defined in the Final Judgment), in
connection with their enforcement or monitoring of compliance with the
Final Judgment; and

(d)

The Court and all persons assisting the Court in the Action, in connection
with enforcement or monitoring of the Final Judgment, including law clerks,
court reporters, and stenographic or clerical personnel.

In addition, before any information designated as Confidential Information may be disclosed to any
person described in subparagraphs 5(a)-(c) above, he or she must first read this Agreement or must
have otherwise been instructed on his or her obligations pursuant to this Agreement, and must
execute the Agreement included as Appendix A hereto prior to receiving Confidential Information.
Each individual described in subparagraphs 5(a)-(c) above and to whom Confidential Information is
disclosed must not disclose that information to any other individual, except as set forth in this
Agreement.
Nothing in this Agreement prevents disclosure by ECM of Confidential Information to any current
employee of Apple, and nothing in this Agreement prevents the United States or any Representative
Plaintiff State (as defined in the Final Judgment), subject to taking appropriate steps to preserve the
confidentiality of such information, from using or disclosing Confidential Information as permitted
or required by the Final Judgment, for law enforcement purposes, or as may otherwise be required
by law or binding court order.

3
6.

NOTICE OF DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION IN
COURT PROCEEDINGS. Before disclosure of Confidential Information is made to any person or
persons not authorized to receive the information pursuant to paragraph 5 above, ECM must give
Apple at least ten (10) calendar days’ advance notice in writing, including the name(s), address(es),
and employer(s) of the person(s) to whom the disclosure will be made and the reason for the
disclosure. If, within that ten-day period, Apple objects to the disclosure, ECM must make a
written request to the United States and Representative Plaintiff States (as defined in the Final
Judgment) within ten (10) calendar days’ receipt of Apple’s objection. In addition, in connection
with any disclosure or use of Confidential Information in any court proceeding, ECM must take
reasonable steps to maintain the confidentiality of those materials, including but not limited to filing
documents under seal and satisfying the other requirements of paragraph 20 of the Protective Order.
7.

PROCEDURES UPON COMPLETION OF ECM’S MONITORING
RESPONSIBILITIES. The obligations imposed by this Agreement survive the termination of ECM’s
monitoring responsibilities as set forth in the Final Judgment. Within ninety (90) days after
termination of ECM’s monitoring responsibilities in connection with the Final Judgment, ECM
must certify to Apple in writing that it has destroyed or returned to Apple all Confidential
Information and that it has endeavored in good faith to ensure that any Confidential Information
disclosed pursuant to paragraph 5 above has been destroyed or returned to Apple. However,
nothing in this paragraph prevents the United States or the Representative Plaintiff States (as
defined in the Final Judgment) from retaining or using Confidential Information, subject to taking
appropriate steps to preserve the confidentiality of such information, as permitted or required by the
Final Judgment, for law enforcement purposes, or as may otherwise be required by law or binding
court order.
8.
EQUITABLE RELIEF. ECM hereby acknowledges that unauthorized
disclosure or use of Confidential Information could cause irreparable harm and significant injury to
Apple that may be difficult to ascertain. Accordingly, ECM agrees that Apple will have the right to
seek and obtain immediate injunctive relief to enforce obligations under this Agreement in addition
to any other rights and remedies it may have.
9.
NO IMPLIED WAIVER. Apple’s failure or delay in exercising any of its
rights will not constitute a waiver of such rights unless expressly waived in writing.
10.
ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement, in
conjunction with the terms set forth in the Final Judgment, constitutes the entire Agreement with
respect to the Confidential Information disclosed pursuant to this Agreement and supersedes all
prior or contemporaneous oral or written Agreements concerning such Confidential Information.
This Agreement may not be amended except by written Agreement signed by authorized
representatives of both Parties. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, excluding that body of California law concerning conflicts
of law. The Parties further submit to and waive any objections to the exclusive jurisdiction of and
venue in the United States District Court for the Southern District of New York for any litigation
arising out of this Agreement.

4
Understood and agreed to by the parties:
MICHAEL BROMWICH:
By: _______________________________
Name: _____________________________
Title: ______________________________
BERNARD NIGRO:
By: _______________________________
Name: _____________________________
Title: ______________________________
On behalf of APPLE INC.:
By: _______________________________
Name: _____________________________
Title: ______________________________

Appendix A
I am employed as ______________ by __________________. I hereby certify that:
1.
I have read the Confidentiality Agreement between Michael Bromwich and
Apple Inc. (the “Agreement”) and understand its terms.
2.
I agree to be bound by the terms of the Agreement, including the terms
relating to disclosure of Confidential Information (as defined in the Agreement) in paragraph 5 and
the terms relating to the destruction or return of Confidential Information in paragraph 7 of the
Agreement.
3.
I agree to use the information provided to me in connection with the
Agreement only for the purpose of enforcement and monitoring of the Final Judgment (as defined in
the Agreement).
4.
I understand that my failure to abide by the terms of the Agreement will
subject me, without limitation, to liability for breach of the Agreement and this Appendix A.
5.
I submit to the jurisdiction of the United States District Court for the
Southern District of New York solely for the purpose of enforcing the terms of the Agreement and
this Appendix A and freely and knowingly waive any right I may otherwise have to object to the
jurisdiction of said court.
I make this certificate on this ______ day of _____ , ______.
By: _____________________________________
Name: ___________________________________
Title: ____________________________________

ATTACHMENT 2

Subject:

Monitoring Letter

On Oct 26, 2013, at 8:47 AM, Michael Bromwich <[e-mail]> wrote:

Dear Kyle,
Thanks very much for your response to my cover note and our draft letter. Unfortunately, I think you
may have misconceived its purpose. It was not to begin a negotiation about fees, rates, and expenses,
nor was it meant to provide you with an opportunity to provide us with guidelines that are applicable
to providers of legal services where Apple is the client -- but that are inapplicable to firms providing
independent monitoring services. It was to give you an opportunity to modify or revise the
confidentiality provision. In light of your response, it probably makes sense to execute any
enhancements to the confidentiality agreement separately. I have attached a signed copy of the
monitoring letter. The only change is the date.
Without responding to each item in your note, I wanted to clarify the following:
1. Administrative fees are completely standard for consulting firms. The Bromwich Group is not a
law firm and does not practice law. The normal range for the administrative/management fees for
consulting firms is between 10% and 25%. Therefore, the 15% is at the low end of the range.
2.

We will add additional personnel, whether from Fried Frank or elsewhere, only as necessary and appropriate. We will keep
you informed if we add personnel performing significant substantive responsibilities but not if we use a lawyer to do a discrete
research project or a legal assistant to provide support. We will do this as a courtesy and we do not intend to provide a
rationale. It will be because we need additional assistance.

3. On expenses, please advise whether your lawyers from Gibson Dunn working on this matter, your
Wilmer lawyers working on the Samsung matter in the ND of California, and other lawyers working
on high-end litigation and corporate matters follow these expense guidelines without exception. If
they do, we will seriously consider doing so. We are happy to receive from you a list of Apple's
preferred hotels.
4. We are serving as an independent compliance monitor pursuant to a Court order, not as counsel to
Apple subject to its direction and control. Accordingly, we will not be providing a budget. You are
incorrect in stating that this is standard practice in monitorships. We will do everything we
reasonably can to keep fees and expenses to a minimum. We plan to provide you each month with a
statement of the number of hours spent by each timekeeper on this matter but not to provide
descriptions of the amount of time spent on specific tasks. We will maintain such records and will
share them with the Department of Justice, the Plaintiff States, and the Court if requested to do so.
5. We will submit our invoices directly to you, or to someone you designate. We will be happy to
execute W-9s.
1

6. My consulting firm did not issue a press release. Goodwin Procter posted an item on its web site
without my advance knowledge or consent to clarify that the firm itself would not be involved in the
monitorship.
We very much look forward to your responses to the various substantive matters we discussed on
Tuesday and to your confirming the particulars of our initial visit to Cupertino the week of November
18.
Best regards.

MRB
On Fri, Oct 25, 2013 at 10:45 PM, Kyle Andeer <[e-mail]> wrote:
Dear Michael,
Thank you for sharing your draft letter It is very helpful in that it tees up a number of different issues that make
sense to address at the outset of our relationship. As you noted, the treatment of confidential information is one
of several issues that will require additional research and thought. Although the disclosure of such information
is highly unlikely given the narrow scope of the External Compliance Monitor's responsibilities, we agree that
this is an issue we should seek to address at the outset. It likely makes sense for us to execute one of our
"customary confidentiality agreements" as contemplated in the Final Judgment. Final Judgment at § VI.I, U.S.
v. Apple, Inc., No. 1:12-CV-2826 (S.D.N.Y. Sept. 5, 2013). We will provide a full response on these and other
issues in the next week, as well as a retention obligations agreement and confidentiality agreements to address
this point.
I do want to raise concerns with the compensation and expense terms outlined in your letter which are in tension
with the terms of the Final Judgment which require the External Monitor to operate on "reasonable and
customary terms" that are "consistent with reasonable expense guidelines.” Final Judgment at § VI.I, U.S. v.
Apple, Inc., No. 1:12-CV-2826 (S.D.N.Y. Sept. 5, 2013). From our perspective they do not reflect the
competitive realities of the marketplace. We expect that your firm – like all of Apple’s legal service providers –
will comply with Apple’s Outside Service Provider Policy (“OSP”) (attached) and its standard expense policy
(also attached).
1. Administrative Fee. You request that the Bromwich Group be paid a “management/ administrative fee” of
15% of all billable hours. As you will note in the attached policies, Apple does not pay any of its legal vendors
a "management/administrative fee."
2. Hourly Rates. You have requested that Apple pay you $1,100 per hour and Mr. Nigro $1,025 per
hour. These rates are very high, particularly when compared to the average rate Apple pays a law firm partner
($565 per hour). Even if one looks at the top 25%, the average rate per partner is $801 per hour. Apple is
prepared to compensate you at $800 per hour and Mr. Nigro at a rate of $700 per hour. With the foregoing
principles in mind, we also ask that you provide the hourly rate for Maria Cirincione.
3. Additional Personnel. Pursuant to Apple’s Outside Service Provider Policy, the Bromwich Group (and Fried
Frank) should notify Apple before adding new timekeepers to its team and provide a rational for the additional
resources. As you appreciate, this is a standard requirement that ensures costs do not spiral out of control.
2

4. Expense policy. Apple expects that you will adhere to its standard expense policy (attached) Apple will pay
for coach airfare, lodging at Apple preferred hotels, and per diems of $15 for breakfast, $25 for lunch and $30
for dinner. The policy also outlines our guidelines on telephone and copying charges. Apple will not reimburse
for data storage and information technology services. This is consistent with these policies is in keeping with
the “reasonable expense guidelines” language in Section VI.I of the Final Judgment.
5. Budget and Invoicing. The Bromwich Group should submit an expected budget for its services for the
coming year. As you know this is standard practice in any engagement, including in monitorships. In addition,
Apple expects that your invoices will describe time spent on tasks and a description of those tasks. Apple
reserves the right to challenge fees that are excessive, outside the scope your responsibilities, and/or unjustified
pursuant to Sections VI.I. and VI.J. of the Final Judgment.
6. Billing. Apple requires firms to submit invoices - within 30 days of service - via an electronic portal. We
can set up a meeting with our eBilling team as soon as you are ready. Apple will also require a signed W9 in
order to pay invoices for your firm.
7. Marketing. Apple does not allow the firms it works with to market their representation of Apple (see OSP at
6). We noted that your firm, Goodwin Proctor, your consulting practice, The Bromwich Group, and Mr. Nigro's
firm, Fried Frank all issued press releases announcing your appointments. We ask that you please refrain from
using Apple's name in any marketing materials or media communications.
The requests in your letter do not reflect market realities. That raises significant concerns on our part. We
sincerely hope that you will reflect on these points and that we can work out these issues without going to the
Department of Justice and the courts. Please let me know if you would like to discuss.
Best regards,
Kyle

On Oct 23, 2013, at 3:58 PM, Michael Bromwich <[e-mail]> wrote:

Dear Kyle,
I have attached a draft letter that sets forth our duties and responsibilities as the external antitrust
compliance monitor under the Final Judgment, and touches on other matters relevant to our
monitoring work, including information about fees, expenses, and confidentiality. This letter is
specifically tailored to the provision of monitoring services under the Final Judgment. Accordingly, it
is different in various ways from the engagement letter that would be appropriate if Apple were a
client of a law firm or my consulting firm.

3

Before I provided a signed version of the letter, I wanted to make sure it should be addressed to you
rather than someone else at Apple, and give you the opportunity to suggest any revisions to Section 10
of the letter dealing with confidentiality. I realize this may be a sensitive issue and I wanted to make
sure the language I have crafted is acceptable. I am willing to consider reasonable modifications.
Please confirm that you should be the recipient of this letter (or provide an alternative addressee) and
suggest any reasonable changes to the confidentiality language as promptly as you can.
Thanks very much.
MRB
<Apple Monitoring Letter -- 10-23.doc>

<Apple -- 10-26 Letter.pdf>
_______________________
Confidentiality Notice: The information contained in this e-mail and any attachments may be legally privileged and confidential. If you are not an intended recipient,
you are hereby notified that any dissemination, distribution or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify the
sender and permanently delete the e-mail and any attachments immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor
disclose all or any part of the contents to any other person. Thank you.

4