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 L

The Bromwich Group LLC
901 New York Avenue, NW, 5th Floor
Washington, DC 20001
November 5, 2013

BY EMAIL
D. Bruce Sewell, Esq.
Senior Vice President and General Counsel
Apple, Inc.
One Infinite Loop
Cupertino, CA 95014
Dear Bruce:
Thanks very much for your letter of November 4. I am pleased to hear about the
work that Apple has been doing with respect to antitrust compliance since the Court
entered the Final Judgment on September 5, including the selection of the internal
Antitrust Compliance Officer (“ACO”). Based on your letter, it appears that we fully
share the objective of establishing and maintaining a professional, constructive, and
collaborative relationship.
First, let me briefly respond to your suggestion that our interactions with Apple
should not begin in any meaningful way until the expiration of the 90 days provided by
the Final Judgment. The Final Judgment makes clear that our initial assessment of the
company’s antitrust policies, procedures, and training should be as they exist as of
January 14, 2014, but the Final Judgment in no way precludes us from beginning our
work upon appointment. Indeed, in my interviews during the monitor selection
process with the Department of Justice and the Plaintiff States, and separately with
Judge Cote, I made clear that one of the keys to a successful monitorship was getting off
to a fast start and promptly making contact with top executives at the company,
including conducting preliminary interviews. These early contacts lay the groundwork

D. Bruce Sewell, Esq.
November 5, 2013
Page 2
for the type of relationship that benefits both the company and the monitor. There was
no suggestion at any time from anyone that these activities needed to be deferred for 90
days after the appointment of the External Compliance Monitor.
I have no doubt, as you suggest, that your newly selected ACO will be quite busy
over the next two months, but I also have no doubt that he or she would be available for
a brief meeting within the next 2-3 weeks. I am sure the same is true for many of the
senior executives in the company, including you and Mr. Cook. That is why from the
outset we have been willing to limit each of these initial sessions to one hour. From our
perspective, we would benefit from an early window into the work the company has
been doing since the Final Judgment. From your perspective, there is a substantial
benefit in allowing us to become aware of those efforts as they are taking place rather
than having them summarized for the first time when they are complete. It would
allow us to comment about such activities in our semi-annual reports and make clear
that our information was based on something other than an after-the-fact report.
As I am sure you are aware, monitors often have specific deadlines, some of
which can be very demanding. Even so, the existence of such deadlines has never, to
my knowledge, been viewed as a reason for the monitor to defer his work until the
deadlines have passed. I have been involved in four monitorships over the past eleven
years, three as monitor and one as counsel to the monitored entity. In every case, the
monitor has met with the top management within 14 days of appointment. Those
introductory meetings and interviews have helped create the foundation for the type of
relationships that must exist between the monitor and entity being monitored. In none
of these cases was the work of the monitor deferred until any of the deadlines, even
those that were most demanding, had passed.
As to your concern about a request for “voluminous historical documents,” I am
afraid you may have been misinformed. Our requests were limited to the company’s
compliance policies and training materials, organization charts for three specific
business divisions, information that describes the company’s compliance reporting
structure and the roles played by the Audit and Risk Oversight Committees, and any
materials referred to in an August 19 letter sent to the Department of Justice, which was
provided to us in New York on October 22, that are not duplicative of our other
requests. These are very specific and narrowly drawn requests, and we have heard no
previous suggestion that the volume was viewed as significant. My impression is that
they were viewed as quite modest and reasonable. If that impression is incorrect, we
would welcome further discussion on the issue.

D. Bruce Sewell, Esq.
November 5, 2013
Page 3
I am scheduled to speak with Mr. Boutrous tomorrow to discuss these issues.
Our hope is that you will fully authorize him to resolve these issues so that we can
move forward without further delay. I ask that you support our efforts to begin our
work as promptly as possible, including meeting with me at your earliest convenience.
Please feel free to contact me at any time to discuss these matters directly. I can
be reached at 202-682-4268.
Very truly yours,

Michael R. Bromwich
cc:

Tim Cook, Chief Executive Officer
Theodore J. Boutrous Jr., Esq.
Bernard A. Nigro Jr., Esq.