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

Filing 413

ORDER. On September 5, 2013, a permanent injunction was entered in these two actions (Injunction). Among other things, the Injunction created the position of an External Compliance Monitor (Monitor) with the duties described in Section VI of the Injunction. The Injunction permitted Apple to object to any candidate for the Monitorship proposed by the Department of Justice and the Plaintiff States and required Apple to reimburse the candidates for reasonable expenses incurred by the candidates in connection with travel undertaken for interviews of the candidates by the United States and the Court. Through an Order of October 16, the Court advised the parties that it had interviewed the two candidates whose names had been submitted by the Department of Justice and the Plaintiff States, and had appointed Michael Bromwich as the Monitor, to be assisted by Bernard Nigro. Since the issuance of the Order of October 16, neither Apple, the Monitor, nor the Department of Justice and Plaintiff States have informed the Court about the work of the Monitor or of any problems associated with that work. There has been no ex parte communication between the Court and the Monitor or between the Court and any of the parties about these issues. In an Order of November 20, the parties were asked to submit any objection by November 27 to amendments to the Injunction described in the November 20 Order. In a submission of November 27 Apple objects to that provision in the November 20 Order that would allow the Monitor to provide the Court with ex parte oral briefings about the monitorship. Apple having objected, the Court will not receive ex parte briefings or reports from the Monitor about his work. Through its November 27 submission, Apple offers other objections as well. It objects to the Monitors performance of his duties to date and to his fee structure for this undertaking. These are matters of which neither the parties not the Monitor had previously advised the Court. In Section VI.H., the Injunction describes the process through which Apple shall make any objections to the actions by the Monitor. Objections are to be conveyed in writing to the United States and the Plaintiff States within ten calendar days after the action giving rise to the objection. Section VI.I. of the Injunction provides that the Monitor shall serve on such terms and conditions as the United States, after consultation with the Plaintiff States, approves. Any compensation shall be on reasonable and customary terms. Accordingly, it is hereby ORDERED that there shall be no ex parte communication by the Monitor with the Court regarding the performance of his duties as Monitor. IT IS FURTHER ORDERED that Apple shall follow the procedure created by Section VI.H. if it has any objections regarding the Monitor which it is unable to resolve through discussions with the Monitor. To the extent it has any objections about the Monitors fee structure, Apple shall use the procedure created by Section VI.H. to address that issue as well.IT IS FURTHER ORDERED that, in the event timely objection is made by Apple to the Department of Justice and the Plaintiff States, and the parties are unable to resolve the issue, any party may seek a conference with the Court through a letter no longer than two pages. The Court will promptly schedule a conference to give all parties, and if appropriate the Monitor, an opportunity to be heard on the matter. (Signed by Judge Denise L. Cote on 12/2/2013) (gr)