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

Filing 426

DECLARATION of CYNTHIA E. RICHMAN in Support re: 425 Letter. Document filed by Apple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Boutrous, Theodore)

EXHIBIT F

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

January 3, 2014
VIA E-MAIL
Lawrence J. Buterman, Esq.
United States Department of Justice
450 5th Street NW, Suite 4000
Washington, D.C. 20530
Gabriel R. Gervey, Esq.
Office of the Texas Attorney General
P.O. Box 12548
Austin, TX 78711
Re:

United States v. Apple Inc. et al., 12-cv-2826 (DLC);
State of Texas, et al. v. Penguin Group (USA) Inc., et al., 12-cv-3394 (DLC)

Dear Larry and Gabriel:
Pursuant Section VI(H) of the Final Judgment, I write to lodge further objections
regarding Michael Bromwich, the external compliance monitor appointed by the District
Court.
Mr. Bromwich’s submission of a lengthy declaration testifying about disputed
evidentiary facts in support of the plaintiffs’ opposition to Apple’s motion for a stay is
grossly inappropriate behavior for someone appointed by the District Court purportedly to
serve as the Court’s agent in carrying out its judgment and judicial functions. By literally
becoming a witness testifying for the plaintiffs in a contested proceeding against Apple, Mr.
Bromwich has now made it clear that “his impartiality might reasonably be questioned,” 28
U.S.C. § 455(a), and that he “has a personal bias or prejudice concerning a party, [and]
personal knowledge of disputed evidentiary facts concerning the proceeding.” Id., § 455(b).
Accordingly, Mr. Bromwich must be disqualified from serving as the monitor in this matter.
See Fed. R. Civ. P. 53(a)(2) (requiring that a special master “must not have a relationship to
the parties, attorneys, action, or court that would require disqualification of a judge under 28
U.S.C. § 455, unless the parties, with the court’s approval, consent to the appointment after
the master discloses any potential grounds for disqualification.”); see also Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 878 (2009) (due process may require disqualification
where the circumstances offer the temptation “to the average ... judge to ... lead him not to
hold the balance nice, clear and true”) (internal quotation omitted).

January 3, 2014
Page 2

Moreover, Mr. Bromwich’s actions preceding the filing of this declaration likewise
have both demonstrated and fostered an appearance of bias and lack of partiality toward
Apple, including his ex parte communications with the Court, the Department of Justice and
the States before his appointment, his reliance on those ex parte communications as grounds
for expanding his mandate beyond the terms of the Final Judgment, his apparent coordination
with plaintiffs to broaden the scope of his mandate in this manner, his financial demands, and
his adversarial, inquisitorial and prosecutorial communications and activities toward Apple
since his appointment.
Finally, as we have already objected, Mr. Bromwich did not file with the Court
before his appointment the affidavit mandated by Rule 53(b)(3) “disclosing whether there is
any ground for disqualification under 28 U.S.C. § 455.” Fed. R. Civ. P. 53(a)(2).
Sincerely,
/s Theodore J. Boutrous Jr.

Theodore J. Boutrous Jr.