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U.S. urges court to let Apple antitrust monitor get back to work

Fencing used for construction of the Central Subway obscures Apple's flagship retail store in San Francisco, California May 15, 2013. REUTER
Fencing used for construction of the Central Subway obscures Apple's flagship retail store in San Francisco, California May 15, 2013. REUTER

By Jonathan Stempel

NEW YORK (Reuters) - The U.S. government on Friday urged a federal appeals court to reject Apple Inc's effort to oust a court-appointed monitor for its antitrust compliance, saying the company "cannot be trusted" to do the job on its own.

Apple has been seeking the removal of Michael Bromwich, who was appointed in October by U.S. District Judge Denise Cote in Manhattan, three months after she found Apple liable for conspiring with five publishers to raise e-book prices.

On Tuesday, the 2nd U.S. Circuit Court of Appeals in New York temporarily halted Bromwich's work so a three-judge panel could review Apple's request to halt his work, potentially for several months, while it fully appeals whether there should be a monitor at all.

But in a Friday filing with the 2nd Circuit, the U.S. Department of Justice said Apple did not make the required "strong showing" that Cote abused her discretion in requiring a monitor for two years, or show it suffered irreparable harm.

Apple has complained that Bromwich had been conducting a "quasi-inquisitorial, quasi-prosecutorial" investigation that could, if unchecked, impede its ability to develop new products.

It has also objected to Bromwich's $1,100 per hour fee, which Cupertino, California-based Apple must pay.

"Apple's complaints ... demonstrate only that the monitor is trying to do his job," the Justice Department said. "Even if Apple could establish that the monitor had exceeded his authority, the proper relief at most would be disqualification of this particular monitor."

The government added that Apple "cannot be trusted, on its own," to develop effective antitrust compliance and training programs, and that taxpayers should "never again have to pay for the government to investigate Apple for antitrust violations."

Spokespeople for Apple did not immediately respond to requests for comment.

Bromwich has denied having overreached in monitoring Apple and said the company had been impeding his work.

The 2nd Circuit panel is expected to hear oral arguments on Apple's request for a longer stay on February 4.

The case is U.S. v. Apple Inc, 2nd U.S. Circuit Court of Appeals, No. 14-60.

(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler)

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