Antitrust Law Daily Wrap Up, TOP STORY: Close the e-book on Apple Monitorship, Justice Department says, (Oct 13, 2015)

By Greg Hammond, J.D.

The Department of Justice Antitrust Division, Connecticut, New York, Texas, and Apple Inc. have recommended that the federal district court in New York City not extend the Monitorship of Apple’s compliance with a final judgment imposed on the company after it was found to have orchestrated a conspiracy among publishers to fix retail prices for electronic books or e-books (U.S. v. Apple Inc., Case No. 1:12-cv-02826-DLC-MHD).

“After reviewing the External Compliance Monitor’s [] assessment of Apple’s antitrust compliance policies, procedures, and training, and speaking with the Monitor and Apple, Plaintiffs do not apply to extend the Monitor’s term,” the Justice Department and state attorneys general offices stated in the letter to the district court. “Although the Monitor faced a challenging relationship with Apple, that did not prevent him from fulfilling the fundamental purpose of the Monitorship: ensuring that Apple implemented a significantly strengthened antitrust compliance program.”

The Monitor, in his Fourth Report, noted that Apple’s Antitrust Compliance Program is substantially stronger than it was when the Monitorship began, and stronger than when the First, Second, and Third Reports were issued. He observed that, despite Apple’s “lack of willing cooperation,” the company has created a set of procedures that the Monitor believes to be “reasonably designed to detect and prevent violations of the antitrust laws—at least on paper.” In addition, the Monitor observed that Apple has made “marked improvement in the engagement of Apple’s senior executives in the Antitrust Compliance Program,” and has—most notably—established the Antitrust Compliance Officer (ACO) position, created under Section V of the Final Judgment to supervise all of Apple’s antitrust compliance efforts.

“In arriving at our conclusion not to recommend an extension of the Monitor’s term, we ultimately give greater weight to the Monitor’s assessment that Apple has put in place a meaningful antitrust compliance program than to the difficult path it took to achieve this result,” the plaintiffs wrote. “We will continue to make use of our authority under Section VII of the Final Judgment to obtain information concerning Apple’s compliance with the ACO requirements, as well as other provisions of the Final Judgment, and will bring to the Court’s attention concerns we have about any lack of compliance by Apple.”

In its portion of the statement, Apple acknowledged that its relationship with the Monitor “has been rocky at times,” but stressed that “whatever the nature of the past skirmishes” between Apple and the Monitor, “these disagreements do not diminish the fact that Apple, in collaboration with the [Monitor], has met the Court’s challenge to create a world-class antitrust compliance program that will serve as a model for other companies.” The company further stressed that it “will continue to comply with all of its obligations under the Final Judgment, including those that pertain to the ACO, as it builds on the strong foundation of the Antitrust Compliance Program put in place over the past two years.”

Attorneys: Nathan P. Sutton, U.S. Department of Justice Antitrust Division. Eric Lipman, Office of the Attorney General of Texas. W. Joseph Nielsen, Office of the Attorney General of Connecticut. Robert L. Hubbard, New York Attorney General’s Office. Theodore J. Boutrous, Jr. (Gibson, Dunn & Crutcher, LLP) and Matthew J. Reilly (Simpson Thacher & Bartlett LLP) for Apple Inc.

Companies: Apple Inc.

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