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Judge selects BP oil spill attorney to 'monitor' Apple's eBook practices

A New York judge this week appointed attorney Michael R. Bromwich to serve as the external monitor who will make sure Apple is not engaging in anti-competitive behaviour when it comes to e-books.

Judge Denise Cote considered two candidates for the position, and concluded that "either one is capable of doing an exceptional job as monitor." Ultimately, however, she chose Bromwich, and called on Bernard A. Nigro to assist him.

"The court is grateful to both candidates for their commitment to public service and for taking time to travel and interview with DOJ and the court," Judge Cote wrote in her decision.

Apple argued forcefully that it did not need a monitor, telling the court that such an appointee would be costly and burdensome, and could be handled just as well by the two new litigators hired by the Cupertino-based firm.

In an August filing, however, the Department of Justice pushed back, telling the court that "it is simply unreasonable to assume that an internal compliance lawyer, entrenched in that culture and beholden to those executives for his or her position and remuneration, will alone be able to effectuate the necessary changes."

Furthermore, "while Apple argues that an external monitor would be 'extremely costly and burdensome,' [the DOJ] respectfully submit that failing to appoint a monitor will prove extremely costly to consumers and the marketplace," the DOJ said.

The case dates back to April 2012, when the DOJ sued Apple and five publishers - Macmillan, Penguin, Hachette, HarperCollins, and Simon & Schuster - over an alleged "illegal conspiracy" involving e-book price fixing. The publishers settled with the government, but Apple fought back and the case went to court in June. A New York district judge later found that the firm was guilty of e-book price fixing.

Apple has denied any wrongdoing, and formally appealed the decision earlier this month.

The Cupertino-based company's new monitor, meanwhile, is a litigation partner in Goodwin Procter's Washington, D.C. and New York offices. He is also the founder and managing principal of The Bromwich Group, a crisis management and advisory firm that launched in April 2012. Bromwich "specializes in internal investigations, compliance and monitoring, and has led major internal investigations for companies, audit committees, special committees and special litigation committees," according to his Goodwin bio.

In 2010, in the wake of the disastrous BP oil spill in the Gulf of Mexico, Bromwich was asked by President Obama and Interior Secretary Ken Salazar to serve as director of the Bureau of Ocean Energy Management, Regulation and Enforcement, a position he held for 17 months.

Bernard Nigro Jr. is chair of the antitrust department at the firm of Fried Frank.

Image: Flickr (srqpix)