Updated Feb. 4, 2014 3:48 p.m. ET
Apple Inc. AAPL +1.45% Apple Inc. U.S.: Nasdaq $508.79 +7.26 +1.45% Feb. 4, 2014 4:00 pm Volume (Delayed 15m) : 13.34M AFTER HOURS $506.09 -2.70 -0.53% Feb. 4, 2014 4:35 pm Volume (Delayed 15m): 200,536 P/E Ratio 12.54 Market Cap $447.36 Billion Dividend Yield 2.40% Rev. per Employee $2,163,820 02/04/14 Apple Gains No Sympathy in Fig... 02/04/14 Second Circuit Takes a Bite ou... 02/03/14 Apple's Bandwidth Boom Could S... More quote details and news » 's efforts to restrain a court-appointed monitor—whom the company calls expensive and intrusive—have met with little sympathy in appellate court.
The technology company has fought hard to shake off Michael Bromwich since a federal judge appointed him last year to keep tabs on Apple's efforts to set up new policies to prevent antitrust violations. The appointment of Mr. Bromwich, who charges more than $1,000 an hour, came after a ruling that Apple colluded with five major U.S. publishers to drive up the prices of e-books.
In Tuesday's hearing in the U.S. Court of Appeals for the Second Circuit, Apple asked the court to keep Mr. Bromwich, a former Justice Department inspector general, at bay while the company pursues its appeal of the e-books ruling. Mr. Bromwich's methods are time-consuming, expensive and seemingly without bounds, Apple lawyer Theodore Boutrous Jr. said. If the monitor's activities were later to be found improper by the federal appeals court, Apple would have to spend time and money that it can't get back, he said.
"The court can't give us relief," Mr. Boutrous said. "It can't turn back the clock."
Apple has complained that Mr. Bromwich has asked to interview the company's executives and board of directors.
Judge Gerard Lynch was unmoved. If Apple's executives had "spent some of their very valuable time keeping the company from violating antitrust laws, perhaps they wouldn't be in this position," he said.
U.S. District Judge Denise Cote, who made the lower-court ruling in the e-books case, required Apple to pay for a monitor and grant him access to people and documents. Mr. Bromwich wrote in a court filing in December that the company has stonewalled him, offering "far less access" than he received in his previous three stints as a corporate monitor.
Last month, Judge Cote rejected Apple's request to push pause on her order while the e-books case works its way through the appeals court, setting the stage for Tuesday's hearing.
To get the Second Circuit to freeze Judge Cote's order pending the appeal, Apple has to show that it would suffer irreparable harm if Mr. Bromwich is allowed to continue in his role. As more than one of the three judges pointed out, losing money isn't an irreparable harm—particularly at one of the richest companies in the world.
The judges did indicate they felt Judge Cote's order placed too few limits on Mr. Bromwich's ability to request documents and interviews.
Judge Lynch suggested the court could craft an order specifying that Mr. Bromwich can make such requests only in connection with his duty to ensure that Apple has strong antitrust policies and that they take root companywide.
Even if the court crafted such an order, Apple would still oppose Mr. Bromwich's appointment as an unwarranted intrusion, Mr. Boutrous said. He pointed out that the Justice Department could monitor the company itself without enlisting a private party who has a financial incentive to enlarge his role.
"The government has other things to do," Judge Guido Calabresi said.
The judges pressed the Justice Department's lawyer, Finnuala K. Tessier, to explain why Mr. Bromwich had to commence his work immediately.
"An ounce of prevention is worth a pound of cure," she said, adding that Apple can complain to Judge Cote if it feels Mr. Bromwich has overstepped his bounds.
"Just make sure the monitor understands the restrictions," said Judge Pierre Leval.
The appeals court next will rule on whether to halt Judge Cote's order, pending Apple's appeal. Then the court will hear the appeal of the e-book collusion case on the merits.
Mr. Boutrous said that Apple would show on appeal that it violated no antitrust laws, and that a monitor wasn't necessary.
Write to Joe Palazzolo at joe.palazzolo@wsj.com
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