Goodwin Procter partner hits back in Apple antitrust row, reveals company's fees policy

A Goodwin Procter partner appointed to conduct a review of Apple’s competition policies has hit back at the company after the tech giant argued he had gone beyond the remit of his appointment and charged exorbitant fees.

In a declaration filed this week, Goodwin white collar partner Michael Bromwich reveals a series of email exchanges which he argues shows obstructive behaviour by the company.

Bromwich was appointed by a New York court in October to monitor the company’s competition practices, following a ruling in July that Apple conspired with five publishers to fix e-book prices.

Independent monitors are regularly appointed by the US courts as part of settlement agreements.

He is conducting the review through his external consultancy, The Bromwich Group, alongside Fried Frank antitrust head Bernard Nigro.

Bromwich said he had “never been accused of exceeding the scope of [his] monitoring authority” when dealing with similar matters, prior to being appointed to the Apple case.

He also complained that Apple had “rejected or even deferred” requests for meetings with senior management, which the company said were “unreasonable, unnecessary and unwarranted”.

Bromwich quotes one senior Apple lawyer as saying Apple executives would “never get over the case”, and were still extremely angry.

On the issue of fees, Bromwich states that Gibson Dunn partners Theodore Boutrous and Daniel Swanson – who are advising Apple on the matter – “were familiar with my rates and were likely more in agreement with me regarding [their appropriateness] than Apple”.

In a stinging critique in December, Apple said Bromwich’s “personal financial interest is for as broad and lengthy an investigation as possible”, and that he had refused to propose any sort of budget.

Court documents show Bromwich billed Apple almost $140,000 (£85,000) in the first two weeks of his instruction.

Bromwich, a Washington DC-based litigation partner and member of Goodwin Procter’s white collar defence group, was instructed by the court to monitor Apple’s competition policies, procedures and training at the company’s own cost.

Last month, court filings by Apple’s lawyers accused Bromwich of “operating in an unfettered and inappropriate manner”, “[lacking] any antitrust experience” and extending the scope of the investigation beyond the original mandate”.

In an objection to a proposed court amendment that would grant Bromwich greater monitoring powers, Apple slammed Bromwich’s requests for interviews with senior management and board members.

Also detailed in exhibits filed by Bromwich is the amount Apple says it pays out to law firm partners, with the average sitting at $565 (£343) per hour.
In an email to Bromwich, Apple in-house antitrust lawyer Kyle Andeer called the $1,100 hourly rate proposed by the monitor “very high”.

In the email, included in the exhibits filed by Bromwich, Andeer added: “Even if one looks at the top 25%, the average rate per partner is $801 per hour. Apple is prepared to compensate you at $800 per hour and Mr. Nigro at a rate of $700 per hour.”

According to another exhibit, Apple’s “Outside Service Provider Policy” requires all legal advisers to charge fees “at the lesser of (i) our agreed discounted rates; or (ii) the lowest price offered to any other client for similar services”.