In a series of court filings which were filed late last week, Apple officially moved to halt the “unconstitutional” compliance monitoring imposed as part of the government’s e-book antitrust lawsuit. The Department of Justice defended the monitor’s actions and urged that the oversight be upheld.

As of right now, Michael Bromwich, the third party monitor assigned to the case by presiding Judge Denise Cote, “is conducting a roving investigation that is interfering with Apple’s business operations, risking he public disclosure of privileged and confidential information, and imposing substantial and rapidly escalating costs on Apple that it will never be able to recover,” Apple’s lead counsel Theodore Boutrous argued in the company’s motion. Apple on the other hand wants to immediately suspend the portion of the September judgment that authorizes Bromwich’s hiring pending the outcome of the company’s appeal of the case’s guilty verdict. The judgment’s other orders, such as the staggered renegotiation of Apple’s contracts with publishers, aren’t included and many have already been implemented by Apple.

The motion mirrors a complaint filed by Apple just after Thanksgiving in which the Cupertino California based company called into question Bromwich’s fee structure as well as the manner in which he had begun to conduct the monitoring. The earlier complaint was also the first Apple brought up the question of constitutionality on which the new motion hinges. Boutrous argues that Apple “has a substantial possibility of success” in overturning the monitoring provisions on appeal, in part because the court overstepped their constitutional authority with the imposition of the compliance monitor by granting him investigative powers that are not given to the court under Article III of the Constitution and thus can’t be transferred to the monitor.

For its part, the DOJ disagrees with Boutrous’s assessment of the situation and in response to Apple’s motion, comes to Bromwich’s defense. Federal antitrust lawyer, Lawrence Buterman accuses Apple of engaging "in a systematic and untoward campaign to publicly malign the External Compliance Monitor and prevent him from carrying out his responsibilities." Bromwich's conduct, Buterman writes, has been "at all times appropriate and consistent with his impeccable reputation."

Buterman also dismissed Apple’s constitutional claims outright, calling them a “misreading” of the original injunction that are “wholly without merit.” Because "Apple has not presented any legitimate arguments as to why its motion will be successful on the merits," he argues, "Plaintiffs submit Apple's application for a stay can be denied summarily."

Judge Cote will hear arguments on the motion on January 13, so we’ll have to wait until then.

Source: Fortune