"The Apple iPod iTunes Anti-Trust Litigation"
Memorandum in Opposition to Administrative Motion to Consider Whether C05-37 JW and C07-5152 RS Cases Should Be Related filed by Plaintiffs. (Attachments: # 1 Proposed Order Civil Local Rule 3-12)(Sweeney, Bonny) (Filed on 10/16/2007) Modified text on 10/17/2007 (cv, COURT STAFF).
"The Apple iPod iTunes Anti-Trust Litigation"
Page 1 of 9
1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) GREGORY S. WESTON (239944) 3 655 West Broadway, Suite 1900 San Diego, CA 92101 4 Telephone: 619/231-1058 619/231-7423 (fax) 5 email@example.com firstname.lastname@example.org 6 THE KATRIEL LAW FIRM 7 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 8 Washington, DC 20007 Telephone: 202/625-4342 9 202/330-5593 (fax) email@example.com 10 Co-Lead Counsel for Plaintiffs 11 [Additional counsel appear on signature page.] 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW 16 LITIGATION ) ) CLASS ACTION 17 ) ) PLAINTIFFS' OPPOSITION TO This Document Relates To: 18 ) ADMINISTRATIVE MOTION TO ) CONSIDER WHETHER CASES SHOULD ALL ACTIONS. 19 ) BE RELATED 20 21 22 23 24 25 26 27 28
Page 2 of 9
Pursuant to Local Rules 3-12(e) and 7-11(b), Plaintiffs Melanie Tucker, Somtai Troy
2 Charoensak and Mariana Rosen ("the iPod Plaintiffs") respectfully submit this opposition to the 3 Motion to Consider Whether Cases Should Be Related ("the Holman motion"), filed on October 12, 4 2007 by the named plaintiffs in the action captioned Holman v. Apple, Inc., No. C 07-CV-05152-RS 5 ("Holman").1 6 This Court should deny the request to relate the Holman action to the present action, The
7 Apple iPod iTunes Anti-Trust Litigation, No. C 05-00037 JW ("iPod"). The Local Rules for the 8 Northern District of California provide that cases should only be related when: 9 10 11 (1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges.
12 Civ. L.R. 3-12 (a)(1)-(2). 13 Neither of these requirements is met. The parties are different, and the events and
14 transactions giving rise to the suits are not substantially the same. Indeed, the only commonality is 15 that Holman names Apple as a defendant and relies in part on antitrust laws. The iPod Plaintiffs 16 brought their action on behalf of a class of iPod purchasers against Apple only, while Holman seeks 17 to represent iPhone purchasers against Apple, AT&T and 50 Doe defendants. The parties are thus 18 not substantially the same. Further, the iPod Plaintiffs allege that Apple unlawfully obtained and 19 maintains a monopoly in the markets for digital music players and online music and video, and tied 20 the sale of iPods to its sales of online music and video. Holman, in contrast, alleges that Apple tied 21 the sale of AT&T's wireless voice and data services to its sale of the iPhone. Given the differing 22 factual bases of the cases, no labor would be duplicated or conflicting results would be possible if 23 the cases were conducted before different judges. The Holman motion should be denied. 24
1 The Holman motion was incorrectly filed in Tucker v. Apple Computer Inc., No. 06-04457, 25 contrary to this Court's March 21, 2007 Order Consolidating Related Cases; Appointing Co-Lead Counsel which designated the earlier-filed action the lead case, and also contrary to Local Rule 326 12(b), which states that related case motions must be filed in the docket of the "earliest-filed case." The Holman Plaintiffs also failed to follow Local Rule 7-11(a) by not filing a proposed order and by 27 not filing either a stipulation or declaration explaining why a stipulation could not be obtained.
Page 3 of 9
1 I. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
THE HOLMAN ACTION INVOLVES DIFFERENT DEFENDANTS AND IS BROUGHT ON BEHALF OF A DIFFERENT CLASS The Holman and iPod actions do not involve the same parties. The Holman action names as
defendants Apple, Inc ("Apple"), AT&T Mobility LLC, and "Does 1-50, inclusive" while the iPod action names Apple as its single defendant. See Class Action Complaint for Damages, Injunctive Relief and Restitution, filed on October 5, 2007 ("Holman complaint"),¶¶4,5. Nor do the Holman and iPod actions involve the same or even "substantially the same" proposed plaintiff classes. Holman was filed on behalf of a class consisting of those who "bought and implemented" Apple's iPhone cellular telephone, from "June 29, 2007 to the date of judgment in this action" and "sustained damages as a result." Holman complaint, ¶63. The iPod Plaintiffs, however, seek to represent a damages class consisting of all persons who purchased an iPod directly from Apple starting on April 28, 2003, and an injunctive relief class consisting of anyone who purchased an iPod or purchased audio or video files from Apple. See Consolidated Complaint for Violations of Sherman Antitrust Act, Clayton Act, Cartwright Act, California Unfair Competition Law, Consumer Legal Remedies Act and California Common law of Monopolization, filed April 19, 2007 ("iPod complaint"), ¶¶26, 31-32. II. THE HOLMAN AND IPOD ACTIONS INVOLVE DIFFERENT QUESTIONS OF LAW AND FACT The iPod Plaintiffs allege that Apple unlawfully tied iPods to digital media downloads. The
19 iPod action does not, in contrast to Holman, include any claims of conspiracy. See, Holman 20 complaint, ¶¶20,34,38-44. The iPod claims were upheld twice by this Court in two orders denying 21 Apple's motions to dismiss.2 22 By contrast, Holman centers around claims that Apple conspired with AT&T to force iPhone
23 purchases to only utilize their iPhones on AT&T's cellular telephone network by use of 24 technological locks, and that Apple and AT&T retaliated against consumers who broke these locks. 25 See Holman complaint ¶¶35, 44-57. Thus, given the different factual predicates of even the antitrust 26
2 See Slattery v. Apple Computer, No. C05-0037, 2005 WL 2204981 27 2005); Tucker v. Apple Computer, Inc., Inc., F. Supp. 2d 1090 (N.D. Cal. 2007).(N.D. Cal. Sept. 9, 493 28
Page 4 of 9
1 claims in the Holman and iPod actions, no risk of inconsistent adjudication is possible, as Local Rule 2 3.12 requires before cases can be related. 3 Further, the Holman action seeks damages using novel common law tort theories. The fifth
4 claim for relief in Holman is for "Computer Trespass/Trespass to Chattels" and seeks "direct and 5 consequential damages" of "no less than $200 million" and "punitive damages in an amount of no 6 less than $600 million." Holman complaint, ¶101, Prayer ¶¶2,3,5. In its sixth claim for relief 7 Holman seeks an accounting of all improper earnings. Id, ¶¶103-105. No such claims for similar 8 relief are sought by the iPod Plaintiffs. Indeed, Holman's counsel admitted in a press release that its 9 `"computer trespass"' punitive damage claim is a "relatively new theory."3 10 III. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
3 See "Apple and AT&T Sued for $1.2 Billion 27 2007, available at http://www.appleclassaction.net. Over iPhone" Press Release dated October 10, 28
RELATING THE IPOD AND HOLMAN ACTIONS WOULD UNFAIRLY DELAY AND COMPLICATE THE IPOD ACTION If the Holman action is related to any other pending case, it is not the iPod action, but Li v.
Apple Inc., No. C 07 04005 LDW ETB, filed on September 24, 2007 in the Eastern District of New York and asserting similar antitrust claims against Apple and AT&T on behalf of another iPhone purchaser. Given that there are now iPhone antitrust cases pending against AT&T, Inc. and Apple in more than one judicial district, these cases will likely be subject to motions for transfer and consolidation before the Judicial Panel on Multidistrict Litigation. If the iPod action is related to the Holman action litigation, the iPod Plaintiffs justifiably fear they will be forced to file opposition motions and then travel to argue before Judicial Panel on Multidistrict Litigation against motions to transfer and consolidate the iPod action before the Panel's hearing on the iPhone Multidistrict Litigation. Far from preventing a duplication of labor and expense, relating the iPod and Holman actions would very likely needlessly impose additional labor burdens and expenses on the iPod Plaintiffs, and might even disrupt the iPod litigation by causing it to be stayed and/or transferred to another judicial district.
Page 5 of 9
1 IV. 2
CONCLUSION For the foregoing reasons, the iPod Plaintiffs respectfully request the Court decline to order
3 that the Holman and iPod actions be related. 4 DATED: October 15, 2007 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY GREGORY S. WESTON
s/BONNY E. SWEENEY BONNY E. SWEENEY 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) THE KATRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: 202/625-4342 202/330-5593 (fax) Co-Lead Counsel for Plaintiffs BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. ELAINE A. RYAN TODD D. CARPENTER 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 Telephone: 602/274-1100 602/274-1199 (fax) BRAUN LAW GROUP, P.C. MICHAEL D. BRAUN 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Telephone: 310/442-7755 310/442-7756 (fax) MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 New York, NY 10016
Page 6 of 9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Telephone: 212/682-1818 212/682-1892 (fax) GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Telephone: 310/201-9150 310/201-9160 (fax) Additional Counsel for Plaintiffs
Page 7 of 9
CERTIFICATE OF SERVICE I hereby certify that on October 16, 2007, I electronically filed the foregoing with the Clerk
3 of the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the
8 foregoing is true and correct. Executed on October 16, 2007. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFFS' OPPOSITION TO ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED - C-05-00037-JW
s/BONNY E. SWEENEY BONNY E. SWEENEY COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) E-mail:firstname.lastname@example.org
CAND-ECF Case 5:05-cv-00037-JW
Page 1 of 2 Page 8 of 9
Mailing Information for a Case 5:05-cv-00037-JW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. David Braun email@example.com
S. Friedman firstname.lastname@example.org,email@example.com
A. Katriel firstname.lastname@example.org,email@example.com
J. Kennedy firstname.lastname@example.org
Nason Mitchell email@example.com,firstname.lastname@example.org
Allan Mittelstaedt email@example.com,firstname.lastname@example.org
P Murray email@example.com
Richard Sand , Esq firstname.lastname@example.org
J. Stoia , Jr email@example.com
E. Sweeney firstname.lastname@example.org,email@example.com,E_file_sd@csgrr.com
Steven Weston firstname.lastname@example.org
Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into
CAND-ECF Case 5:05-cv-00037-JW
Page 2 of 2 Page 9 of 9
your word processing program in order to create notices or labels for these recipients.
Francis Joseph Balint Bonnett Fairbourn Friedman & Balint, P.C 2901 North Central Avenue Suite 1000 Phoenix, AZ 85012-3311 Todd David Carpenter Bonnett, Fairbourn, Friedman, & Balint 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 Elaine A. Ryan Bonnett Fairbourn Friedman & Balint, P.C 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 , Jr