"The Apple iPod iTunes Anti-Trust Litigation"

Filing 191

Memorandum in Opposition re 190 MOTION for Leave to File Response to Plaintiffs' Reply Memorandum in Support of 165 MOTION Class Certification MOTION for Leave to File filed by Melanie Tucker. (Sweeney, Bonny) (Filed on 12/4/2008) Modified text on 12/5/2008 (cv, COURT STAFF).

"The Apple iPod iTunes Anti-Trust Litigation" Doc. 191 1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) 655 West Broadway, Suite 1900 3 San Diego, CA 92101 Telephone: 619/231-1058 4 619/231-7423 (fax) bonnys@csgrr.com 5 THE KATRIEL LAW FIRM 6 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 7 Washington, DC 20007 Telephone: 202/625-4342 8 202/330-5593 (fax) rak@katriellaw.com 9 Co-Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS) 15 LITIGATION ) ) CLASS ACTION 16 ) ) PLAINTIFFS' OPPOSITION TO This Document Relates To: 17 ) DEFENDANTS' MOTION UNDER CIVIL ) L.R. 7-3.(D) TO FILE RESPONSE TO ALL ACTIONS. 18 ) PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION 19 JUDGE: Hon. James Ware 20 DATE: December 15, 2008 TIME: 9:00 a.m. 21 CTRM: 8-4th Floor 22 23 24 25 26 27 28 Dockets.Justia.com 1 I. 2 INTRODUCTION In an attempt to have the last word less than two weeks before the scheduled hearing on 3 Plaintiffs' motion for class certification, Apple asks the Court permission to file additional briefing 4 by disingenuously framing certain of Plaintiffs' arguments as "new" and claiming Plaintiffs have 5 "misstated" Apple's position with respect to the Section 2 claims. Apple contends that its additional 6 briefing "will assist the Court in evaluating the parties' arguments and will permit a more efficient 7 presentation of the issues [at] the hearing." Apple's Mot. for Leave at 1. Quite to the contrary, 8 Apple's "response" presents redundant merits arguments which are of no use to the Court on a 9 motion for class certification and are entirely improper. 10 The filing of additional memoranda may be permitted in certain circumstances "where a valid 11 reason for such additional briefing exists." Hill v. England, No. CVF05869RECTAG 2005 WL 12 3031136, at *1 (E.D. Cal. Nov. 8, 2005); see also Civil L.R. 7-3.(d) ("[O]nce a reply is filed, no 13 additional memoranda, papers or letters may be filed without prior Court approval."). But where, as 14 here, the moving party merely reiterates arguments made in their opening brief, additional briefing 15 by the opposing party is not permitted. See id.; see also Edwards v. Toys "R" Us, 527 F. Supp. 2d 16 1197, 1205 n.31 (C.D. Cal. 2007). The arguments made by Plaintiffs in their reply brief are certainly 17 not "new" but instead appropriately respond to arguments raised by Apple in its opposing brief and 18 reinforce the arguments Plaintiffs made in their opening brief. 19 20 II. 21 22 Accordingly, this Court should deny Apple's motion to file additional briefing. PLAINTIFFS DO NOT PRESENT ANY "NEW" ARGUMENTS IN THEIR REPLY BRIEF THAT WOULD NECESSITATE ADDITIONAL BRIEFING BY APPLE In its "response" memorandum, Apple once again improperly attempts to place the merits 23 issue of "burning and ripping" before the Court at the class certification stage. In its opposing brief, 24 Apple repeatedly contends that "burning and ripping" presents a viable alternative to consumers who 25 wish to purchase a competing player. See Apple's Opp. at 1, 2, 6, 8-11, 17. In response, Plaintiffs 26 assert that issues concerning burning and ripping, including its legality and whether it is a viable 27 alternative, are merits issues common to the class that do not defeat class certification. Pltf's Reply 28 PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION UNDER CIVIL L.R. 7-3.(D) TO FILE RESPONSE TO PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION - C-05-00037-JW(RS) -1- 1 at 7. Indeed, Apple's "response," arguing the merits of burning and ripping, demonstrates that this is 2 in fact a merits issue common to the class. Additional briefing on this issue is thus entirely improper 3 and unnecessary. 4 Apple also contends that Plaintiffs allege a "new argument, [citing] N. Pac. Ry. Co. v. U.S., 5 356 U.S. 1, 5-6 (1958), for the proposition that a tie can consist of a requirement that the customer 6 not purchase the tied product from any other supplier." Apple's Response at 2. This is incorrect and 7 a complete waste of the Court's time. In their reply, Plaintiffs cited Northern Pacific Railway to 8 support their argument that Apple's unremitting policy ≠ permitting only iPod owners to directly 9 play iTunes audio and video downloads ≠ precludes customers from purchasing portable digital 10 media players other than an iPod. Pltf's Reply at 5-6. Plaintiffs made this argument in their opening 11 brief. Citing Northern Pacific Railway, Plaintiffs stated, "[t]here is no question here that under 12 Apple's `unremitting policy' of applying FairPlay to the online recordings, buyers may not exercise 13 free choice in choosing a portable digital media player . . . ." Pltf's Open. at 16. Thus, Apple's 14 attempt to reframe Plaintiffs' arguments in an effort to provide further briefing to the Court is not 15 well-taken and should not be countenanced by the Court. 16 But, Apple takes it one step further. Failing to provide any justification, including even an 17 effort to reframe Plaintiffs' arguments as "new," Apple simply makes its own additional arguments 18 regarding coercion by rearguing the facts and holding of a particular case. Apple's Response at 2-3. 19 In fact, Apple already raised these arguments in its opposing brief. See Apple's Opp. at 16. 20 Accordingly, consideration of Apple's further argument regarding coercion should be denied 21 entirely. 22 III. 23 Nor do Plaintiffs "misstate" Apple's position with respect to certification of Plaintiffs' 24 Section 2 claims. Plaintiffs merely contend that Apple's summary arguments do not amount to a 25 valid opposition to class certification of these claims. Indeed, Plaintiffs stated, "[b]ecause all the 26 elements of Plaintiffs' monopolization claims are subject to common proof, and because Apple has 27 not offered any substantive argument in opposition to the motion to certify these freestanding 28 PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION UNDER CIVIL L.R. 7-3.(D) TO FILE RESPONSE TO PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION - NO ADDITIONAL EXPLANATION OF APPLE'S OPPOSITION TO PLAINTIFFS' SECTION 2 CLAIMS IS NEEDED C-05-00037-JW(RS) -2- 1 counts, Plaintiffs' motion for class certification should also be granted with respect to their Section 2 2 monopoly claims." Pltf's Reply at 12 (emphasis added). Plaintiffs are free to make arguments in 3 their reply based on their interpretation of Apple's briefing without opening the door to sur-replies. 4 And, certainly the Court is fully capable of reading the parties briefs and understanding the 5 arguments without officious "assistance" from Apple. 6 IV. 7 CONCLUSION For the foregoing reasons, the Court should deny Defendants' Motion Under Civil L.R. 7- 8 3.(d) to File Response to Plaintiffs' Reply Memorandum in Support of Class Certification. 9 DATED: December 4, 2008 10 11 12 13 14 15 16 17 18 19 20 Co-Lead Counsel for Plaintiffs 21 22 23 24 25 26 27 28 C-05-00037-JW(RS) Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY 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) 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 PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION UNDER CIVIL L.R. 7-3.(D) TO FILE RESPONSE TO PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION - -3- 1 2 3 4 5 6 7 8 9 10 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 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\CasesSD\Apple Tying\BRF00056073.doc PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION UNDER CIVIL L.R. 7-3.(D) TO FILE RESPONSE TO PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION - C-05-00037-JW(RS) -4- 1 2 CERTIFICATE OF SERVICE I hereby certify that on December 4, 2008, 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 December 4, 2008. 9 10 11 12 13 14 E-mail:Bonnys@csgrr.com 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) s/ BONNY E. SWEENEY BONNY E. SWEENEY CAND-ECF Page 1 of 2 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. Joseph Balint , Jr fbalint@bffb.com Francis David Braun service@braunlawgroup.com Michael S. Friedman rcreech@bffb.com,afriedman@bffb.com Andrew Haeggquist alreenh@zhlaw.com Alreen A. Katriel rak@katriellaw.com,rk618@aol.com Roy J. Kennedy tkennedy@murrayfrank.com Thomas Nason Mitchell cnmitchell@jonesday.com,mlandsborough@jonesday.com,ewallace@jonesday.com Caroline Allan Mittelstaedt ramittelstaedt@jonesday.com,ybennett@jonesday.com Robert P Murray bmurray@murrayfrank.com Brian Sailer jsailer@murrayfrank.com Jacqueline Richard Sand , Esq invalidaddress@invalidaddress.com Adam Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com Craig J. Stoia , Jr jstoia@csgrr.com John Strong tstrong@jonesday.com,dharmon@jonesday.com Tracy https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?716383614033212-L_497_0-1 12/4/2008 CAND-ECF Page 2 of 2 E. Sweeney bonnys@csgrr.com,E_file_sd@csgrr.com,christinas@csgrr.com Bonny I. Zeldes helenz@zhlaw.com Helen 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 your word processing program in order to create notices or labels for these recipients. 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 https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?716383614033212-L_497_0-1 12/4/2008