"The Apple iPod iTunes Anti-Trust Litigation"

Filing 203

Proposed Order re 201 MOTION to Certify Class and Appoint Class Counsel by Stacie Somers. (Haeggquist, Alreen) (Filed on 2/25/2009)

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 203 1 2 3 4 5 6 7 8 9 10 11 12 THE APPLE IPOD ITUNES ANTI-TRUST 13 LITIGATION, ) ) ) 14 This Document Relates To: ) ) 15 Somers v. Apple, Inc., Case No. C 07-6507 JW, ) ) 16 ) ) 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C 07-6507 JW [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING ZELDES & HAEGGQUIST, LLP AND MEHRI & SKALET PLLC AS CO-LEAD CLASS COUNSEL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Dockets.Justia.com 1 This matter came before the undersigned Honorable James Ware of the above-entitled Court 2 upon plaintiff's motion for class certification. The Court having considered the motion and all other 3 papers filed concerning that motion, and all other pertinent documents and pleadings filed in this 4 action, 5 6 7 NOW, therefore, it is hereby ORDERED and ADJUDGED: 1. 2. Plaintiff's motion for class certification is hereby granted. The following class is hereby certified pursuant to Rule 23(b)(2) and (3) of the 8 Federal Rules of Civil Procedure: 9 10 11 3. 12 to Fed. R. Civ. P. 23(g), the Court appoints the following law firms as Co-Lead Class Counsel: 13 Zeldes & Haeggquist, LLP and Mehri & Skalet, PLLC. 14 4. 15 all of which are amply supported by plaintiff's well-pleaded allegations, Defendant's own 16 documents, and expert testimony: 17 (a) 18 joinder of all members is impracticable" within the meaning of Fed. R. Civ. P. 23(a)(1). 19 (b) 20 law or fact common to the class." Plaintiff has satisfied the commonality requirement here by 21 identifying, inter alia, the following common questions of law and fact: 22 (i) 23 (ii) 24 (iii) 25 markets in violation of Section 2 of the Sherman Act; 26 (iv) 27 monopolize the relevant markets in violation of Section 2 of the Sherman Act; 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW All persons and entities in the United States (excluding federal, state and local governmental entities, Apple, its directors, officers and members of their families) that from December 31, 2003 to the present ("Class Period") purchased an Apple iPod indirectly from Apple for their own use and not for resale. The Court also certifies plaintiff Stacie Somers as the Class Representative. Pursuant This Court bases this certification and appointment order on the following findings, Numerosity. Plaintiff has demonstrated that "the class is so numerous that Commonality. Fed. R. Civ. P 23(a)(2) requires that there be "questions of the definition of the relevant markets; Apple's market power within these markets; whether Apple monopolized and continues to monopolize the relevant whether Apple attempted to monopolize and continues to attempt to -1- 1 (v) whether Apple's technological tie-violates Section 1 of the Sherman 2 Act and California's Cartwright Act; 3 (vi) whether Defendant's conduct caused prices of iPods to be set at 4 supracompetitive levels; 5 (vii) whether Defendant's conduct injured plaintiff and other members of 6 the class and, if so, the appropriate class-wide measure of damages; and 7 8 violations of the law. 9 (c) Typicality. Pursuant to Fed. R. Civ. P. 23(a)(3), plaintiff must also show that (viii) the appropriateness of injunctive relief to restrain ongoing and future 10 "the claims or defenses of the representative parties are typical of the claims or defenses of the 11 class." The same common questions identified above also serve to satisfy plaintiff's burden on 12 typicality. The Court accordingly finds that typicality is met here because plaintiff and Class 13 Members seek the same remedies for similar harms under the same legal theories. 14 (d) Adequacy. Pursuant to Fed. R. Civ. P. 23(a)(4), the Court finds that the 15 "representative parties will fairly and adequately represent the [C]lass." The interests of the plaintiff 16 are fully aligned with those of the Class, and her chosen counsel are fully capable of effectively 17 prosecuting this litigation. 18 5. The Court further finds that certification is proper under Rule 23(b)(3). The common 19 questions identified above predominate over any individualized issues concerning the allocation of 20 damages. In other words, "[a] common nucleus of facts and potential legal remedies dominates this 21 litigation." Hanlon v. Chrylser Corp., 150 F.3d 1011, 1022 (9th Cir. 1998). Further, a class action is 22 superior to a series of potentially millions of individual suits. Even if it were feasible for individual 23 Class Members to bring suit, it would be inefficient to re-litigate the numerous common questions in 24 case after case. Moreover, the Court is unaware of any other litigation concerning the controversy at 25 issue herein, and the Court foresees no manageability problems that would militate against class 26 certification. 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW * * * -2- 1 2 ORDER Good Cause Appearing Therefore: Plaintiff's motion for class certification is granted, the 3 class as defined above is certified, plaintiff Stacie Somers is certified as the Class Representative and 4 the law firms of Zeldes & Haeggquist, LLP and Mehri & Skalet, PLLC are appointed Co-Lead Class 5 Counsel. 6 IT IS SO ORDERED. ____________________________________ THE HONORABLE JAMES WARE UNITED STATES DISTRICT JUDGE 7 DATED: _________________________ 8 9 Submitted by: 10 ZELDES & HAEGGQUIST, LLP 11 HELEN I. ZELDES ALREEN HAEGGQUIST 12 655 West Broadway, Suite 1410 San Diego, CA 92101 13 Telephone: 619/955-8218 Fax: 619/342-7878 14 helenz@zhlaw.com 15 alreenh@zhlaw.com 16 MEHRI & SKALET, PLLC STEVEN A. SKALET 17 CRAIG L. BRISKIN 1250 Connecticut Ave NW, Suite 300 18 Washington, DC 20036 Telephone: 202/822-5100 19 Fax: 202/822-4997 20 sskalet@findjustice.com cbriskin@findjustice.com 21 Attorneys for Plaintiff Stacie Somers 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW -3- 1 2 CERTIFICATE OF SERVICE I hereby certify that on February 23, 2009, 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 February 23, 2009. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW s/ Helen I. Zeldes HELEN I. ZELDES ZELDES & HAEGGQUIST, LLP HELEN I. ZELDES ALREEN HAEGGQUIST 655 West Broadway, Suite 1410 San Diego, CA 92101 Telephone: 619/955-8218 Fax: 619/342-7878 Email Addresses: helenz@zhlaw.com alreenh@zhlaw.com -4- 1 2 MAILING INFORMATION FOR CASE C 07-06507 3 Electronic Mail Notice List 4 The following are those who are currently on the list to receive e-mail notices for this case. 5 6 7 8 9 10 11 12 13 14 15 Manual Notice List 16 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). 17 Steven A. Skalet 18 Mehri & Skalet, PLLC 1250 Connecticut Avenue NW, Suite 300 19 Washington, DC 20036 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW Craig L. Briskin cbriskin@findjustice.com, Pleadings@findjustice.com Alreen Haeggquist alreenh@zhlaw.com Robert Allan Mittelstaedt ramittelstaedt@jonesday.com, ybennett@jonesday.com Tracy Strong tstrong@jonesday.com, dharmon@jonesday.com Elaine Wallace rchavez@jonesday.com, ewallace@jonesday.com, clok@jonesday.com Helen I. Zeldes helenz@zhlaw.com -5- 1 MAILING INFORMATION FOR A CASE 5:05-CV-00037-JW 2 Electronic Mail Notice List 3 The following are those who are currently on the list to receive e-mail notices for this case. 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 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW Francis Joseph Balint, Jr fbalint@bffb.com Michael David Braun service@braunlawgroup.com Andrew S. Friedman rcreech@bffb.com,afriedman@bffb.com Roy A. Katriel rak@katriellaw.com,rk618@aol.com Thomas J. Kennedy tkennedy@murrayfrank.com Caroline Nason Mitchell cnmitchell@jonesday.com,mlandsborough@jonesday.com, ewallace@jonesday.com Robert Allan Mittelstaedt ramittelstaedt@jonesday.com,ybennett@jonesday.com Brian P Murray bmurray@rabinlaw.com Jacqueline Sailer jsailer@murrayfrank.com Adam Richard Sand , Esq invalidaddress@invalidaddress.com John J. Stoia , Jr jstoia@csgrr.com Tracy Strong tstrong@jonesday.com,dharmon@jonesday.com Bonny E. Sweeney bonnys@csgrr.com,tturner@csgrr.com,E_file_sd@csgrr.com Helen I. Zeldes helenz@zhlaw.com -6- 1 Manual Notice List 2 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 3 list into your word processing program in order to create notices or labels for these recipients. 4 Todd David Carpenter Bonnett, Fairbourn, Friedman, & Balint 5 2901 N. Central Avenue Suite 1000 6 Phoenix, AZ 85012 7 Elaine A. Ryan Bonnett Fairbourn Friedman & Balint, P.C 8 2901 N. Central Avenue Suite 1000 9 Phoenix, AZ 85012 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND APPOINTING CO-LEAD CLASS COUNSEL - C 07-6507 JW -7-