"The Apple iPod iTunes Anti-Trust Litigation"

Filing 238

Memorandum in Response to 228 Court's July 17, 2009 Order as to Injunctive Relief Sought filed by Melanie Tucker. (Related document(s) 228 ) (Merrick, Thomas) (Filed on 8/31/2009) Modified on 8/31/2009 (cv, COURT STAFF).

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 238 Case5:05-cv-00037-JW Document238 Filed08/31/09 Page1 of 14 1 2 3 4 5 6 7 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) THOMAS R. MERRICK (177987) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) johns@csgrr.com bonnys@csgrr.com tmerrick@csgrr.com 8 THE KATRIEL LAW FIRM ROY A. KATRIEL (pro hac vice) 9 1101 30th Street, N.W., Suite 500 Washington, DC 20007 10 Telephone: 202/625-4342 202/330-5593 (fax) 11 rak@katriellaw.com 12 Co-Lead Counsel for Plaintiffs 13 [Additional counsel appear on signature page.] 14 15 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) Lead Case No. C-05-00037-JW(RS) CLASS ACTION DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT Judge: Date: Time: Ctrm: Hon. James Ware October 5, 2009 9:00 a.m. 8 4th Floor 17 THE APPLE IPOD ITUNES ANTI-TRUST LITIGATION 18 19 This Document Relates To: 20 21 22 23 24 25 26 27 28 ALL ACTIONS. Dockets.Justia.com Case5:05-cv-00037-JW Document238 Filed08/31/09 Page2 of 14 1 I. 2 INTRODUCTION Plaintiffs Somtai Troy Charoensak, Mariana Rosen, and Melanie Tucker (collectively, 3 "Direct Purchaser Plaintiffs") file this memorandum in response to the Court's July 17, 2009 Order 4 ("Order"), which sought clarification from the parties whether, given the operative theories of 5 liability and the injunctive relief class, as defined, the injunctive relief sought is an available remedy. 6 Specifically, the Court invited briefing on the following issues: (a) whether Apple's representation 7 that it has stopped its practice of placing Digital Rights Management ("DRM") restrictions on iTMS 8 purchases affects the injunctive relief sought; (b) whether iPod purchasers are entitled to the 9 identified injunctive relief even though it relates to prior iTMS purchases and not to iPods; and (c) 10 how the injunctive relief sought is available under theories of monopolization or attempted 11 monopolization. Order at 2-3. 12 For the reasons detailed below, Direct Purchaser Plaintiffs' request for injunctive relief 13 remains necessary to redress Apple's anticompetitive conduct. 14 II. 15 16 APPLE'S VOLUNTARY REMOVAL OF DRM FROM iTMS MUSIC FILES DOES NOT DEFEAT DIRECT PURCHASER PLAINTIFFS' CLAIM FOR INJUNCTIVE RELIEF Apple represents that it "has stopped its practice of placing Digital Rights Management 17 ("DRM") restrictions on its iTMS purchases." Order at 2. However, DRM restrictions still exist on 18 video files purchased from iTMS. In addition, earlier iTMS music purchases remain "locked" unless 19 the customer pays Apple a fee to remove DRM for each prior purchase. Injunctive relief is therefore 20 still necessary and appropriate. 21 When this case was originally filed, Apple encrypted all files sold through iTMS with its 22 proprietary DRM, restricting iTMS purchasers' choice of compatible portable media players. As 23 pressure mounted for Apple to remove DRM from files sold on iTMS (through this class action and 24 a large volume of customer complaints),1 Apple slowly changed its policy. On April 2, 2007, Apple 25 26 See Declaration of Thomas R. Merrick in Support of Direct Purchaser Plaintiffs' Memorandum in Response to Court's July 17, 2009 Order as to Injunctive Relief Sought, filed 27 concurrently ("Merrick Decl."). 28 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) 1 -1- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page3 of 14 1 began offering a limited number of "DRM-free" music files. See Press Release, Apple, Apple 2 Unveils Higher Quality DRM-Free Music on the iTunes Store (Apr. 2, 2007) (available at 3 http://www.apple.com/pr/library/2007/04/02itunes.html). These files included only those on the 4 EMI Music label. When Apple began selling these files, it gave no indication how long the new 5 program would last, or whether it would expand or change it. Moreover, Apple did not make the 6 "DRM-free" files equally available to DRM-encrypted files. Instead, Apple exacted a premium from 7 its customers, charging $1.29 for "DRM-free" music files, instead of the 99 cent price for the same 8 music files that contained DRM restrictions. Id. Additionally, purchasers with existing DRM9 protected EMI music files were required to pay an additional 30 cents to unlock these files.2 10 Almost two years later, on January 6, 2009, Apple announced that all music sold through 11 iTMS would be in DRM-free format. See Press Release, Apple, Changes Coming to the iTunes 12 Store (Jan. 6, 2009) (available at http://www.apple.com/pr/library/2009/01/06itunes.html). This 13 meant that any music files purchased from iTMS going forward could be played on non-iPod 14 portable digital media players.3 However, all previously purchased songs remain encrypted with 15 Apple's DRM and can only be played directly on an iPod. To unlock these previously purchased 16 files, Apple charges an additional fee of 30 cents per song or 30% of the album price. Id. Thus, 17 even though purchasers with existing libraries already paid Apple a fee to own the music, they are 18 charged again to use this music on a device manufactured by one of Apple's competitors. 19 There is no guarantee that Apple will not reverse its current DRM policy. Apple's terms of 20 service explicitly provides that "Apple reserves the right, at any time and from time to time, to 21 update, revise, supplement, and otherwise modify this Agreement and to impose new or additional 22 rules, policies, terms, or conditions on your use of the Service" See iTMS Terms of Service, 21, 23 available at http://www.apple.com/legal/itunes/us/terms.html#SERVICE (last visited Aug. 27, 24 2 See Press Release, Music Launches DRM-free iTunes Downloads in 25 Higher-Quality (Apr. 2, Apple Insider, EMIat http://www.appleinsider.com/articles/07/04/02/ 2007) (available 26 emi_music_launches_drm_free_itunes_downloads_in_higher_quality.html). 3 Two million songs available on iTMS were not 27 until the endmillion of the ten See Changes Coming to the iTunes Store,sold in "DRM-free" format of March 2009. infra. 28 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -2- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page4 of 14 1 2009). Without injunctive relief, Apple is still free to impose a technological restriction that 2 prevents customers from directly playing their iTMS music on competing portable players in the 3 future. 4 In addition, Apple has never offered any DRM-free option on any video files. Purchasers of 5 iTMS video files are still locked into purchasing an iPod for direct playback on a portable player. 6 Viewed against this background, it is readily apparent that Apple's limited change of practice 7 does not defeat Direct Purchaser Plaintiffs' claim for injunctive relief. The Supreme Court has long 8 recognized that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of 9 power to hear and determine the case, i.e., does not make the case moot." United States v. W.T. 10 Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894 (1953). As the Court explained in W.T. Grant, also an 11 antitrust case, "The defendant is free to return to his old ways. This, together with a public interest in 12 having the legality of the practices settled, militates against a mootness conclusion." Id. (citations 13 omitted). This policy is especially important to further the goals of antitrust law: 14 15 16 When defendants are shown to have settled into a continuing practice or entered into a conspiracy violative of antitrust laws, courts will not assume that it has been abandoned without clear proof. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. 17 United States v. Oregon State Med. Soc'y, 343 U.S. 326, 333, 72 S. Ct. 690 (1952). 18 Dismissal of an injunctive relief claim upon a defendant's voluntary change of practice is 19 appropriate only in narrow circumstances, and then only upon a strong showing by the defendant 20 that there is no reasonable possibility that the complained of conduct may be undertaken once again. 21 As the Court has explained, "[t]he case may nevertheless be moot if the defendant can demonstrate 22 that `there is no reasonable expectation that the wrong will be repeated.' The burden is a heavy 23 one." W.T. Grant, 345 U.S. at 633 (emphasis added); see also Perfect 10, Inc. v. Amazon, com, Inc., 24 508 F.3d 1146, 1176 n.16 (9th Cir. 2007) (injunctive relief still available after activity at issue ended 25 "because Amazon.com has not established `that the allegedly wrongful behavior cannot reasonably 26 be expected to recur'") (quoting F.T.C. v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir. 27 1999)); Gen. Cinema Corp. v. Vista Distrib. Co., Inc., 532 F. Supp. 1244, 1275 n.13 (C.D. Cal. 28 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -3- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page5 of 14 1 1982) (sufficient threat of injury demonstrated where defendant vehemently denied that its past 2 conduct was anticompetitive despite defendant's current cessation of the practice). 3 Here, of course, Apple cannot come close to satisfying that heavy burden. The Scott 4 Declaration, which triggered the Court's inquiry, provides no assurances about Apple's future plans 5 with respect to its DRM-removal policies. Further, the history of Apple's various practice changes, 6 even during the course of this litigation, Apple's explicit reservation of rights to unilaterally alter the 7 terms of service of its iTMS, and Apple's vehement denial that its conduct was anticompetitive, 8 make clear that Apple has not and cannot make a showing that there is no reasonable probability that 9 it will impose DRM or other technological restrictions limiting interoperability on iTMS music files 10 in the future. Of course, as to iTMS video files, DRM restrictions continue to be in place to this day 11 without any means of obtaining a DRM-free video file from iTMS. 12 Even assuming arguendo that Apple could make a convincing showing that it would never 13 go back on its present practice of offering a DRM-free music purchase option, injunctive relief is 14 still necessary. Apple's present policy does nothing to address any DRM restrictions on iTMS video 15 files. The present policy also does nothing to remedy its conduct in forcing additional payments 16 from customers to remove DRM from their existing music libraries. See Wiley v. Nat'l Collegiate 17 Athletic Ass'n, 612 F.2d 473, 476 (10th Cir. 1979) (voluntary cessation of conduct does not defeat 18 injunctive relief "when, as here, the amendment does not fully comport with the relief sought by the 19 plaintiff"). If Apple's DRM restrictions are shown to violate antitrust laws, injunctive relief is still 20 needed to force Apple to remove its DRM restrictions on all music and video files at no cost to the 21 customer and to enjoin Apple from imposing additional restrictions in the future. See Cal. v. Nw 22 Pac. R.R. Co., 726 F.2d 505 (9th Cir. 1984) (affirming district court's issuance of a mandatory 23 injunction). 24 III. 25 26 iPOD AND iTMS PURCHASERS ARE BOTH ENTITLED TO INJUNCTIVE RELIEF REMEDYING APPLE'S ANTICOMPETITIVE CONDUCT The Court also raised two questions about the relationship between the injunctive relief class 27 as currently defined, consisting of only iPod purchasers, and the nature of the injunctive relief 28 sought. The Court noted that iTMS purchasers would benefit from injunctive relief which removed DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -4- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page6 of 14 1 DRM from existing iTMS libraries, and expressed concern that the class definition was limited to 2 iPod purchasers. The Court also stated that it was unclear "how a class of iPod purchasers would be 3 entitled to equitable relief in the form of free access to DRM-free iTMS music and video files." 4 Order at 3. 5 In response to the Court's first inquiry, Direct Purchaser Plaintiffs agree that any injunctive 6 relief requiring removal of DRM in existing iTMS libraries would benefit iTMS purchasers, and are 7 concurrently filing a motion to modify the injunctive relief class definition to include iTMS 8 purchasers.4 The modified definition comports with the Class definition alleged in the Complaint.5 9 Complaint, 31. If Apple's conduct is proven unlawful, iTMS purchasers would be as entitled as 10 iPod purchasers to injunctive relief in the form of removal of the DRM from: (a) their past 11 purchases of iTMS audio and video files; and (b) current and future purchases of iTMS video files. 12 In light of this motion for modification of the Class definition, it would be improper to strike Direct 13 Purchaser Plaintiffs' plea for injunctive relief. 14 In response to the Court's second inquiry, iPod purchasers will benefit from the injunctive 15 relief Direct Purchaser Plaintiffs seek because they remain locked in. Direct Purchaser Plaintiffs 16 have alleged Apple used its monopoly power in digital downloads sold through iTMS 17 anticompetitively to gain market power in portable digital media players. Id., 21-22, 86. By 18 forcing people who wished to purchase a portable digital media player for use with iTMS to 19 purchase an iPod, Apple increased demand to raise the price of iPods. Id., 72-74. The harm from 20 this practice includes the iPod overcharge, but injunctive relief is needed to undo other harms caused 21 by Apple's anticompetitive conduct.6 22 23 Although Apple's data show that the vast majority of iTMS purchasers are also iPod purchasers, some consumers purchased iTMS files without being direct iPod purchasers. 24 5 See Complaint for Violations of Sherman Antitrust Act, Clayton Act, Cartwright Act, 25 California Unfair Competition Law, Consumer Legal Remedies Act, and California Common Law 26 of Monopolization, ("Complaint"), filed April 19, 2007. 6 Direct Purchaser at 27 specificity all aspects of Plaintiffs are not requiredwillthis stage of the litigation to identify with the injunctive relief they seek if they prevail in this litigation. See Shook v. Bd. of Cty. Comm'rs of Cty. of El Paso, 543 F.3d 597, 605-06 (10th Cir. 2008) (at class 28 4 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -5- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page7 of 14 1 Technology in portable digital media players is advancing rapidly, as seen in expanded 2 memory limits and the inclusion of Internet access capability in more recent models. See, e.g., 3 http://www.apple.com/ipodtouch/. If an owner of an iPod wishes to upgrade to a newer model, he 4 cannot switch to a more preferred competitor's brand without losing the ability to play existing files 5 purchased from iTMS. Even an iPod purchaser who has no current desire to purchase a new 6 portable digital media player still benefits from the relief because if that iPod is lost or stolen, he or 7 she is locked into replacing it with an iPod instead of a potentially more desirable substitute. See, 8 e.g., Merrick Decl., Ex. 1, Deposition of Melanie Tucker, taken October 26, 2007, at 12:20-13:5 9 (explaining that she purchased a second iPod after her first iPod broke because her existing library of 10 iTMS songs could only be played on an iPod). These purchasers are made whole if Apple removes 11 the DRM protection on the previously purchased files. The relief sought is not "free access to DRM12 free iTMS music and video files." Order at 3. Rather, Direct Purchaser Plaintiffs seek the removal 13 of Apple's DRM, which Apple has used to enhance its market power in the digital file market and to 14 gain monopoly power in the portable player market. 15 Further, the continuation of Apple's policy of placing DRM restrictions on all iTMS video 16 files locks in all iPod owners who own iTMS video files or who might want to purchase them in the 17 future. 18 One means of remedying Apple's anticompetitive conduct is an injunction that: (1) requires 19 Apple to remove DRM from already-purchased iTMS music files; (2) prohibits Apple from placing 20 DRM on iTMS video files; and (3) prohibits Apple from placing DRM or other technological 21 restrictions limiting interoperability on iTMS music or video files in the future. Because this relief 22 would benefit iPod and iTMS purchasers alike, injunctive relief is appropriate. 23 24 25 stage, injunctive relief sought must only enough that the 26 certificationof satisfying federal rules). Nonetheless, as be detailedrecognized, Direct Court can "conceive" the Court Purchaser Plaintiffs anticipate that one component of that relief will likely be the removal of DRM from 27 already-purchased iTMS files. 28 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -6- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page8 of 14 1 IV. 2 INJUNCTIVE RELIEF IS CONSISTENT WITH THE OPERATIVE THEORIES OF LIABILITY The Court has also sought clarification on how the plea for injunctive relief relates to the 3 operative theories of liability now that the Court has dismissed Direct Purchaser Plaintiffs' per se 4 tying claim. 5 First, Direct Purchaser Plaintiffs have asserted a tying theory under the rule of reason. If the 6 Court sustains that tying claim and certifies it for class treatment, the injunctive relief Direct 7 Purchaser Plaintiffs seek directly remedies the tying conduct. 8 In addition to Direct Purchaser Plaintiffs' rule of reason tying claim, Direct Purchaser 9 Plaintiffs' monopolization and attempted monopolization claims are based on the forced link 10 between the iPod and iTMS files caused by Apple's use of its proprietary FairPlay DRM. 11 Complaint, 86, 90, 94, 99, 105, 111. By deliberately limiting the ability to play iTMS files on 12 non-iPod portable players, Apple was able to achieve and/or maintain monopoly power in the 13 portable digital media player, online music, and online video markets. Complaint, 21-23, 86, 90, 14 94. That is, as a result of its imposition of a technological restriction, Apple was able to exclude 15 competing portable digital media player makers from competing for that large group of consumers 16 who had purchased iTMS files (the largest source by far of online music files) and wished to play 17 them on a portable digital media player, directly and exclude competitors in the online music and 18 video markets from selling files that could be played on an iPod. Id., 74-77, 86, 90, 94. 19 In order to prove that Apple's monopolization of the portable player, online music and online 20 video markets violates Section 2 of the Sherman Act, Direct Purchaser Plaintiffs must show that 21 Apple acquired or has maintained that monopoly through "willful" conduct, i.e., improper conduct 22 that has had the effect of excluding or driving rivals from the market on some basis other than 23 competition on the merits. See United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966); 24 Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 n.32, 105 S. Ct. 2847 (1985) 25 (defining willful element of monopolization claim as "behavior that not only tends to impair the 26 opportunities of rivals, but also either does not further competition on the merits or does so in an 27 unnecessarily restrictive way."). Here, Direct Purchaser Plaintiffs allege that Apple's deliberate 28 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -7- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page9 of 14 1 restriction of iTMS interoperability through use of FairPlay DRM and continued software updates 2 constitutes such "willful" exclusionary conduct. Complaint, 86, 90, 94. 3 The exclusionary or predatory conduct that satisfies the "willfulness" element of a 4 monopolization claim may also constitute a violation of Section 1 of the Sherman Act. For example, 5 in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 485-86, 112 S. Ct. 2072 6 (1992) the Court held that Kodak's tying of sales and service could, in addition to constituting an 7 illegal tying arrangement under Section 1, also constitute a violation of Section 2. Similarly, in 8 United States v. Microsoft Corp., 253 F.3d 34, 64 (D.C. Cir. 2001), the government challenged 9 Microsoft's dealings with its original equipment manufacturers as unlawful tying agreements and as 10 unlawful exclusionary conduct under Section 2. See also Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 11 396 F.3d 96, 101 (2d Cir. 2005) (defendants' "Honor All Cards" policy was basis of alleged tying 12 and Section 2 monopoly claims); Tele Atlas N.V. v. NAVTEQ Corp., No. C-05-01673 RS, 2008 WL 13 4911230, at *2-*3 (N.D. Cal. Nov. 13, 2008) (holding that tying conduct could serve as the basis for 14 plaintiff's Section 2 claim even though it was not found to violate Section 1 by itself). 15 Of course, the alleged exclusionary or predatory conduct that gives rise to a monopolization 16 claim need not amount to a stand-alone tying claim or other violation of Section 1. See id. (allowing 17 evidence of tying conduct as basis for Section 2 claim because although the tie was not illegal in and 18 of itself, when combined with the foreclosure of competition, the tie may have had an 19 anticompetitive effect). Were it otherwise, that would lead to the absurd proposition that a party 20 could never successfully assert a Section 2 monopolization claim unless it also proved, as part of its 21 monopolization case, a separate Section 1 offense. That is not the law. See Granddad Bread, Inc. v. 22 Cont'l Baking Co., 612 F.2d 1105, 1111 (9th Cir. 1979) ("the essential elements of a Section One 23 offense are substantially different than for a Section Two offense"). Thus, whether or not tying 24 remains a viable cause of action, Apple's alleged conduct still forms the basis for the predatory or 25 exclusionary conduct element of the Class' Section 2 monopolization claims. Thus, an injunction 26 that eliminates the DRM restrictions that have enabled Apple to acquire and/or maintain a monopoly 27 in the portable digital media player, online music, and online video markets remain appropriate even 28 if Direct Purchaser Plaintiffs have not alleged a tying claim under Section 1. DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) -8- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page10 of 14 1 Both because the Court has not ruled on Direct Purchaser Plaintiffs' rule of reason tying 2 claim, and because the tying conduct forms part of the predatory behavior underlying Direct 3 Purchaser Plaintiffs' monopolization claims, it would be improper to strike the injunctive relief 4 claim. 5 V. 6 CONCLUSION For all the foregoing reasons, Direct Purchaser Plaintiffs have properly pleaded a prayer for 7 injunctive relief, and that plea should not be stricken. 8 DATED: August 31, 2009 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Thomas R. Merrick THOMAS R. MERRICK 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 DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK -9- Case5:05-cv-00037-JW Document238 Filed08/31/09 Page11 of 14 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\BRF 00061429.doc DIRECT PURCHASER PLAINTIFFS' MEMORANDUM IN RESPONSE TO COURT'S JULY 17, 2009 ORDER AS TO INJUNCTIVE RELIEF SOUGHT - C-05-00037-JW(RS) - 10 - Case5:05-cv-00037-JW Document238 Filed08/31/09 Page12 of 14 1 2 CERTIFICATE OF SERVICE I hereby certify that on August 31, 2009, I electronically filed the foregoing with the Clerk of 3 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 August 31, 2009. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Thomas R. Merrick THOMAS R. MERRICK 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: tmerrick@csgrr.com CAND-ECFCase5:05-cv-00037-JW Document238 Page 1 of 2 Filed08/31/09 Page13 of 14 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 D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com Michael S. Friedman rcreech@bffb.com,afriedman@bffb.com Andrew Haeggquist alreenh@zhlaw.com,judyj@zhlaw.com Alreen A. Katriel rak@katriellaw.com,rk618@aol.com Roy J. Kennedy tkennedy@murrayfrank.com Thomas Craig Kiernan dkiernan@jonesday.com,lwong@jonesday.com,valdajani@jonesday.com David Robert Merrick tmerrick@csgrr.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 Michael Tedder Scott https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?931605914516713-L_170_0-1 8/31/2009 CAND-ECFCase5:05-cv-00037-JW Document238 michaelscott@jonesday.com,gwayte@jonesday.com Page 2 of 2 Filed08/31/09 Page14 of 14 Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com Craig J. Stoia , Jr jstoia@csgrr.com John Strong invalidaddress@invalidaddress.com Tracy 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?931605914516713-L_170_0-1 8/31/2009