"The Apple iPod iTunes Anti-Trust Litigation"

Filing 253

Memorandum in Opposition re 244 MOTION for Reconsideration of Rule 23(b)(2) Class filed byMelanie Tucker. (Merrick, Thomas) (Filed on 9/14/2009)

"The Apple iPod iTunes Anti-Trust Litigation" Doc. 253 Case5:05-cv-00037-JW Document253 Filed09/14/09 Page1 of 24 1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: 619/231-1058 5 619/231-7423 (fax) johns@csgrr.com 6 bonnys@csgrr.com tmerrick@csgrr.com 7 THE KATRIEL LAW FIRM 8 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 9 Washington, DC 20007 Telephone: 202/625-4342 10 202/330-5593 (fax) rak@katriellaw.com 11 Co-Lead Counsel for Plaintiffs 12 [Additional counsel appear on signature page.] 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS) ) 17 LITIGATION ) CLASS ACTION ) 18 ) PLAINTIFFS' OPPOSITION TO This Document Relates To: ) DEFENDANT'S MOTION FOR 19 ) RECONSIDERATION OF RULE 23(b)(2) ALL ACTIONS. 20 ) CLASS 21 22 23 24 25 26 27 28 Judge: Date: Time: Ctrm: Hon. James Ware October 5, 2009 9:00 a.m. 8 ­ 4th Floor Dockets.Justia.com Case5:05-cv-00037-JW Document253 Filed09/14/09 Page2 of 24 1 2 3 I. 4 II. 5 III. 6 7 IV. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. E. B. C. D. TABLE OF CONTENTS Page INTRODUCTION ...............................................................................................................1 LEGAL STANDARD..........................................................................................................1 THE INJUNCTIVE RELIEF PLAINTIFFS SEEK IS NOT MOOTED BY APPLE'S VOLUNTARY REMOVAL OF DRM FROM NEWLY PURCHASED ITMS MUSIC FILES...........................................................................................................2 CERTIFICATION OF THE RULE 23(b)(2) CLASS WAS PROPER ...............................5 A. Plaintiffs' Request for Both Monetary and Injunctive Relief Does Not Defeat Certification of a 23(b)(2) Class...................................................................5 Requiring Apple to Remove FairPlay from Previously Purchased iTMS Music Files Does Not Amount to Damages ..........................................................10 iPod Purchasers, Like iTMS Purchasers, Are Entitled to Injunctive Relief ..........11 Any Cost Imposed by Removal of Apple's Anticompetitive Conduct is Outweighed by the Benefit to the Class.................................................................13 The Certified Class Properly Includes iTMS Video Purchasers............................15 CONCLUSION..................................................................................................................15 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -i- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page3 of 24 1 2 3 CASES TABLE OF AUTHORITIES Page 4 Abeyta v. Taos, 499 F.2d 323 (10th Cir. 1974) .....................................................................................13, 14 5 Allison v. Citgo Petroleum Corp., 6 151 F.3d 402 (5th Cir. 1998) ...............................................................................................8 7 Bautista-Perez v. Holder, No. C 07-4192 TEH, 2009 WL 2031759 8 (N.D. Cal. Jul. 9, 2009)....................................................................................................7, 8 9 Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) ...............................................................................................8 10 Cargill, Inc. v. Monfort of Colo., Inc., 11 479 U.S. 104, 107 S. Ct. 484 (1986)............................................................................11, 13 12 Catlin v. Wash. Energy Co., 791 F.2d 1343 (9th Cir. 1986) ...........................................................................................10 13 Daly v. Harris, 14 209 F.R.D. 180 (D. Haw. 2002)...........................................................................................6 15 Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864 (9th Cir. 1991) .............................................................................................11 16 Dukes v. Wal-Mart, Inc., 17 509 F.3d 1168 (9th Cir. 2007) .............................................................................................6 18 Gen. Cinema Corp. v. Vista Distrib. Co., Inc., 532 F. Supp. 1244 (C.D. Cal. 1982) ....................................................................................4 19 In re Mercedes-Benz Antitrust Litig., 20 213 F.R.D. 180 (D.N.J. 2003)............................................................................................12 21 In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493 (S.D.N.Y. 1996) .................................................................................6, 7, 8 22 In re New Motor Vehicles Canadian Export Antitrust Litig., 23 No. MDL 1532, 2006 WL 623591 (D. Me. Mar. 10, 2006) ......................................................................................................10 24 In re Warfarin Sodium Antitrust Litig., 25 214 F.3d 395 (3d Cir. 2000)...............................................................................................11 26 Janda v. T-Mobile, USA, Inc., No. C 05-03729 JSW, 2008 WL 4847116 27 (N.D. Cal. Nov. 7, 2008)....................................................................................................12 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) - ii - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page4 of 24 1 2 Page 3 Kurihara v. Best Buy Co., Inc., No. C 06-01884 MHP, 2007 WL 2501698 4 (N.D. Cal. Aug. 30, 2007)....................................................................................................9 5 Labrie v. UPS Supply Chain Solutions, Inc., No. C08-3182 PJH, 2009 WL 723599 6 (N.D. Cal. Mar. 18, 2009)....................................................................................................4 7 Linney v. Cellular Alaska P'ship, 151 F.3d 1234 (9th Cir. 1998) .........................................................................................5, 9 8 McCarthy v. Recordex Serv., Inc., 9 80 F.3d 842 (3d Cir. 1996)...................................................................................................2 10 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) .......................................................................................6, 7, 8 11 Parks v. Watson, 12 716 F.2d 646 (9th Cir. 1983) .............................................................................................11 13 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) .............................................................................................4 14 Probe v. Teachers' Ret. Sys., 15 780 F.2d 776 (9th Cir. 1986) ...............................................................................................6 16 Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006) .............................................................................................10 17 Rodriguez v. Hayes, 18 No. 08-56156 __ F.3d __ , 2009 WL 2526622 (9th Cir. Aug. 20, 2009).........................................................................................10, 12, 15 19 School Dist. No. 1J v. AC&S, Inc., 20 5 F.3d 1255 (9th Cir. 1993) .................................................................................................1 21 Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229 (C.D. Cal. 2006) .........................................................................................9 22 Shook v. Bd. of Cty. Comm'rs of Cty. of El Paso, 23 543 F.3d 597 (10th Cir. 2008) .............................................................................................2 24 United States v. Oregon State Med. Soc'y, 343 U.S. 326, 72 S. Ct. 690 (1952)......................................................................................4 25 United States v. W.T. Grant Co., 26 345 U.S. 629, 73 S. Ct. 894 (1953)......................................................................................3 27 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ...........................................................................................10 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) - iii - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page5 of 24 1 2 Page 3 Wren v. RGIS Inventory Specialists, 256 F.R.D. 180 (N.D. Cal. 2009).........................................................................................9 4 Zenith Radio Corp. v. Hazeltine Research, Inc., 5 395 U.S. 100, 89 S. Ct. 1562 (1969)..................................................................................11 6 Zinser, v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) .............................................................................................6 7 STATUTES, RULES AND REGULATIONS 8 15 U.S.C. 9 §26......................................................................................................................................14 10 Federal Rules of Civil Procedure Rule 23 .............................................................................................................................6, 8 11 Rule 23(b)(2).............................................................................................................. passim Rule 54(b) ............................................................................................................................1 12 United States District Court of Northern District of California 13 Local Rule 7-9(b).............................................................................................................1, 2 Local Rule 7-9(c) .......................................................................................................2, 5, 15 14 SECONDARY AUTHORITIES 15 Philip J. Weiser, Regulating Interoperability: Lessons from AT&T, Microsoft, and 16 Beyond, 76 Antitrust L.J. 271 (2009) ..................................................................................2 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) - iv - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page6 of 24 1 Plaintiffs Somtai Troy Charoensak, Mariana Rosen, and Melanie Tucker (collectively 2 "Plaintiffs") respectfully submit this memorandum in opposition to Defendant Apple, Inc.'s 3 ("Apple" or "Defendant") Motion for Reconsideration of Rule 23(b)(2) Class, (Dkt. No. 245) 4 ("Def's Motion"). 5 I. 6 INTRODUCTION In its July 17, 2009 Order Directing Parties to Submit Further Briefing (Dkt. No. 228) 7 ("Order"), the Court requested additional briefing concerning Plaintiffs' certified injunctive relief 8 Class. Specifically, the Court sought briefing regarding: (1) the intersection of claims being 9 asserted by the direct purchasers in this case and the indirect purchasers in Somers v. Apple, Inc., No. 10 07-cv-6507 JW (N.D. Cal.); (2) the class definition; and (3) the form of injunctive relief sought. 11 Order at 2-3. Plaintiffs filed a response to the Court's questions (Dkt. No. 238), as well as this 12 motion to modify the injunctive relief class to include purchasers of iTunes Store ("iTMS") files 13 (Dkt. No. 236). Apple filed this motion for reconsideration. 14 Through this motion Apple asks the Court to decertify the injunctive relief Class. Apple's 15 motion however fails to identify new facts or law or a single individual issue which would 16 necessitate decertification. Instead, Apple reargues contentions already considered by the Court in 17 opposition for class certification and raises several red herrings in an effort to distract the Court from 18 the relevant issues. Importantly, Apple fails to demonstrate either how its voluntary removal of 19 FairPlay from newly purchased iTMS music files defeats Plaintiffs' claim for injunctive relief, or 20 why the Class is not entitled to injunctive relief. For the reasons stated below, Apple's motion for 21 reconsideration of the Court's December 22, 2008 order certifying an injunctive relief class should 22 be denied. 23 II. 24 LEGAL STANDARD Any order by the district court which does not terminate the action may be reconsidered 25 under Fed. R. Civ. P. 54(b). "Reconsideration is appropriate if the district court: (1) is presented 26 with newly discovered evidence, (2) committed clear error or the initial decision was manifestly 27 unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J v. AC&S, 28 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Similarly, Local Rule 7-9(b) permits reconsideration of a PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -1- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page7 of 24 1 court's order only if: (1) a material difference in fact or law exists from that which was presented to 2 the court before entry of the original order; (2) there has been an emergence of new material facts or 3 a change of law; or (3) there was a manifest failure by the court to consider material facts or 4 dispositive legal arguments. L.R. 7-9(b). Motions for reconsideration shall not repeat arguments 5 made in conjunction with the Court's original order. L.R. 7-9(c). 6 III. 7 8 THE INJUNCTIVE RELIEF PLAINTIFFS SEEK IS NOT MOOTED BY APPLE'S VOLUNTARY REMOVAL OF DRM FROM NEWLY PURCHASED ITMS MUSIC FILES Apple suggests that its removal of FairPlay from newly-purchased iTMS music files since the 9 Court's certification of the injunctive relief Class is a "new" fact providing basis for reconsideration. 10 See Def's Motion at 7. However, Apple fails to demonstrate that this "new" fact moots Plaintiffs' 11 claim for injunctive relief. Although Plaintiffs are not required at this stage to identify all aspects of 12 relief they will seek if they prevail on the merits (see Shook v. Bd. of Cty. Comm'rs of Cty. of El 13 Paso, 543 F.3d 597, 605-06 (10th Cir. 2008)), Plaintiffs seek a broader range of injunctive relief than 14 simply having Apple remove FairPlay on a going-forward basis. See Def's Motion at 7 (stating that 15 Plaintiffs only "asserted that injunctive relief was proper to force Apple to stop selling iTS content 16 that cannot be played on competing players"). In fact, in their motion for class certification, 17 Plaintiffs sought to enjoin Apple from: (a) rendering online digital audio and video recordings sold 18 through the iTMS inoperable with portable players other than iPod; and (b) to "unlock" the iTMS 19 recordings previously purchased so that they may be played on portable players other than iPods.1 20 Class Cert. Motion at 10. Neither form of requested injunctive relief is mooted by Apple now selling 21 DRM-free music.2 22 23 1 See Notice of Motion 24 (Dkt. No. 165), ("Class Cert. and Motion for Class Certification and Appointment of Class Counsel, Motion"). 25 2 While Plaintiffs have identified viable injunctive relief should they prevail on the merits, this not the only feasible injunctive relief. Indeed, courts are encouraged to be 26 is certainly as this which seek to create interoperability among products. See Philip creative in cases such J. Weiser, Regulating Interoperability: Lessons from AT&T, Microsoft, and Beyond, 76 Antitrust L.J. 271, 293 27 (2009) ("[I]t is incumbent on enforcers and courts to utilize increased creativity as to what 28 institutional strategies can enable behavioral remedies to succeed."); see also McCarthy v. Recordex PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -2- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page8 of 24 1 While Apple now sells iTMS music files without FairPlay, billions of previously purchased 2 music files still contain the restriction, making them unusable for direct playback on any other 3 portable media device than an iPod. See Press Release, Apple, iTunes Store Tops Over Five Billion 4 Songs Sold (Jun. 19, 2008) (available at http://www.apple.com/pr/library/2008/06/19itunes.html). 5 Consumers who have purchased these files are still required to purchase an iPod for direct playback 6 on a portable digital media player. Additionally, if their current iPod breaks or is lost, they are still 7 forced to purchase another iPod to play their previously-purchased files because iPods are still the 8 only portable digital media players which can directly play iTMS FairPlay-encrypted files.3 CC, 9 ¶44. The only option these Class members currently have is to pay Apple an additional $0.30 a song 10 or 30% of the purchase price of the album. See Press Release, Apple, Changes Coming to the iTunes 11 Store (Jan. 6, 2009) (available at http://www.apple.com/pr/library/2009/01/06itunes.html). These 12 fees are in addition to the $0.99 per song and $9.99 per album they already paid Apple in the first 13 place. See Press Release, Apple, Apple Launches the iTunes Music Store, (April 28, 2003) (available 14 at http://www.apple.com/pr/library/2003/apr/28musicstore.html). Even Apple admits this is a steep 15 price to pay. See Def's Motion at 13. 16 Additionally, all video files sold through iTMS remain encrypted and are thus, inoperable 17 with competing players. To the extent a purchaser may be able to play newly purchased iTMS 18 music files on a competing portable player, he or she is still forced to use an iPod for playback of all 19 iTMS video files or previously purchased iTMS music files. And, again, this restriction still exists 20 on billions of songs. 21 Moreover, even if Apple could demonstrate that it has ceased acting anticompetitively 22 entirely, it could not meet the heavy burden necessary to demonstrate that its voluntary cessation of 23 allegedly anticompetitive conduct will not recur in the future. See United States v. W.T. Grant Co., 24 ("injunctive 25 Serv., Inc., 80 F.3d 842, 856 (3d Cir. 1996)antitrust laws remedy [under Clayton Act] is a more flexible and adaptable tool for enforcing the than the damage remedy"). 26 Consolidated Complaint for Violations of Sherman Antitrust Act, Clayton Act, Cartwright Act, California Unfair Competition Law, Consumer Legal Remedies Act, and California Common 27 Law of Monopolization, (Dkt. No. 107), ("CC"). 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) 3 -3- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page9 of 24 1 345 U.S. 629, 633, 73 S. Ct. 894 (1953) (""`the case may nevertheless be moot if the defendant can 2 demonstrate that `there is no reasonable expectation that the wrong will be repeated." The burden is 3 a heavy one."); see also United States v. Oregon State Med. Soc'y, 343 U.S. 326, 333, 72 S. Ct. 690 4 (1952) ("When defendants are shown to have settled into a continuing practice . . . violative of 5 antitrust laws, courts will not assume that it has been abandoned without clear proof."). The 6 language in the current Terms of Service permits Apple to "impose new or additional rules, policies, 7 terms, or conditions" at any time, there is no guarantee that Apple will not impose a similar 8 restriction in the future should it believe it is in its competitive advantage to do so. See iTMS Terms 9 of Service, ¶21, available at http://www.apple.com/legal/itunes/us/terms.html#SERVICE (last visited 10 September 13, 2009). Without injunctive relief, Apple is free to impose similar technological 11 restrictions in the future. 12 Apple continues to use FairPlay on preexisting iTMS music files and all iTMS video files. It 13 has also continued its practice of updating its software to maintain the "lock" between iTMS files 14 and iPods.4 See, e.g., Ian Paul, iTunes 9 Breaks Palm Pre Sync (Again), (Sep. 10, 2009) (available 15 at http://www.pcworld.com/article/171729/itunes_9_breaks_palm_pre_sync_again.html). Apple's 16 voluntary removal of FairPlay from some files is simply not sufficient to cure its anticompetitive 17 practices. See, e.g., CC, ¶¶51-55; see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1176 18 n.16 (9th Cir. 2007) (injunctive relief available even after conduct ended "because Amazon.com has 19 not established `that the allegedly wrongful behavior cannot reasonably be expected to recur'"); see 20 also Gen. Cinema Corp. v. Vista Distrib. Co., Inc., 532 F. Supp. 1244, 1275 n.13 (C.D. Cal. 1982) 21 (sufficient threat of injury demonstrated where Defendant vehemently denied that its past conduct 22 23 24 25 4 Plaintiffs are conducting discovery now on 26 continuing reveals the impropriety of this motion. Apple's updates. The fact that merits discovery is See Labrie v. UPS Supply Chain Solutions, Inc., No. C08-3182 PJH, 2009 WL 723599, at *4-*5 (N.D. Cal. Mar. 18, 2009) (reconsideration of 27 certified class is improper before merits discovery). 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -4- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page10 of 24 1 was anticompetitive despite Defendant's current cessation of the practice); Response to July 17, 2 2009 Order5; July 17, 2009 Order, at 3-4. 3 Class members remain "locked-in" to using an iPod for direct playback of their previously 4 purchased iTMS music files and all video files and thus, injunctive relief remains necessary and 5 appropriate. 6 IV. 7 CERTIFICATION OF THE RULE 23(b)(2) CLASS WAS PROPER Apple also raises several arguments that the Court has already considered in the briefing 8 regarding certification of the injunctive relief Class. Without any new law to cite, Apple seems to 9 suggest that the Court did not adequately consider its arguments in its opposition to class 10 certification. There is simply no reason to revisit them. However, considered again, these 11 arguments fail once more. Moreover, Apple's contentions that Plaintiffs' requested injunctive relief 12 amounts to damages and the burden imposed on Apple by the injunctive relief is too great are merits 13 contentions considered and rejected previously by the Court. Finally, Plaintiffs have adequately 14 demonstrated that the Class of iPod purchasers and iTMS purchaser (as newly defined) are entitled 15 to injunctive relief.6 16 17 Citing the same case law as in its opposition to class certification, Apple reargues that 18 certification of a Rule 23(b)(2) class is inappropriate because Plaintiffs also allege monetary 19 damages. Def's Motion at 8-9; see Apple's Memorandum in Opposition to Motion for Class 20 Certification, (Dkt. No. 181), at 24. Not only is this improper on a motion for reconsideration (see 21 L.R. 7-9(c)), it is an insufficient basis to defeat class certification under Rule 23(b)(2). Linney v. 22 Cellular Alaska P'ship, 151 F.3d 1234, 1240 n.3 (9th Cir. 1998) (holding that "`class actions 23 24 Direct Purchaser Plaintiffs' Memorandum in Response to Court's July 17, 2009 Order as to Injunctive Relief Sought, (Dkt. No. 238), ("Response to July 17, 2009 Order"). 25 6 injunctive relief Class as defined in Plaintiffs' as: All 26 personsTheentities in the United States (excluding federal, motion to modify is defined entities, or state, and local government its directors, officers, and members who: (a) purchased an iPod from 27 Apple,purchased audio or video files from of their families)April 28, 2003. (Dkt. No. 236). Apple or (b) the iTMS since 28 5 A. Plaintiffs' Request for Both Monetary and Injunctive Relief Does Not Defeat Certification of a 23(b)(2) Class PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -5- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page11 of 24 1 certified under Rule 23(b)(2) are not limited to actions requesting only injunctive relief or 2 declaratory relief, but may include cases that also seek monetary damages'") (quoting Probe v. 3 Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986)). Indeed, courts routinely certify injunctive 4 relief classes where monetary damages are also alleged. See, e.g., In re NASDAQ Market-Makers 5 Antitrust Litig., 169 F.R.D. 493, 517 (S.D.N.Y. 1996) (pursuit of antitrust damages under the 6 Sherman Act alone is insufficient to defeat certification of Rule 23(b)(2)); see also Daly v. Harris, 7 209 F.R.D. 180, 200 (D. Haw. 2002) ("punitive and treble damages do not render the monetary 8 component predominant"). 9 Certification under Rule 23(b)(2) is unsuitable only when "the appropriate final relief relates 10 exclusively or predominately to money damages." Fed. R. Civ. P. 23, Adv. Comm. Notes on 1966 11 Amend. The Ninth Circuit has refused to adopt a bright-line test to determine predominance because 12 such a rule "would nullify the discretion vested in the district courts through Rule 23." Molski v. 13 Gleich, 318 F.3d 937, 950 (9th Cir. 2003). Instead, the Ninth Circuit has stated that certification of a 14 23(b)(2) class remains proper even in the absence of monetary relief, where "`reasonable plaintiffs 15 would bring the suit to obtain'" injunctive relief, and such injunctive relief "`would be both 16 necessary and appropriate [if] the plaintiffs . . . succeed on the merits.'" Dukes v. Wal-Mart, Inc., 17 509 F.3d 1168, 1187-88 (9th Cir. 2007) (quoting Molski, 318 F.3d at 950 n.15). This is a fact 18 specific inquiry. 7 Molski, 318 F.3d at 950. 19 Here, if Plaintiffs succeed on the merits, the injunctive relief sought is necessary. Plaintiffs' 20 injunctive relief Class as modified consists of both iPod purchases and purchasers of iTMS files. 21 22 23 24 25 26 27 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) Both Molski and Zinser, v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001), cited by Apple, actually support Plaintiffs' position. In Molski, the court affirmed certification of a 23(b)(2) class finding that injunctive relief was predominant because defendant "acted in a manner generally applicable to the class." Molski, 318 F.3d at 950. The same is true here; Apple imposed the identical technological restriction on all iPods and iTMS purchases. CC, ¶¶41, 42, 74. In Zinser, the court affirmed denial of certification of a 23(b)(2) class for medical monitoring where plaintiffs sought a reserve fund for past and future damages and compensation for future medical treatment, as well as research into alternative methods of treatment for plaintiffs. Zinser, 253 F.3d at 1196. The court found that this research was merely incidental to damages. Id. By contrast here, Plaintiffs seek removal of the anticompetitive conduct that caused their injury and not merely inquiry into how plaintiffs can be remedied. CC, Prayer for Relief. 7 -6- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page12 of 24 1 Plaintiffs allege that Apple engaged in anticompetitive conduct by encrypting iTMS files with 2 FairPlay in order to restrict consumer choice in the purchase of portable digital media players. CC, 3 ¶¶41, 42. Plaintiffs allege further that Apple continues to issue software updates that foreclose 4 competition in the markets for portable digital media players and downloaded audio and video files. 5 Id., ¶¶51-55. If Plaintiffs are successful in proving that this conduct is in fact anticompetitive and 6 illegal, injunctive relief is necessary to remedy Apple's current use of FairPlay on video files and 7 previously purchased music files, imposition of similar technological restrictions in the future, and 8 release of software updates intended to maintain the "lock." 9 Additionally, Apple's anticompetitive conduct is ongoing such that, even in the absence of 10 monetary recovery, a reasonable purchaser of an iPod or iTMS files would bring this suit to enjoin 11 Apple. See Def's Motion at 8. Apple concedes that the requested injunctive relief, removing 12 FairPlay from pre-existing music files, is extremely valuable to Class members. Id. at 13. Without 13 such relief, class members are forced to pay additional fees to Apple for removal of FairPlay from 14 these music files and have no option with regard to their video files. The injunctive relief is indeed 15 valuable and thus, reasonable Plaintiffs would seek such relief. 16 The same was true in Bautista-Perez v. Holder, No. C 07-4192 TEH, 2009 WL 2031759 17 (N.D. Cal. Jul. 9, 2009). There Plaintiffs alleged the Department of Justice and Homeland Security 18 charged fees in excess of the statutory maximum for registration for "Temporary Protected Status." 19 Id. at *1. Plaintiffs sought injunctive relief to end the overcharge practice and monetary relief in the 20 amount of the excessive fees. Id. The court found certification of a 23(b)(2) class appropriate 21 despite the claim for monetary damages because injunctive relief would be necessary to prevent 22 Defendant from illegally collecting excessive fees in the future. Id. at *11. The court also found that 23 even if monetary relief were not available, a reasonable Plaintiff would bring a claim for injunctive 24 relief because the alleged illegal conduct was ongoing. Id. 25 Similarly, in NASDAQ, Plaintiffs alleged Defendants, market-makers on the NASDAQ 26 exchange, acted anticompetitively to fix spreads on class members' securities. NASDAQ, 169 F.R.D. 27 at 502. Plaintiffs alleged further that Defendants continued to act anticompetitively and thus, if not 28 enjoined would continue to injure members of the class. Id. at 516. The court certified an injunctive PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) -7- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page13 of 24 1 relief class despite Plaintiffs' claim for monetary damages, and found that in the event Plaintiffs 2 were able to prove Defendant violated the Sherman Act, injunctive relief would "be necessary to 3 ensure that [class members] are not harmed in the future by Defendants' anticompetitive conduct." 4 Id. at 517. 5 As in Bautista and NASDAQ, Plaintiffs here have demonstrated that, if they succeed on the 6 merits, injunctive relief will be necessary and appropriate because Apple's anticompetitive conduct 7 of imposing FairPlay on previously purchased music files and all video files is continuing. Without 8 injunctive relief, injury to Plaintiffs and the Class will continue. Moreover, Plaintiffs have 9 demonstrated that in the absence of monetary recovery, reasonable Plaintiffs would file suit for 10 injunctive relief because without court intervention, purchasers are only able to remove FairPlay 11 from previously-purchased music files at a substantial monetary cost and their video files remain 12 locked. 13 Apple also suggests that Plaintiffs are attempting to "shoehorn" their damages action into the 14 Rule 23(b)(2) framework. Def's Motion at 8-9 (citing Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 15 976 (5th Cir. 2000)). However Bolin is inapposite. In Bolin, the district court certified a 23(b)(2) 16 class of bankrupt debtors alleging illegal post-bankruptcy collection practices by Sears under several 17 causes of action. Id. at 972. The Fifth Circuit found that where monetary damages and injunctive 18 relief for each cause of action are intermingled, certification under 23(b)(2) only is inappropriate 19 because it denies class members notice and the opportunity to opt-out afforded by certification under 20 23(b)(3). Id. at 976. In holding that certification under 23(b)(2) was an abuse of discretion, the 21 court remanded for determination of whether certification would be appropriate under 23(b)(3) or a 22 "modified class" under both 23(b)(2) and (b)(3). Id. at 979. The same concerns do not arise here. 8 23 24 Moreover, the court in Bolin relied heavily on Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) which the Ninth Circuit expressly declined to follow. See Molski, 318 F.3d at 25 949 ("we refuse to adopt the approach set forth in Allison"). The Allison court adopted a bright-line for purposes of 26 test requiring all non-incidental damages to be considered predominant Molski adopted aRule 23(b)(2). Allison, 151 F.3d at 413-15. By contrast, the Ninth Circuit in fact specific inquiry that permits for discretion vested in the district courts by Rule 23. Molski, 318 F.3d 27 at 949-50. 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) 8 -8- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page14 of 24 1 A damages Class of iPod purchasers has been certified and that Class will receive notice and the 2 opportunity to opt out. See Class Cert. Order, at 13. 3 Additionally, a 23(b)(2) Class of iPod and iTMS purchasers is particularly suitable given 4 Apple's uniform conduct across the Class. Fed. R. Civ. P. 23(b)(2) ("A class action may be 5 maintained if . . . the party opposing the class has acted or refused to act on grounds that apply 6 generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate 7 respecting the class as a whole."); see also Linney, 151 F.3d at 1240 n.3 (affirming certification of 8 23(b)(2) class where Defendant's conduct was uniform to the class). Thus, any injunctive relief 9 would be common to the Class. 10 Apple's other authority is similarly unhelpful. See Def's Motion at 8-9. Wren v. RGIS 11 Inventory Specialists, 256 F.R.D. 180 (N.D. Cal. 2009) and Sepulveda v. Wal-Mart Stores, Inc., 237 12 F.R.D. 229 (C.D. Cal. 2006), both employment cases, involved former and current employees who 13 brought suit seeking recovery of unpaid wages and injunctive relief for violations of federal and state 14 labor laws. Wren, 256 F.R.D. at 184-85; Sepulveda, 237 F.R.D. at 232. Both courts found that 15 certification under 23(b)(2) was inappropriate because the named Plaintiffs were former employees 16 who did not have standing to obtain injunctive relief. Wren, 256 F.R.D. at 211; Sepulveda, 237 17 F.R.D. at 246. "In the employment context, courts routinely deny class certification under Rule 18 23(b)(2) where the named Plaintiff is a former employee and therefore will not benefit from the 19 requested injunctive relief." Kurihara v. Best Buy Co., Inc., No. C 06-01884 MHP, 2007 WL 20 2501698, at *8 (N.D. Cal. Aug. 30, 2007). By contrast, here, Class members have purchased an 21 iPod and iTMS files containing FairPlay and thus would be entitled to injunctive relief to remove 22 FairPlay encryption from all iTMS files.9 See Merrick Decl., Ex. 1 at 22:1-3 (Deposition of Somtai 23 Charoensak, taken January 12, 2007); Merrick Decl., Ex. 2 at 27:14-15 (Deposition of Mariana 24 Rosen, taken January 24, 2007); Merrick Decl., Ex. 3 at 77:24-78:10 (Deposition of Melanie Tucker, 25 taken October 26, 2007). Additionally, as discussed above, Class members would be entitled to 26 Declaration of Thomas R. Merrick in Support of Plaintiffs' Opposition to Defendant's 27 Motion See Reconsideration of Rule 23(b)(2) Class, filed concurrently ("Merrick Decl."). for 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) 9 -9- Case5:05-cv-00037-JW Document253 Filed09/14/09 Page15 of 24 1 injunctive relief to prevent Apple from issuing software updates or imposing restrictions in the future 2 that are intended to restrict consumer choice in portable digital media players. 3 Plaintiffs need not demonstrate, as Apple contends, that the injunctive relief would benefit 4 every member of the Class. Def's Motion at 8; see Rodriguez v. Hayes, No. 08-56156, __ F.3d __ , 5 2009 WL 2526622, at *13 (9th Cir. Aug. 20, 2009) (23(b)(2) does not require the court "to examine 6 the viability or bases of class members' claims for declaratory and injunctive relief, but only to look 7 at whether class members seek uniform relief from a practice applicable to all of them"); Walters v. 8 Reno, 145 F.3d 1032, 1047 (9th Cir. 1998) ("It is sufficient if class members complain of a pattern or 9 practice that is generally applicable to the class as a whole. Even if some class members have not 10 been injured by the challenged practice, a class may nevertheless be appropriate."). Because Apple's 11 anticompetitive conduct is common to the Class as a whole, certification under 23(b)(2) was 12 appropriate. 13 14 Apple contends that because it charges purchasers for the "DRM-free" version of music files 15 they purchased with FairPlay encryption, Class members would be receiving "free" music if 16 FairPlay is removed from these files at no charge. Def's Motion at 7, 9. This argument completely 17 misses the point of this litigation and the purpose of injunctive relief. 18 In order to obtain injunctive relief, Plaintiffs must first demonstrate a violation of the antitrust 19 laws. Catlin v. Wash. Energy Co., 791 F.2d 1343, 1350 (9th Cir. 1986). Plaintiffs must also 20 demonstrate that Defendant's illegal conduct is continuing. See Reyn's Pasta Bella, LLC v. Visa 21 USA, Inc., 442 F.3d 741, 749 (9th Cir. 2006) (allegations of continuing harm and continuing acts 22 required for injunctive relief under Clayton Act). If Plaintiffs are successful on the merits, then the 23 injunctive relief will seek to terminate Defendant's ongoing anticompetitive conduct and to end the 24 continuing or threatened harm. See In re New Motor Vehicles Canadian Export Antitrust Litig., No. 25 MDL 1532, 2006 WL 623591, at *7 (D. Me. Mar. 10, 2006) ("If the Plaintiffs succeed in proving 26 that Defendants' conduct violates the antitrust laws, and that the violation threatened or threatens 27 loss or damages and is likely to continue, then injunctive relief is appropriate, and appropriate to the 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) B. Requiring Apple to Remove FairPlay from Previously Purchased iTMS Music Files Does Not Amount to Damages - 10 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page16 of 24 1 class as a whole."); see also Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 869-70 (9th Cir. 2 1991) (injunctive relief is appropriate to address a threat of injury to Plaintiff). 3 Here, Plaintiffs must first prove that Apple's use of FairPlay and software updates are 4 anticompetitive and illegal. CC, ¶¶41, 42, 51-55. If Plaintiffs are successful on the merits, then the 5 injunctive relief will focus on ending Apple's ongoing use of FairPlay on previously purchased 6 iTMS music files and all video files and protecting Class members from injury in the future. This 7 includes complete removal of FairPlay (the anticompetitive conduct) from Class members previously 8 purchased files. There is no reason why Class members should be required to pay Apple for this 9 relief. See Def's Motion at 9. If Plaintiffs are successful on the merits, Apple should be required to 10 cease its anticompetitive conduct entirely, at no additional cost to Plaintiffs and Class members. 10 11 See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 402 (3d Cir. 2000) ("Unless enjoined, 12 [Defendant's] unlawful conduct will continue unchecked and the class will continue to bear the 13 financial brunt of the antitrust violations."). 14 15 Apple contends that iPod purchasers are not entitled to injunctive relief because it is 16 speculative whether they would be harmed in the future. Def's Mem. at 10. While Section 4 of the 17 Clayton Act requires proof of loss, Section 16 requires only a threat of loss. Cargill, Inc. v. Monfort 18 of Colo., Inc., 479 U.S. 104, 109-111, 107 S. Ct. 484 (1986). To be entitled to injunctive relief under 19 Section 16 a Plaintiff need only demonstrate "a significant threat of injury from [a] . . . violation of 20 the antitrust laws. . . ." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S. Ct. 21 1562 (1969); Parks v. Watson, 716 F.2d 646, 662 (9th Cir. 1983). 22 Here, an injunctive relief Class made up of both iPod purchasers and iTMS purchasers, can 23 demonstrate a significant threat of injury as a result of Apple's continuing anticompetitive conduct. 24 As discussed above, Apple acts anticompetitively by continuing to impose FairPlay restrictions on 25 26 10 Plaintiffs do not a part of 27 purchased "upgrades" ofseek, asfiles. Seethe injunctive relief class, reimbursement for previously iTMS Def's Motion at 9. 28 C. iPod Purchasers, Like iTMS Purchasers, Are Entitled to Injunctive Relief PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) - 11 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page17 of 24 1 previously purchased iTMS music files and all video files, and by issuing software updates which 2 restrict consumer choice in portable digital media players. See discussion supra, §IV.A. Without 3 court intervention Apple is free to continue to impose these restrictions on Plaintiffs requiring 4 continued use of an iPod for direct playback of their existing iTMS purchases. Thus, Plaintiffs, 5 purchasers of both iPods and iTMS files containing FairPlay encryption remain locked into use of an 6 iPod indefinitely until the FairPlay encryption is removed. 7 Apple contends that Plaintiffs are not entitled to injunctive relief because whether they would 8 purchase an iPod in the future is speculative. Def's Motion at 10. In contrast to In re Mercedes9 Benz Antitrust Litig., 213 F.R.D. 180, 186 (D.N.J. 2003), where Plaintiffs sought injunctive relief for 10 a wrong that occurred at the time of purchase of the product, here, Plaintiffs seek injunctive relief for 11 conduct that is ongoing because Plaintiffs own iTMS music files which are still encrypted with 12 FairPlay.11 Thus, it is not speculative whether Plaintiffs will purchase an iPod in the future because 13 they own FairPlay encrypted music files which cannot be played unless they own an iPod. 14 Plaintiffs are not required to demonstrate that every iPod owner will benefit from the 15 injunctive relief. Indeed, Rule 23(b)(2) does not require the Court "to examine the viability or bases 16 of class members' claims for declaratory and injunctive relief, but only to look at whether class 17 members seek uniform relief from a practice applicable to all of them. As [the Ninth Circuit has] 18 previously stated, `it is sufficient to meet the requirements of Rule 23(b)(2) that `class members 19 complain of a pattern or practice that is generally applicable to the class as a whole.'" Rodriguez, 20 2009 WL 2526622, at *13. Whether each class member would ultimately benefit from the requested 21 relief is irrelevant so long as all Class members seek identical relief from a single practice. Id. As 22 discussed above, Plaintiffs have demonstrated that Apple's anticompetitive conduct of imposing 23 24 25 The same is true for Janda v. T-Mobile, USA, Inc., No. C 05-03729 JSW, 2008 WL 4847116, at *4 (N.D. Cal. Nov. 7, 2008), also cited by Apple. Def's Motion at 10. In Janda, plaintiffs sought 26 to enjoin defendant's billing practices for a product they no longer owned. Id. Here, Plaintiffs still 27 own the relevant products for which Apple continues to impose its allegedly anticompetitive technological restrictions. 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) 11 - 12 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page18 of 24 1 technological restrictions on iTMS files and iPods was common to the Class and any injunctive relief 2 addressing this conduct would be uniform to the Class. 3 Nor are Plaintiffs required to demonstrate that they are the most effective Class 4 representatives from among those that have suffered loss. Def's Motion at 11. Because injunctive 5 relief does not pose the same threat of multiplicity of suits or duplicative recoveries that a damages 6 claim does, the Court need not consider those dangers in making its determination that Plaintiffs are 7 entitled to injunctive relief. See Cargill, 479 U.S. at 111 n.6 ("because standing under §16 raises no 8 threat of multiple suits or duplicative recoveries, some of the factors other than antitrust injury that 9 are appropriate to a determination of standing under §4 are not relevant under §16"). 10 11 Apple also makes the absurd argument that should Plaintiffs succeed in demonstrating that 12 Apple's conduct is anticompetitive, Apple should not be required to cease acting anticompetitively 13 because it would be too expensive. See Def's Motion at 13. Apple suggests that even if it is found 14 to be acting in violation of federal antitrust laws, Plaintiffs and Class members should continue to 15 incur the cost of its illegal conduct. 16 Citing Abeyta v. Taos, 499 F.2d 323, 328 (10th Cir. 1974), Apple argues that the benefit 17 injunctive relief may provide to Class members that requires Apple to provide free upgrades is 18 outweighed by the cost to Apple. Def's Motion at 13. First, this misstates the relief sought. As 19 discussed above, Plaintiffs do not seek "free" upgrades ­ they seek removal of FairPlay from their 20 video files and previously purchased music files. Plaintiffs also seek to enjoin Apple from imposing 21 similar restrictions in the future and from issuing software updates designed to restrict consumer 22 choice in portable digital media players and foreclose competition. Class Cert. Motion at 10. The 23 fact that Apple currently charges purchasers an additional fee to obtain files free from Apple's 24 anticompetitive conduct more clearly demonstrates the need for relief and certainly does not support 25 allowing Apple to continue its illegal conduct. 26 Additionally, Abeyta is distinguishable. In Abeyta, Plaintiff, a former police officer, filed suit 27 against the city seeking reinstatement and back wages. Abeyta, 499 F.2d at 325. After being 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) D. Any Cost Imposed by Removal of Apple's Anticompetitive Conduct is Outweighed by the Benefit to the Class - 13 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page19 of 24 1 discharged by the police chief, Plaintiff appealed, the town council held a hearing and subsequently 2 voted in favor of termination. Id. Plaintiff contended that the hearing did not afford him due process 3 because the voting process was improperly conducted. Id. at 328. In affirming the trial court's 4 holding that, even though the vote was procedurally improper, equitable relief was still 5 inappropriate, the court held that equitable relief in the form of reinstatement and back wages would 6 impose a significant burden on the city "whose actions were in good faith." Id. 7 The same is not true here. If Plaintiffs succeed on the merits in demonstrating that Apple 8 acted anticompetitively, it cannot also be said that Apple acted in good faith. In contrast to the city's 9 unintentional procedural mistake, Plaintiffs allege that Apple's conduct is intentional and is designed 10 to restrict consumer choice in portable digital media players, foreclose competition, and obtain and 11 maintain monopoly power. Thus, any burden of imposing equitable relief would squarely fall on 12 Apple, not customers who have already paid Apple for their downloads. 13 Apple also contends that even if Plaintiffs can demonstrate at this stage that the injunctive 14 relief is appropriate, which they have, Plaintiffs are still required to demonstrate the injunctive relief 15 would have an effect on the price of iPods. Def's Motion at 13-14. Apple argues that Plaintiffs 16 cannot do this because they have not proposed a method susceptible to common proof. Id. This is 17 an incorrect statement of the law. Under Section 16 of the Clayton Act, Plaintiffs are only required 18 to demonstrate injury as a result of Apple's antitrust violation. See 15 U.S.C. §26 ("Any 19 person . . . shall be entitled to sue for and have injunctive relief . . . against threatened loss or damage 20 by a violation of the antitrust laws . . . ."). If Plaintiffs are able to prove their choice in portable 21 digital media players was restricted because of Apple's use of FairPlay on iTMS files, they will be 22 entitled to injunctive relief. Moreover, at the class certification stage, Plaintiffs have demonstrated 23 through their expert that methods common to the Class can be used to demonstrate injury on a 24 classwide basis.12 See Class Cert. Sweeney Decl., Ex. 1 at 34-47. 25 26 12 See Declaration of for Class 27 and Appointment of ClassBonny E. Sweeney in Support of Plaintiffs' MotionDecl."). Certification Counsel, (Dkt. No. 166), ("Class Cert. Sweeney 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) - 14 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page20 of 24 1 Moreover, if Apple genuinely believed a common method was not available to demonstrate 2 injury to the Class, it should have raised it in its opposition to Plaintiffs' motion for class 3 certification. See L.R. 7-9(c). To the extent Apple previously raised this argument, the Court 4 considered it and rejected it. Apple presents no new facts or law and thus, presentation of this 5 argument here is entirely improper. 6 7 E. The Certified Class Properly Includes iTMS Video Purchasers The injunctive relief Class appropriately includes purchasers of iTMS video files. As 8 discussed above and as alleged in the Complaint, all video files purchased on iTMS are encrypted 9 with the same FairPlay restriction. CC, ¶24. This conduct is generally applicable across the Class 10 and thus, injunctive relief is particularly appropriate. See Rodriguez, 2009 WL 2526622, at *13 11 (requirements of 23(b)(2) met where Plaintiffs complain of a pattern or practice that is generally 12 applicable to the class as a whole). Indeed, the very practice complained of with regard to iTMS 13 music files, application of FairPlay restrictions, is the same practice complained of with regard to 14 iTMS video files. CC, ¶24. Any injunctive relief would be uniformly applied to any Class member 15 who purchased video files. It is not necessary that all Class members would be entitled to this relief. 16 Rodriguez, 2009 WL 2526622, at *13. 17 V. 18 CONCLUSION For the reasons stated above, Defendant's Motion for Reconsideration of Rule 23(b)(2) Class 19 should be denied. 20 DATED: September 14, 2009 21 22 23 24 25 26 27 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK s/ Thomas R. Merrick THOMAS R. MERRICK 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) - 15 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Additional Counsel for Plaintiffs 23 24 25 26 27 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION OF RULE 23(B)(2) CLASS - C-05-00037-JW(RS) S:\CasesSD\Apple Tying\BRF00061719.doc 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 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) - 16 - Case5:05-cv-00037-JW Document253 Filed09/14/09 Page22 of 24 1 2 CERTIFICATE OF SERVICE I hereby certify that on September 14, 2009, I electronically filed the foregoing with the 3 Clerk 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 September 14, 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 Document253 Page 1 of 2 Filed09/14/09 Page23 of 24 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. z Francis Joseph Balint , Jr fbalint@bffb.com Michael D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com Andrew S. Friedman rcreech@bffb.com,afriedman@bffb.com Alreen Haeggquist alreenh@zhlaw.com,judyj@zhlaw.com Roy A. Katriel rak@katriellaw.com,rk618@aol.com Thomas J. Kennedy tkennedy@murrayfrank.com David Craig Kiernan dkiernan@jonesday.com,lwong@jonesday.com,valdajani@jonesday.com Thomas Robert Merrick tmerrick@csgrr.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@murrayfrank.com Jacqueline Sailer jsailer@murrayfrank.com Adam Richard Sand , Esq invalidaddress@invalidaddress.com Michael Tedder Scott z z z z z z z z z z z z z z https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?476553517055133-L_170_0-1 9/14/2009 CAND-ECFCase5:05-cv-00037-JW Document253 michaelscott@jonesday.com,gwayte@jonesday.com z Page 2 of 2 Filed09/14/09 Page24 of 24 Craig Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com John J. Stoia , Jr jstoia@csgrr.com Tracy Strong invalidaddress@invalidaddress.com Bonny E. Sweeney bonnys@csgrr.com,E_file_sd@csgrr.com,christinas@csgrr.com Helen I. Zeldes helenz@zhlaw.com z z z z 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?476553517055133-L_170_0-1 9/14/2009