"The Apple iPod iTunes Anti-Trust Litigation"

Filing 575

OPPOSITION to 572 Objection, to plaintiffs' evidence filed in support of reply in support of plaintiff's renewed motion for class certification by Melanie Tucker. (Bernay, Alexandra) (Filed on 4/11/2011) Modified on 4/12/2011 (cv, COURT STAFF).

1 ROBBINS GELLER RUDMAN & DOWD LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) ALEXANDRA S. BERNAY (211068) 4 CARMEN A. MEDICI (248417) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) johns@rgrdlaw.com 7 bonnys@rgrdlaw.com tmerrick@rgrdlaw.com 8 xanb@rgrdlaw.com cmedici@rgrdlaw.com 9 THE KATRIEL LAW FIRM 10 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 11 Washington, DC 20007 Telephone: 202/625-4342 12 202/330-5593 (fax) rak@katriellaw.com 13 Co-Lead Counsel for Plaintiffs 14 [Additional counsel appear on signature page.] 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN JOSE DIVISION 18 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(HRL) 19 LITIGATION ) ) CLASS ACTION 20 ) ) PLAINTIFFS’ OPPOSITION TO APPLE’S This Document Relates To: 21 ) OBJECTIONS TO PLAINTIFFS’ ) EVIDENCE FILED IN SUPPORT OF ALL ACTIONS. 22 ) REPLY IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR CLASS 23 CERTIFICATION 24 JUDGE: DATE: TIME: CTRM: 25 26 27 28 617226_1 Hon. James Ware April 18, 2011 9:00 a.m. 8, 4th Floor 1 I. INTRODUCTION 2 Defendant Apple’s Objections to Plaintiffs’ Evidence Filed in Support of Reply in Support of 3 Plaintiffs’ Renewed Motion for Class Certification (“Objections”) is an improper attempt to strike 4 relevant, admissible evidence. The Objections fail for several reasons. First, the Objections wrongly 5 claim the Reply Declaration of Professor Roger G. Noll (“Noll Reply Declaration”), submitted in 6 support of renewed class certification, is not based on personal knowledge, contains new information 7 and “lacks foundation and any indicia of reliability,” among other supposed failings. Objections, ¶3. 8 This is nonsense. The Noll Reply Declaration plainly states the material is based on Professor Noll’s 9 personal knowledge and describes, in painstaking detail, how the preliminary regression analysis 10 was performed. Critically, an expert need not rely solely on matters within his or her personal 11 knowledge in forming opinions. Fed. R. Evid. 702. Moreover, the only reason the preliminary 12 regression was not provided in Professor Noll’s opening report is that Apple refused to provide the 13 data necessary to run even the preliminary regression until after Professor Noll’s opening report was 14 submitted. As Apple has insisted on deposing Professor Noll for a third time on April 7, 2011, and 15 in fact did so, these arguments carry even less weight. Second, Apple makes a number of challenges 16 to the Declaration of Alexandra S. Bernay in Support of Reply Memorandum in Support of 17 Plaintiffs’ Renewed Motion for Class Certification (“Bernay Declaration”). These challenges are 18 meritless. The vast majority of the Bernay Declaration is based on the declarant’s personal 19 knowledge and any other interpretation does not comport with reality. 20 II. PROFESSOR NOLL’S DECLARATION IS PROPERLY BEFORE THE COURT 21 Apple makes a number of strained arguments in its Objections to the Noll Reply Declaration. 22 Apple argues the results of Professor Noll’s preliminary regression analyses do not purport to be 23 based on personal knowledge, that the material in the Noll Reply Declaration is “new material,” that 24 the preliminary regression analysis “lacks foundation and the indicia of reliability” and that Apple 25 finds Professor Noll’s results “conclusory and cryptic.” Objections, ¶¶2-4. Apparently Apple hopes 26 if it throws enough mud, some will stick, but each of the Objections are improper. 27 28 617226_1 PLTFS’ OPPO TO APPLE’S OBJECTIONS TO PLTFS’ EVIDENCE FILED ISO REPLY ISO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION - C-05-00037-JW(HRL) -1- 1 Professor Noll’s Reply Declaration makes clear that the opinions expressed in the declaration 2 are his. He swears that the material in the report is true to the best of his knowledge and explains 3 throughout the Noll Reply Declaration the work that he did, including a detailed explanation of the 4 preliminary regression that was run. See, e.g., Noll Reply Declaration at 1-2 (summarizing work 5 done), id. at 34-40 (describing preliminary regression). There is simply no basis to claim the Noll 6 Reply Declaration or any part of it, including the preliminary regression, is not based on personal 7 knowledge. Moreover, an expert may rely on data that is not within his personal knowledge when 8 forming his opinion. See Fed. R. Evid. 702; IMA N. Am., Inc. v. Maryln Nutraceuticals, Inc., No. 9 CV-06-344-PHX-LOA, 2008 U.S. Dist. LEXIS 109623, at *16 (D. Ariz. Oct. 17, 2008).1 An expert 10 may plainly “rely on the opinions of non-testifying experts as a foundation for the opinions within 11 the testifying expert’s field of expertise.” Villagomes v. Lab Corp. of Am., No. 2:08-cv-00387-RLH12 GWF, 2010 U.S. Dist. LEXIS 124185, at *12 (D. Nev. Nov. 8, 2010). Apple next claims that “new material” in the Noll Reply Declaration must be stricken. This 13 14 is not the case. Objections, ¶2. First, any new material in the Noll Reply Declaration is included in 15 the reply only because Apple refused to turn over the data necessary to run Professor Noll’s 16 preliminary regression analysis until after Professor Noll’s Initial Declaration was submitted or is 17 directly in response to material raised by Apple’s expert, Dr. Michelle Burtis in her report. Apple 18 should not be rewarded for their discovery shenanigans, some of which are currently the subject of a 19 motion to compel pending before Magistrate Judge Howard R. Lloyd. In fact, not only did Apple 20 refuse to turn over the data necessary to run a preliminary regression until after the deadline for 21 Professor Noll to file his Initial Declaration, it further refused to produce requested, necessary data 22 until April 1, 2011, days after Plaintiffs’ reply to class certification was due and Professor Noll’s 23 Reply Declaration was submitted. The data was produced only after Plaintiffs filed a motion to 24 compel. 25 26 1 Apple’s case citation is, unsurprisingly, not about expert testimony at all. Pacheco v. Homecomings Fin., LLC, No. C 08-3002 JF(HRL), 2010 WL 2629887, at *3-*6 (N.D. Cal. June 29, 27 2010) deals explicitly with lay testimony. 28 617226_1 PLTFS’ OPPO TO APPLE’S OBJECTIONS TO PLTFS’ EVIDENCE FILED ISO REPLY ISO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION - C-05-00037-JW(HRL) -2- 1 Apple also claims Professor Noll’s Reply Declaration “lacks foundation and any indicia of 2 reliability.” Objections, ¶3. Nonsense. The Noll Reply Declaration, like the other declarations 3 submitted by Professor Noll in this case, provides a detailed and highly descriptive basis for each 4 opinion offered. The materials considered, the methods used and Professor Noll’s analyses are 5 spelled out in exacting and painstaking detail.2 6 Finally, Apple claims the Noll Reply Declaration describes the preliminary regression 7 analysis in “conclusory and cryptic terms.” Objections, ¶4. Plaintiffs have provided Apple all of the 8 underlying data Professor Noll relied on as well as detailed descriptions of the formulas and all 9 variables used in the preliminary regression analysis. In fact, Plaintiffs have provided Apple the full 10 data set used in the regression, two SAS scripts used in forming the regression and all the output files 11 describing in detail the results. Additional explanatory data was also turned over. This full 12 disclosure enables Apple to replicate Professor Noll’s results. Apple has all of this information and 13 deposed Professor Noll for a third time in this case on April 7, 2011. Apple has had ample 14 opportunity to clarify Professor Noll’s purportedly “cryptic” analysis.3 15 None of Apple’s scattershot objections should be sustained. The Noll Reply Declaration and 16 associated exhibits are properly before the Court. 17 III. THE BERNAY DECLARATION IS PROPERLY BEFORE THE COURT 18 Apple also objects to a number of paragraphs in the Bernay Declaration. The Objections are 19 plainly misplaced. First, simple reference to the Bernay Declaration reveals that despite Apple’s 20 claim, the vast majority of the paragraphs in the Bernay Declaration are based on the first-hand 21 knowledge of the declarant. See Bernay Decl., ¶¶1-5, 12-28. Moreover, a number of the paragraphs 22 objected to by Apple simply list the counts of documents produced in discovery. Bernay Decl., ¶¶7, 23 8, 9, 11, 14, 16. These paragraphs too are based on the declarant’s review of the document 24 25 2 Notably, Apple never previously moved to strike Professor Noll’s earlier declarations on any grounds. 26 3 Apple 27 on January 18,never bothered to depose Professor Noll after his opening declaration was submitted 2011. 28 617226_1 PLTFS’ OPPO TO APPLE’S OBJECTIONS TO PLTFS’ EVIDENCE FILED ISO REPLY ISO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION - C-05-00037-JW(HRL) -3- 1 production log and are properly before the Court. Apple also complains that copies of quoted 2 documents are not included. As Apple well knows, it has been the uniform practice in this litigation 3 not to submit correspondence between counsel in declarations.4 All correspondence cited in the 4 Bernay Declaration are attached to the Declaration of Alexandra S. Bernay in Support of Plaintiffs’ 5 Opposition to Apple’s Objections to Plaintiffs’ Evidence Filed in Support of Reply in Support of 6 Plaintiffs’ Renewed Motion for Class Certification, filed concurrently, to assuage Apple’s claimed 7 concerns. Additionally, Plaintiffs here submit the Declaration of Ms. Paula Roach which should lay 8 to rest Apple’s other objections to the Bernay Declaration. 9 DATED: April 11, 2011 Respectfully submitted, ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY CARMEN A. MEDICI 10 11 12 13 14 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 15 16 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) 17 18 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) 19 20 21 22 Co-Lead Counsel for Plaintiffs 23 24 25 26 4 In fact, Magistrate Lloyd’s rules specifically discourage counsel from submitting counsel’s discovery correspondence. U.S.D.C., Northern District of California, Magistrate Judge Howard R. 27 Lloyd Standing Order Re: Initial Case Management and Discovery Disputes, ¶6. 28 617226_1 PLTFS’ OPPO TO APPLE’S OBJECTIONS TO PLTFS’ EVIDENCE FILED ISO REPLY ISO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION - C-05-00037-JW(HRL) -4- 1 2 3 4 5 6 7 8 9 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 10680 West Pico Blvd., Suite 280 Los Angeles, CA 90064 Telephone: 310/836-6000 310/836-6010 (fax) 10 11 12 13 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) 14 17 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) 18 Additional Counsel for Plaintiffs 15 16 19 20 21 22 23 24 25 26 27 28 617226_1 PLTFS’ OPPO TO APPLE’S OBJECTIONS TO PLTFS’ EVIDENCE FILED ISO REPLY ISO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION - C-05-00037-JW(HRL) -5- 1 2 CERTIFICATE OF SERVICE I hereby certify that on April 11, 2011, I authorized the electronic filing of the foregoing with 3 the Clerk of the Court using the CM/ECF system which will send notification of such filing to the 4 e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I 5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF 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 April 11, 2011. 9 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 10 13 ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) 14 E-mail: 11 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 617226_1 xanb@rgrdlaw.com CAND-ECF- Page 1 of 2 Mailing Information for a Case 5:05-cv-00037-JW Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Francis Joseph Balint , Jr fbalint@bffb.com Alexandra Senya Bernay xanb@rgrdlaw.com Michael D Braun service@braunlawgroup.com Michael D. Braun service@braunlawgroup.com,clc@braunlawgroup.com Todd David Carpenter tcarpenter@bffb.com,pjohnson@bffb.com,rcreech@bffb.com Andrew S. Friedman khonecker@bffb.com,rcreech@bffb.com,afriedman@bffb.com Alreen Haeggquist alreenh@zhlaw.com,judyj@zhlaw.com Roy Arie Katriel rak@katriellaw.com,rk618@aol.com Thomas J. Kennedy tkennedy@murrayfrank.com David Craig Kiernan dkiernan@jonesday.com,lwong@jonesday.com Carmen Anthony Medici cmedici@rgrdlaw.com,slandry@rgrdlaw.com Thomas Robert Merrick tmerrick@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.com Caroline Nason Mitchell cnmitchell@jonesday.com,mlandsborough@jonesday.com,ewallace@jonesday.com https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?910143488907422-L_366... 4/11/2011 CAND-ECF- Page 2 of 2 Robert Allan Mittelstaedt ramittelstaedt@jonesday.com,mlandsborough@jonesday.com Brian P Murray bmurray@murrayfrank.com George A. Riley griley@omm.com,lperez@omm.com,cchiu@omm.com Elaine A. Ryan eryan@bffb.com,pjohnson@bffb.com Jacqueline Sailer jsailer@murrayfrank.com Michael Tedder Scott michaelscott@jonesday.com,amhoward@jonesday.com Craig Ellsworth Stewart cestewart@jonesday.com,mlandsborough@jonesday.com John J. Stoia , Jr jstoia@rgrdlaw.com Bonny E. Sweeney bonnys@rgrdlaw.com,christinas@rgrdlaw.com,E_file_sd@rgrdlaw.com Helen I. Zeldes helenz@zhlaw.com 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. (No manual recipients) https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?910143488907422-L_366... 4/11/2011