1 6 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 7 Attorneys for Defendant 8 APPLE INC. 2 3 4 5 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION Lead Case No. C 05-00037 JW [CLASS ACTION] 14 15 ___________________________________ 16 This Document Relates To: ALL ACTIONS ADMINISTRATIVE MOTION PURSUANT TO CIVIL LOCAL RULE 7-11 REGARDING SEVEN MOTIONS RENOTICED BY PLAINTIFFS 17 DATE: No hearing 18 DEPT. 9 19 20 21 22 23 Pursuant to Civil Local Rule 7-11, Apple files this motion to simplify this Court’s consideration of the class certification motion. The specific relief sought is set forth on page 3. On October 13, pursuant to this Court’s “Order Requiring Parties to Renotice Pending 24 Motions” (Doc. 680), Plaintiffs moved to renotice their January 18, 2011 motion for class 25 certification and six related motions, and to set them all for hearing on November 28, 2011. 26 Plaintiffs also listed 32 other pleadings (including motions to strike, declarations, objections and 27 oppositions to objections) relevant to their renoticed motions. 28 The seven renoticed motions, and most of the 32 other pleadings, are out-of-date given SFI-714040v3 C 05-00037 JW Admin Mtn re Renoticed Mtns 1 this Court’s subsequent rulings. The January class certification motion predates this Court’s June 2 ruling on summary judgment which dismissed all but one claim. See Doc. 627. For that reason, 3 the January class certification motion was based principally on the claim that iTunes 4.7 was 4 anticompetitive and sought a class that Plaintiffs no longer seek to represent. See Doc. 477, pp. 1 5 (definition of class), 8-10 (discussion of 4.7). Plaintiffs’ opening and reply expert declarations 6 also focused on iTunes 4.7. See Docs. 488, 551. Neither the motion nor the expert declarations 7 mentioned the September 2006 iTunes 7.0 update, which is the subject of the only claim 8 remaining in the case. Nor do the six other renoticed motions pertain to iTunes 7.0. Instead, they 9 object to or seek to exclude expert declarations that deal with iTunes 4.7 and that are superseded 10 by the expert reports filed by Plaintiffs since the May summary judgment ruling and the expert 11 report that Apple will file on November 14, as ordered by the Court. See Doc. 672. 12 Thus, all seven motions that Plaintiffs now seek to renotice pertain to claims no longer in 13 this case. The same is true of most of the 32 other pleadings referenced by Plaintiffs. They do 14 not mention, much less focus on, whether a class can be certified for the remaining iTunes 7.0 15 claim. 16 In short, the record that Plaintiffs have “renoticed” is both over- and under-inclusive. 17 Over-inclusive, because it focuses on claims that have been dismissed, a class that Plaintiffs no 18 longer seek to represent, and superseded expert reports. Under-inclusive, because none of the 19 briefing addresses whether Plaintiffs’ expert report filed last month is a sufficient basis for 20 certifying any part of the class requested by Plaintiffs. And, of course, none of the briefing 21 addresses Apple’s upcoming supplemental expert report. 22 For these reasons, it is inefficient for Plaintiffs to ask the Court to sift through all of those 23 largely outdated pleadings, extracting whatever arguments might still be relevant from the 24 inoperative ones and determining which motions have been mooted. Instead of renoticing this 25 record in bulk, Apple suggests two options that will simplify and expedite resolution of the 26 certification motion: 27 28 1) Plaintiffs should promptly file a revised motion to certify the class they now seek to represent, based on their expert’s new declaration. Apple will file an opposition brief on SFI-714040v3 -2- C 05-00037 JW Admin Mtn re Renoticed Mtns 1 November 14, the same date that its expert’s supplemental report is due. Plaintiffs will 2 reply on November 21. The motion will then be ready for hearing on December 5 – only 3 a week later than the renoticed date picked by Plaintiffs – or as soon thereafter as the 4 Court’s calendar permit. 5 2) Or, on November 21, one week after Apple’s new expert report is due, the parties can file 6 simultaneous briefs, limited to 10-15 pages, addressing how the new expert reports 7 ordered by the Court affect the class certification motion. Plaintiffs should also be 8 required to show why the six other motions they ask to renotice are not moot. 9 In Apple’s view, the first option is preferable. It will avoid the need for the parties and the 10 Court to wade through the 39 pleadings to determine what, if anything, is still operative and still 11 needs to be decided. In this important respect, the first option will expedite the Court’s 12 consideration of class certification. The second option will also help to some extent focus on the 13 matters that are truly in dispute but still will require consideration of the under- and over- 14 inclusive pleadings that Plaintiffs seek to renotice. That is why Apple believes that the first 15 option is most efficient. 16 Finally, Apple requests that the Court hold an evidentiary hearing and hear first-hand the 17 experts offered by both sides, as it did in the companion Somers case. See Somers Doc. 80 18 (finding after evidentiary hearing that Dr. Burtis’ testimony was “far more persuasive” than 19 Plaintiff’s expert and “highlight[ed] the Court’s reservations about the adequacy of Plaintiffs’ 20 proposed method of determining class damages”). Given the serious defects in Professor Noll’s 21 previous declaration (as outlined in Apple’s supplemental briefs, Docs. 633 and 663) and in his 22 September supplemental report (which has not been the subject of briefing), Apple submits that 23 an evidentiary hearing will be useful in demonstrating the inadequacy of Plaintiffs’ proposed 24 methodology. An evidentiary hearing will enable the Court to conduct the “rigorous analysis” of 25 whether Plaintiffs have met their burden under Rule 23, including expert testimony and 26 regression analyses. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). 27 A proposed form of order is submitted herewith. 28 SFI-714040v3 -3- C 05-00037 JW Admin Mtn re Renoticed Mtns 1 Dated: October 14, 2011 2 Respectfully submitted, Jones Day 3 4 By: /s/ Robert A. Mittelstaedt Robert A. Mittelstaedt 5 Counsel for Defendant 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SFI-714040v3 -4- C 05-00037 JW Admin Mtn re Renoticed Mtns