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 FRANCISCO DIVISION 18 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW 19 LITIGATION ) ) CLASS ACTION 20 ) ) PLAINTIFFS’ OPPOSITION TO APPLE’S This Document Relates To: 21 ) ADMINISTRATIVE MOTION PURSUANT ) TO CIVIL LOCAL RULE 7-11 ALL ACTIONS. 22 ) REGARDING SEVEN MOTIONS RENOTICED BY PLAINTIFFS 23 JUDGE: Hon. Chief Judge James Ware 24 DATE: N/A TIME: N/A 25 CTRM: 9, 19th Floor 26 27 28 659263_1 1 Apple’s October 14, 2011 Motion must be denied. 2 Far from “simplify[ing]” the Court’s consideration of the class certification motion, as Apple 3 claims, the proposed “relief” adds another round of needless briefing as well as a proposed 4 evidentiary hearing, neither of which are necessary to the Court’s consideration of class certification 5 in this matter. Dkt. No. 687 (Administrative Motion Pursuant to Civil Local Rule 7-11 Regarding 6 Seven Motions Renoticed by Plaintiffs) at 1. Because the Court has an ample, indeed voluminous, 7 record upon which to base its class-certification decision, Plaintiffs respectfully request the Court 8 deny Apple’s motion and instead grant Plaintiffs’ October 13, 2011 motion re-noticing class 9 certification-related motions as was called for by the Court’s September 27, 2011 Order. Dkt. No. 10 680 (Order Requiring Parties to Renotice Pending Motions). 11 Apple’s arguments for burdening the Court and the parties with yet another round of briefing 12 and an evidentiary hearing are unpersuasive and serve only to advance Apple’s agenda which is to 13 delay a decision on class certification for as long as possible. Neither the Court nor the parties will 14 benefit from this wasteful exercise. 15 As the Court is aware, the parties have submitted numerous briefs and expert reports related 16 to class certification.1 And despite Apple’s contentions that nothing related to iTunes 7.0 is before 17 the Court, the Court has before it substantial and detailed declarations as well as extensive briefing 18 from both sides specifically addressing Plaintiffs’ remaining claims related to iTunes 7.0. In fact, in 19 response to the Court’s June 27, 2011 Order, Plaintiffs filed a Supplemental Declaration by 20 Plaintiffs’ Expert, Roger Noll, stating that Professor Noll can show antitrust impact and a 21 methodology for measuring damages in accordance with the Court’s May 19, 2011 Order limiting 22 Plaintiffs’ claims to iTunes 7.0.2 Apple then filed a detailed, substantive response to this Declaration 23 on July 22, 2011. Dkt No. 663 (Apple’s Response to Professor Noll’s July 18 Declaration). In 24 1 On 25 certificationOctober 13, 2011, Plaintiffs filed a Notice re-noticing motions related to class based on the Court’s September 27, 2011 Order. In that Notice, Plaintiffs re-noticed seven motions and then listed, for the Court’s convenience, all pending filings related to class 26 certification. 27 2 See Dkt. No. 660 (Supplemental Declaration of Roger G. Noll (Redacted)). 28 659263_1 PLTFS’ OPP. TO APPLE’S ADMIN MTN PURSUANT TO LOCAL RULE 7-11 RE SEVEN MTNS RENOTICED BY PLAINTIFFS - C-05-00037-JW -1- 1 addition to Apple’s response to Professor Noll’s iTunes 7.0 declaration, Apple also filed a 2 Supplemental Report from its expert, Dr. Michelle M. Burtis, dated July 22, 2011, which also 3 addresses iTunes 7.0. Dkt. No. 665 (Supplemental Report of Dr. Michelle M. Burtis). 4 Both parties then submitted yet more supplemental briefing – at Apple’s urging – regarding 5 the impact, if any, on the proposed class following the United States Supreme Court’s decision in 6 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 180 L. Ed 2d 374 (2011). Those briefs too dealt 7 exclusively with issues related to the propriety of certification of a class limited to claims related to 8 iTunes. 7.0.3 9 Additionally, the Court has before it Professor Noll’s Second Supplemental Declaration on 10 Class Certification, filed on September 23, 2011. Dkt No. 679. This latest declaration further details 11 Plaintiffs’ ability to show impact and damages on a class-wide basis as to both resellers and those 12 who purchased from Apple stores or online portals. And, like the July 18, 2011 Declaration, the 13 Second Supplemental Declaration deals only with the remaining claims in this case, i.e., iTunes 7.0. 14 Apple is scheduled to file a response on November 14, 2011 and Plaintiffs assume that Apple will 15 make arguments similar to those it has in the past, namely, that in its view, no class can ever be 16 certified in this matter. The last thing this case needs is yet another round of briefing. Apple’s claim that the pleadings are stale or “largely outdated” is untrue. Dkt. No. 687 at 2. 17 18 The basic legal framework supporting certification in this class remains the same.4 When the 19 contours of the case changed following the Court’s summary judgment ruling, the parties were both 20 afforded ample opportunities to discuss the impact of those changes both via expert reports and 21 briefing. Plaintiffs have demonstrated, repeatedly, that certification is proper here and have provided 22 detailed and extensive materials to back up that assertion. Apple’s latest tactic serves only to delay. 23 24 3 Dkt. No. 644 (Plaintiffs’ Response to the Court’s June 22, 2011 Order Requiring Further Supplemental Briefing); Dkt. No. 646 (Apple’s Further Supplemental Brief Re Class Certification). 25 4 In fact, the basic legal framework has not changed since the 26 Court originally granted class certification supporting class certification principles apply to the case in this matter. The same legal it did on when the Court certified classes for Plaintiffs’ 27 now as 2 claims. December 22, 2008,common evidenceoriginally used to prove Plaintiffs’ claims. Section Then, the Court held would be 28 See Dkt. No. 196 (Order Granting Plaintiffs’ Motion for Class Certification). The Court specifically 659263_1 PLTFS’ OPP. TO APPLE’S ADMIN MTN PURSUANT TO LOCAL RULE 7-11 RE SEVEN MTNS RENOTICED BY PLAINTIFFS - C-05-00037-JW -2- 1 Adding to the problems with Apple’s motion, the proposed schedule is unreasonable and 2 extremely biased. Under Apple’s “first option” Apple proposes Plaintiffs file an entirely new 3 certification motion by October 24, 2011. Dkt. No. 687 at 2-3. That is a mere four days after the 4 instant brief is due. Should the Court agree to Apple’s wasteful and unnecessary additional briefing 5 and evidentiary hearing, Plaintiffs request the parties meet and confer to come up with a workable 6 schedule.5 7 DATED: October 20, 2011 Respectfully submitted, 8 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY CARMEN A. MEDICI 9 10 11 12 13 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 14 15 found Plaintiffs’ claims were subject to common proof (id. at 8) and found the predominance requirement satisfied by the “numerous common questions of law and fact involving [Apple]’s 16 allegedly anticompetitive conduct.” Id. at 12. Finally, the Court held that a class action was “the superior method to adjudicate Plaintiffs’ claims.” Id. After the Court dismissed Plaintiffs’ tying 17 claims, it decertified the class. The Court made clear, however, in its decertification order (Dkt. No. 303) that it was not decertifying the classes on the grounds raised by Apple in its motion to decertify: 18 [T]his decertification is not dependent on the grounds raised by Defendant in its Motion to decertify, namely, that Plaintiffs’ expert, Dr. Roger G. Noll’s, report 19 provides an inadequate method for proving common impact on the class to meet the predominance requirement of Rule 23(b)(3). The Court rejects Defendant’s 20 contention and decertifies the Rule 23(b)(3) without prejudice and only in order to ensure that a proper class would be defined in light of this Order. 21 22 Dkt. No. 303 at 2 n.6. 5 Apple’s proposed Order also seeks to file, by October 20, 2011, brief 23 demonstrating why the motions they re-noticedhave Plaintiffs Court’s September 27, 2011aOrder following the they should be 24 “are not moot and whyRe-notice Classre-noticed.” Dkt. No. 687-1 ((Proposed) Order Regarding Plaintiffs’ Request to Certification and Other Motions). This proposed brief, referenced nowhere in Apple’s motion, is nonsensical and, as demonstrated by the declaration filed 25 by Apple’s counsel, was not proposed to Plaintiffs in advance of Apple’s filing. See Dkt. No. 688 Kiernan in Support 26 (Declaration of DavidPlaintiffs). Plaintiffs’ of Apple’s Administrative Motion Regarding Seven Motions Renoticed by response to the instant motion is due October 20, 2011. By this proposal Apple seeks to force Plaintiffs to file another brief on the same day as the response 27 to the instant brief is due. This is insupportable and patently unfair. 28 659263_1 PLTFS’ OPP. TO APPLE’S ADMIN MTN PURSUANT TO LOCAL RULE 7-11 RE SEVEN MTNS RENOTICED BY PLAINTIFFS - C-05-00037-JW -3- 1 2 3 4 5 6 655 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) 7 Co-Lead Counsel for Plaintiffs 8 9 10 11 12 13 14 15 16 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) 17 18 19 20 21 22 23 MURRAY FRANK LLP BRIAN P. MURRAY 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) 24 Additional Counsel for Plaintiffs 25 26 27 28 659263_1 PLTFS’ OPP. TO APPLE’S ADMIN MTN PURSUANT TO LOCAL RULE 7-11 RE SEVEN MTNS RENOTICED BY PLAINTIFFS - C-05-00037-JW -4- 1 2 CERTIFICATE OF SERVICE I hereby certify that on October 20, 2011, I authorized the electronic filing of the foregoing 3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to 4 the 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 October 20, 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 659263_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,winkyc@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 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 https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?721459711468232-L_366_0-1 10/20/2011 CAND-ECF- Page 2 of 2 eryan@bffb.com,nserden@bffb.com Jacqueline Sailer jsailer@murrayfrank.com Michael Tedder Scott invalidaddress@invalidaddress.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?721459711468232-L_366_0-1 10/20/2011