"The Apple iPod iTunes Anti-Trust Litigation"

Filing 698

Brief [Joint Proposal Regarding Notice Plan] filed bySomtai Troy Charoensak, Mariana Rosen, Melanie Tucker. (Attachments: # 1 Proposed Order)(Bernay, Alexandra) (Filed on 1/9/2012)

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 Class Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW 15 LITIGATION ) ) CLASS ACTION 16 ) ) JOINT PROPOSAL REGARDING NOTICE This Document Relates To: 17 ) PLAN ) ALL ACTIONS. 18 ) 19 20 21 22 23 24 25 26 27 28 674909_2 1 I. INTRODUCTION 2 On November 22, 2011, the Court granted Plaintiffs’ motion for class certification and 3 directed that, on or before December 9, 2011, the parties file a proposed form of class notice and 4 joint proposal for dissemination of the notice for approval by the Court.1 5 Accordingly, the parties jointly propose the following process for dissemination of the class 6 notice. 7 II. ADMINISTRATOR 8 To facilitate the notice process, Plaintiffs have retained Rust Consulting, Inc. 9 (“Administrator”), an experienced and highly qualified notice administrator, to assist and provide 10 professional guidance in the implementation of the notice program. 11 III. FORM OF NOTICE 12 The parties jointly submit:2 (1) a proposed summary notice for publication (“Summary 13 Notice”), attached as Exhibit 1; (2) a proposed Notice of Pendency of Class Action to be emailed to 14 those prospective Class Members for whom the parties have email addresses (“Notice”), attached as 15 Exhibit 2; and (3) a proposed long-form notice to be published on a website (“Long-Form Notice”), 16 attached as Exhibit 3.3 The notices define the Class and describe the nature of the action and the 17 binding effect of a later Class judgment on Class Members. In addition, the notices inform the Class 18 Members that, if they do not want to be a Class Member and wish to retain their right to pursue their 19 own independent action at their own expense and appear through their own counsel, they can request 20 to be excluded from the Class. They can do so by mailing a letter to the Administrator setting forth 21 their name and address and requesting exclusion. Any requests for exclusion from Class Members 22 23 1 26 3 The Court subsequently changed the due date to January 9, 2012, following the parties’ request for an extension. Dkt. No. 696. 24 2 references to “Exhibit” are to the exhibits 25 Bernay AllSupport of Joint Proposal Regarding Noticeattached to the Declaration of Alexandra S. in Plan, filed concurrently. The parties are working on securing a domain name, but have not yet reached an agreement on a website name. The parties expect to come to agreement shortly and will inform the Court of the 27 agreed-upon domain name. 28 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -1- 1 shall be postmarked via U.S. mail, no later than 75 days after the last day on which the Notice is to 2 be disseminated. 3 IV. TIMING OF DISSEMINATION OF NOTICE 4 Apple has proposed that dissemination of Notice be deferred until after the Ninth Circuit 5 rules on Apple’s Rule 23(f) petition for interlocutory review of this Court’s November 22, 2011 6 class-certification decision. Because the Ninth Circuit could reverse or modify the certification 7 decision, Apple believes that deferring the dissemination of notices “will avoid the possibility of the 8 Class receiving two conflicting Notices,” thereby serving the public interest by avoiding “the risk of 9 significantly confusing the class consumers.” In re Apple & ATTM Antitrust Litig., No. 5:07-cv10 05152-JW, slip. op. at 6 (N.D. Cal. Sept. 15, 2010), attached as Exhibit 4. As in ATTM, “neither 11 Plaintiffs nor the class will be significantly harmed by a short delay.” Id. Indeed, Class Members 12 may benefit by avoiding the confusion that conflicting notices would cause. 13 Plaintiffs do not object to the deferral. 14 V. PROPOSED NOTICE PROCESS 15 The parties propose that individual notice be disseminated to potential Class Members via 16 email and publication. 17 Apple maintains email addresses for customers who provided them when they purchased 18 iPods directly from Apple through its online and retail stores and when they registered their iPods 19 with Apple. Apple also maintains contact information for resellers who purchased iPods directly 20 from Apple during the Class Period. If the Court approves the Notice Plan, Apple will provide 21 approximately 4.9 million email addresses, plus additional contact information for the resellers, for 22 customers who purchased iPods directly from Apple during the Class Period. The email addresses 23 and other contact information will be designated as Confidential under the Protective Order 24 previously entered into in this case. Class Counsel will provide the email addresses and contact 25 information to the third-party Administrator, which it will use solely for the purposes of 26 disseminating the Notice. The Administrator has signed Attachment A to the Protective Order and 27 given its assurance that it will comply with the provisions of the Protective Order. Notice will be 28 disseminated to the Class within 30 days after the Court of Appeals’ denial of Apple’s 23(f) petition 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -2- 1 or affirmance of this Court’s November 22, 2011 class certification Order becomes final or after this 2 Court approves the notice form and plan, whichever is later. 3 In addition to the direct Notice detailed above, notice will also be disseminated through 4 publication. The Administrator shall cause to be published the Summary Notice in Entertainment 5 Weekly and Wired as a means of reaching prospective Class Members not receiving individual 6 Notice. 7 The Administrator shall establish a website, to make available to Class Members the 8 following information: (1) the Order granting class certification; (2) Plaintiffs’ Complaint; (3) 9 Defendant’s Answer; and (4) the Notice and Long-Form Notice and other such documents as the 10 parties may agree or the Court shall require. The Administrator shall also establish a toll-free telephone number for Class Members to call 11 12 if they have questions or to request copies of the Class notices or other documents. The 13 Administrator shall provide staff to answer the telephone, respond to ministerial matters such as 14 requests for copies of the notices and direct any substantive questions to Class Counsel. 15 VI. THE PROPOSED NOTICE PLAN AND FORM OF NOTICE MEETS THE REQUIREMENTS OF RULE 23 16 A. 17 18 The Proposed Class Notice Provides for the Best Notice Practicable Under the Circumstances Rule 23 requires the “best notice that is practicable under the circumstances.” Fed. R. Civ. P. 19 23(c)(2)(B). The notice should be “reasonably calculated, under all the circumstances, to apprise 20 interested parties of the pendency of the action and afford them an opportunity to present their 21 objections.” Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (quoting Mullane v. Central 22 Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652 (1950)). “There is no one ‘right way’ 23 to provide notice as contemplated under Rule 23(e).” In re Wireless Tel. Fed. Cost Recovery Fees 24 Litig., No. 4:03-MD-015, 2004 WL 3671053, at *8-*9 (W.D. Mo. Apr. 20, 2004) (citations omitted). 25 Notice plans are not expected to reach every class member; Rule 23 requires the best notice 26 ‘practicable,’ not perfect notice. Fed. R. Civ. P. 23(c)(2)(B). “Due process does not require actual 27 notice, but rather a good faith effort to provide actual notice.” In re Prudential Ins. Co. of Am. Sales 28 Practices Litig., 177 F.R.D. 216, 231 (D.N.J. 1997). As described in detail above, the proposed 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -3- 1 notice plan comprised of direct Notice supplemented by publication notice will reach a wide number 2 of Class Members. 3 B. Each Identified Class Member For Whom the Parties Have an Email Address Will be Sent Notice 4 The notice program provides that Apple will work with Class Counsel and the notice 5 Administrator to cause the Notice to be sent by email to each identifiable Class Member by sending 6 the Notice to the Class Member’s last known email address in the customer databases of Apple. The 7 Notice will consist of a summary of the Long-Form Notice and a link to an official website, where 8 the entire Long-Form Notice and other documents related to the case may be viewed and printed by 9 Class Members as detailed, above, in §A. The Notice has been designed to minimize the chances 10 that it could be blocked by spam filters. For example, the Notice will not include an attachment of 11 the Long-Form Notice because such notices are known to sometimes trigger spam filters. Instead, 12 the Notice will direct the recipient to the official website for complete information. The notice 13 program provides that in the event a Notice is returned to the sender because it could not be 14 delivered (“bounced back”), the parties may, if it is deemed useful, resend the Notice. 15 Similar programs for notice by email rather than regular first-class mail have been accepted 16 in other cases by courts throughout the country. See, e.g., In re Classmates.com Consol. Litig., No. 17 C 09-45 RAJ, slip. op. (W.D. Wash. Apr. 19, 2010) (Order attached hereto as Exhibit 5); Cho v. 18 Seagate Tech. (US) Holdings, Inc., No. CGC 06-453195, slip. op. (San Francisco Super. Ct. Mar. 1, 19 2010) (attached hereto as Exhibit 6); and Barker v. Skype, Inc., No. 2:09-cv-01364-RSM, slip. op. 20 (W.D. Wash. Nov. 17, 2009) (attached hereto as Exhibit 7).4 In the specific circumstances of this 21 case, because iPod users are likely heavy technology users, email is likely to be a more efficient 22 23 24 4 See also Browning v. Yahoo! Inc., No. C04-01463-HRL, WL 4105971, Cal. 25 Nov. 16, 2007) (citing Lundell v. Dell, Inc., No. C05-3970, 200620073507938, at *1 at *4 (N.D.Dec. WL (N.D. Cal. Browning v. Yahoo! Inc., No. C04-01463-HRL, 2006 26 5, 2006) (approving notice by e-mail);2006); see also Chavez v. Netflix, Inc., 162 Cal. App. 4thWL 3826714, at *8-*9 (N.D. Cal. Dec. 27, 43, 58 (2008); Farinella v. PayPal, Inc., 611 F. Supp. 2d 250, 256 (E.D.N.Y. 2009) (e-mail notice sent 27 to more than 2.2 million PayPal users). 28 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -4- 1 means of communicating with Class Members than regular first-class mail. As to Resellers, the 2 notice plan calls for email and mail notice to these Members of the Class. 3 C. 4 Apple has provided the contact information it has maintained for the resellers who purchased Resellers Will Receive Notice Via U.S. Mail and Email 5 iPods directly from Apple during the Class Period. This information includes physical mailing 6 addresses, and for most, email addresses of the contact at each Reseller. In order to ensure the best 7 practicable notice of the Reseller Members of the Class, notice to these entities will be via U.S. mail 8 and email. 9 D. Notice Will Also Be Provided Through Print Media As noted, the Administrator will cause the Summary Notice to published in Entertainment 10 11 Weekly and Wired as a means of reaching prospective Class Members not receiving Notice. 12 Entertainment Weekly is a weekly magazine and online periodical that covers all aspects of pop 13 culture and entertainment including movies, television, music, books and new media. The magazine 14 is “the leading consumer brand for entertainment and pop culture.” See 15 http://www.ew.com/ew/static/advertising/pdfs/EW_2011MedaiKit.pdf. It has won more than 100 16 photography, design and editorial awards, including the 2010 Ad Age Media Vanguard Award for 17 Best Magazine App with a Purpose as well the 2010 MIN Best of the Web Awards, the 2010 MIN 18 Integrated Marketing Awards, Multiple Magazine Title Program and the 2009 Folio Magazine 19 Awards for Consumer, Entertainment, Full Issue (6/27/2008). Id. 20 Wired is a monthly magazine and online periodical that covers “how ideas and innovation are 21 changing the world” and “the future of business, culture, innovation and science.” See 22 www.wired.com/services/press/center/about. “AdWeek named WIRED to its 2011 Hot List and 23 made WIRED its first-ever “Magazine of the Decade” in 2010. It was named to Advertising Age’s 24 A-List in 2010, received three National Magazine Awards for general excellence in 2005, 2007, and 25 2009, and was nominated for a National Magazine Award for Magazine of the Year in 2011.” It was 26 also “named 2009’s Best Magazine Website by AdWeek, Best News, Business & Finance Website 27 in 2009 by MPA Digital, and was a 2011 National Magazine Award for Digital Media ‘General 28 Excellence’ finalist.” Id. 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -5- 1 The Summary Notice will be published in Entertainment Weekly and Wired within 10 days 2 after completion of the emailing program described above. The Administrator will oversee 3 publication of the Summary Notice and will certify to the Court that publication occurred. 4 E. 5 An official website will feature copies of important case documents including the Long-Form Notice Will Be Posted on a Designated Website 6 Notice, the Notice, the Court’s Order granting class certification and other documents the parties 7 agree to post or that the Court requires be posted. The documents will be available for Class 8 Members to review and print. The website will be available until at least one-year after settlement or 9 conclusion of trial in this action. No material may be posted to the website without Apple and 10 Plaintiffs’ joint agreement. The website will also feature a toll-free number Class Members may call 11 if they have questions. 12 F. The Proposed Form of Class Notice Adequately Informs Class Members of Their Rights in This Litigation 13 Class notice must “clearly and concisely state in plain, easily understood language” the 14 nature of the action; the class definition; the class claims, issues, or defenses; that the class member 15 may appear through counsel; that the court will exclude from the class any member who requests 16 exclusion; the time and manner for requesting exclusion or for raising objections; and the binding 17 effect of a later class judgment on class members. See Fed. R. Civ. P. 23(c)(2)(B). As detailed 18 above, the email and Long-Form Notices proposed here comply with each of these requirements. 19 The parties respectfully request that the Court approve the proposed forms of notice, and 20 direct that Notice be disseminated as proposed. 21 DATED: January 9, 2012 Respectfully submitted, 22 23 24 25 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY CARMEN A. MEDICI 26 27 28 674909_2 s/ Alexandra S. Bernay ALEXANDRA S. BERNAY JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -6- 1 3 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) 4 Class Counsel for Plaintiffs 5 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) 2 6 7 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 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 310/201-9160 (fax) 24 Additional Counsel for Plaintiffs 25 26 27 28 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -7- 1 DATED: January 9, 2012 2 3 JONES DAY ROBERT A. MITTELSTAEDT CRAIG E. STEWART DAVID C. KIERNAN MICHAEL T. SCOTT 4 s/ David C. Kiernan DAVID C. KIERNAN 5 6 8 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: 415/626-3939 415/875-5700 (fax) 9 Attorneys for Defendant Apple Inc. 7 10 ECF CERTIFICATION 11 The filing attorney attests that she has obtained concurrence regarding the filing of this 12 document from the signatories to this document. 13 14 Dated: January 9, 2012 By: s/ Alexandra S. Bernay ALEXANDRA S. BERNAY 15 16 17 18 19 20 21 22 23 24 25 26 27 28 674909_2 JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW -8- 1 2 CERTIFICATE OF SERVICE I hereby certify that on January 9, 2012, 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 January 9, 2012. 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 674909_2 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?60673363111765-L_1_0-1 1/9/2012 CAND-ECF- Page 2 of 2 eryan@bffb.com,nserden@bffb.com  Jacqueline Sailer jsailer@murrayfrank.com  Michael Tedder Scott mike.scott@dlapiper.com,carolyn.ernser@dlapiper.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?60673363111765-L_1_0-1 1/9/2012