"The Apple iPod iTunes Anti-Trust Litigation"

Filing 706

CASE MANAGEMENT STATEMENT filed by Apple Inc.. (Kiernan, David) (Filed on 4/13/2012)

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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 STATUS CONFERENCE This Document Relates To: ) STATEMENT 17 ) ALL ACTIONS. ) 18 19 20 21 22 23 24 25 26 27 28 699797_1 1 In accordance with the Court’s April 2, 2012 Order, the parties jointly submit this Joint 2 Status Conference Statement. 3 I. DISPOSITIVE MOTIONS 4 No dispositive motions are pending. 5 Plaintiffs’ Position 6 It is Plaintiffs’ position that further dispositive motions by Apple are neither permitted nor 7 necessary. See Fed. R. Civ. P. 56 (b) (“Time to File a Motion. Unless a different time is set by local 8 rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 9 30 days after the close of all discovery.”) Discovery in this case closed on December 20, 2011. See, 10 e.g., July 22, 2010 Scheduling Order. The deadline for Apple to file its renewed summary judgment 11 motion was set forth in the October 28, 2010 Scheduling Order. Its renewed motion was filed 12 January 18, 2011. The Court ruled on the motion on May 19, 2011. 13 Should the Court determine that Apple is entitled to another, third, summary judgment 14 motion in this case, Plaintiffs’ request the parties meet and confer on a schedule for such a motion. 15 Apple’s Position: 16 The time for filing dispositive motions has not passed. Rule 56(b) allows a party to “file a 17 motion for summary judgment at any time until 30 days after the close of all discovery.” As 18 reflected below, expert discovery is ongoing and will not close until November 19, 2012. Nor did 19 this Court’s October 28, 2010 Scheduling Order limit Rule 56(b). That Order simply set a briefing 20 schedule for Apple’s motion seeking summary judgment on the threshold ground that Apple’s 21 software updates were not exclusionary acts as a matter of law. 22 In addition to showing exclusionary conduct, plaintiffs must prove the other elements of their 23 antitrust claim, including antitrust impact and damages. Apple’s earlier summary judgment motion 24 did not address and could not have addressed these issues because plaintiffs had not produced at that 25 time (and still have not produced) their expert reports addressed to those issues. As Rule 56(b) 26 recognizes, Apple’s motion will be ripe once plaintiffs’ produce their reports and discovery on those 27 issues is complete. And if, as Apple believes, Plaintiffs’ expert(s) will be unable to establish impact 28 699797_1 JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW -1- 1 or damages, it is in the interests of all to have those issues determined by motion rather than hold an 2 unnecessary trial. 3 Apple proposes the same briefing schedule proposed for motions to exclude experts below: 4 i.e., dispositive motion due November 30, 2012, opposition due December 21, 2012, and Reply due 5 January 11, 2013. 6 II. CLASS NOTICE 7 On March 29, 2012, the Court approved the parties joint proposal regarding notice. At this 8 time, the notice process is proceeding as scheduled. On April 5, 2012, Apple informed the notice 9 provider that it had determined that it had 8.5 million email addresses instead of the 4.2 million 10 email addresses it originally believed it possessed. The notice providers have told Plaintiffs and 11 Apple that it can still complete the notice process as originally envisioned in the joint plan and will 12 be sending out the notice in several batches over the course of six days, with the start of the email 13 portion of the notice plan set for April 24, 2012. Mailings to resellers will be sent on April 30, 2012. 14 Advertising space in Entertainment Weekly and Wired magazine has been secured. The 15 notice to be published in Entertainment Weekly will run in the May 11, 2012 edition, available on 16 newsstands May 4, 2012. The notice to be published in Wired will run in the June 2012 edition, 17 available on newsstands May 22, 2012. The planned website has been secured and is expected to go 18 live on April 23, 2012. The toll-free hotline is to go live on April 23, 2012 19 III. SCHEDULING 20 The parties have conferred regarding a schedule for the remainder of the litigation and 21 propose the following: 22 A. Experts 23 Plaintiffs’ expert report(s) due: 24 Service of Plaintiffs’ experts’ data and October 1 , 2012 documents: 25 26 September 28, 2012 Deposition(s) of Plaintiffs’ expert(s) to be October 26, 2012 completed 27 28 699797_1 Defendant’s expert report(s) due: JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW November 2, 2012 -2- Service of Defendant’s experts’ data and November 5, 2012 documents: 1 2 Depositions of Defendants expert(s) to be November 14, 2012 completed: 3 4 Plaintiffs’ rebuttal report(s) due: November 16, 2012 5 Service of documents: and November 19, 2012 November 30, 2012 Oppositions due: December 21, 2012 Replies due: 7 data Motions to exclude expert testimony due: 6 Plaintiffs experts’ January 11, 2013 8 9 10 Hearing on motions to exclude expert testimony January 18, 2013 11 B. 12 Pretrial Practice 13 Service of proposed witness and exhibit lists: January 7, 2013 14 Service of objections to witness and exhibit lists: January 14, 2013 15 Final exhibit lists, witness lists, jury instructions, January 21, 2013 16 voir dire questions, and verdict forms 17 Motions in limine January 11, 2013 18 Oppositions to motions in limine January 28, 2013 19 Replies in support of motions in limine January 25, 2013 20 Pretrial Conference Week of January 28, 2013 21 C. Trial. 22 February 2013 23 Estimated length of trial: 10 days. 24 IV. SETTLEMENT EFFORTS 25 Over the course of the case, the parties have discussed ways to resolve the litigation. 26 27 28 699797_1 JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW -3- 1 DATED: April 13, 2012 2 3 4 ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK ALEXANDRA S. BERNAY CARMEN A. MEDICI 5 6 s/Alexandra S. Bernay [ATTORNEY SIGNATURE] 7 8 9 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) 10 Class Counsel for Plaintiffs 11 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) 12 13 14 15 16 17 18 19 20 21 22 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) 23 24 25 26 MURRAY FRANK LLP BRIAN P. MURRAY 275 Madison Avenue, Suite 801 New York, NY 10016 Telephone: 212/682-1818 212/682-1892 (fax) 27 28 699797_1 JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW -4- 1 4 GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 310/201-9160 (fax) 5 Additional Counsel for Plaintiffs 6 DATED: April 13, 2012 JONES DAY ROBERT A. MITTELSTAEDT CRAIG E. STEWART DAVID C. KIERNAN 2 3 7 8 9 s/ David C. Kiernan DAVID C. KIERNAN 10 11 12 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: 415/626-3939 415/875-5700 (fax) 13 Attorneys for Defendant Apple Inc. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 699797_1 JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW -5-