"The Apple iPod iTunes Anti-Trust Litigation"

Filing 719

JOINT CASE MANAGEMENT STATEMENT, filed by Apple Inc., Somtai Troy Charoensak, Mariana Rosen, Melanie Tucker. (Attachments: # 1 Exhibit 1 Proposed Scheduling Order)(Mittelstaedt, Robert) (Filed on 9/17/2012) Modified on 9/18/2012 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 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 Attorneys for Defendant APPLE INC. 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 THE APPLE iPOD iTUNES ANTITRUST LITIGATION Lead Case No. C 05-00037 YGR [CLASS ACTION] 15 ___________________________________ JOINT CASE MANAGEMENT CONFERENCE STATEMENT 16 This Document Relates To: 17 ALL ACTIONS 14 18 Judge: Date: Time: Place: Honorable Yvonne Gonzalez Rogers September 17, 2012 19 20 21 22 23 24 25 26 27 28 Joint Case Management Conference Statement C 05 00037 YGR 1 1. Date case was filed. 2 The first action was filed on January 3, 2005. Other actions followed, and the Court 3 consolidated the pending cases on March 21, 2007 as The Apple iPod iTunes Antitrust Litigation. 4 The operative Amended Consolidated Complaint was filed January 26, 2010. 5 2. 6 List or description of all parties. Plaintiffs and class representatives are Somtai Troy Charoensak, Mariana Rosen and 7 Melanie Tucker. Defendant is Apple Inc. 8 3. 9 conferences, discovery cutoff (both fact and expert) and trial date. 10 List of all current deadlines, including those for dispositive motions, pretrial Fact discovery has closed. The parties are currently completing merits-based expert 11 discovery, including producing additional data. The parties have been meeting and conferring 12 regarding a schedule for the remainder of the case and provide here as Exhibit 1 agreed-upon dates 13 regarding the remainder of the case. The schedule reflects the time needed to complete expert 14 discovery in light of the additional data being produced and availability of the experts to complete 15 the expert reports. 16 4. 17 List of all pending motions and status of briefing. No motions are pending. Following submission of Plaintiffs’ merits expert report, 18 Defendants anticipate filing a motion for summary judgment “addressing issues which have not yet 19 been raised before the Court” including issues “resulting from disclosures made in that expert 20 report.” (Dkt. No. 713.) 21 5. Brief description of the event underlying the action. 22 The named plaintiffs and class representatives are three individuals who claim that 23 software updates Apple issued for iPods sold after September 12, 2006 violated the antitrust laws. 1 24 The updates required iPod users to use Apple’s free iTunes software application rather than other 25 26 27 28 1 Plaintiffs represent a class of direct purchasers. In 2007, Stacie Somers filed a complaint against Apple in Somers v. Apple Inc., Case No. 07-6507 JW, alleging the same claims as Plaintiffs on behalf of indirect purchasers of iPods and direct purchasers of music from the iTunes Store. The Court denied class certification and dismissed the case in its entirety. Somers appealed, which is now pending in the Ninth Circuit Court of Appeals. 2 Joint Case Management Conference Statement C 05 00037 YGR 1 third-party applications to load music on iPods sold after September 12, 2006. Plaintiffs allege 2 that the goal of the updates was to prevent iPods from playing songs purchased from competitors, 3 which in turn decreased competition and allowed Apple to increase iPod prices between September 4 12, 2006 and March 31, 2009 to levels higher than they otherwise would have been. Apple asserts 5 that the updates improved its products and benefitted consumers by, among other things, ensuring 6 an improved and seamless customer experience in using Apple products, stopping corruption of 7 iPods caused by the use of third-party applications, and encouraging product innovation. Apple 8 further asserts that the updates had no effect on iPod prices. 9 6. 10 Summary of all claims, counterclaims, crossclaims, third party claims. Plaintiffs’ Amended Consolidated Complaint filed January 26, 2010 pleaded claims for (1) 11 Monopolization under Section 2 of the Sherman Antitrust Act, 15 U.S.C. §2; (2) Attempted 12 Monopolization under Section 2 of the Sherman Antitrust Act, 15 U.S.C. §2; (3) Violation of the 13 Cartwright Act, Cal. Bus. & Prof. Code §§16270, et seq.; (4) Violation of California’s Unfair 14 Competition Law, Cal. Bus. & Prof. Code §§17200, et seq.; (5) Violation of the Consumers Legal 15 Remedies Act (“CLRA”), Cal. Civ. Code §§1750, et seq.; (6) and Common Law Monopolization 16 Business Practices. Dkt. No. 322. On June 29, 2010, the Court dismissed Plaintiffs’ Cartwright 17 Act, CLRA, and Common Law Monopolization claims with prejudice. (Dkt. No. 377.) 18 Accordingly, the remaining claims are that the software updates constitute unlawful 19 monopolization and attempted monopolization in violation of § 2 of the Sherman Act (15 U.S.C. § 20 2) and California Business & Professions Code §17200. 21 There are no counterclaims, crossclaims or third-party claims. 22 7. 23 how damages are computed. 24 List and description of relief sought and damages claimed with an explanation as to Plaintiffs seek unspecified damages for the amount of the alleged overcharge for iPods sold 25 between September 12, 2006 – March 31, 2009. 26 8. 27 28 Status of discovery. Fact discovery is complete. Expert discovery is ongoing and as per paragraph 3, the parties have agreed to a schedule regarding expert discovery deadlines. 3 Apple’s Opp. to Plfs’ Mot. for Admin. Relief C 05 00037 JW 1 9. Procedural history of the case including a list of previous motions decided, ADR 2 proceedings or settlement conferences scheduled or concluded, appellate 3 proceedings pending or concluded, and any previous referral to a magistrate judge, 4 including the purpose of the reference. 5 Complaints and Dispositive Motions 6 The initial complaint in this matter was filed in January 2005. In April 2007, Plaintiffs 7 filed a Consolidated Complaint, challenging Apple’s use of proprietary digital rights management 8 software on music sold through its online iTunes Store on the grounds that it constituted tying and 9 monopolization in violation of federal and state antitrust laws. Dkt. No. 107. As discussed below, 10 in December 2008, the court certified a class on this original claim. (Dkt. No. 196.) Apple filed 11 its Answer in June 2007. Dkt. No. 110. 12 In two orders entered in 2009, the Court dismissed plaintiffs’ tying claims. (Dkt. 213 and 13 Dkt. No. 274.) In light of this ruling, on December 21, 2009, the court sua sponte decertified the 14 class and invited Plaintiffs to amend their complaint to allege actions Apple took to maintain 15 monopoly power that were not dependent on allegations of tying. (Dkt. No. 303.) 16 On January 26, 2010, Plaintiffs amended their complaint, challenging software updates 17 issued in October 2004 (referred to as iTunes 4.7) and in September 2006 (referred to as iTunes 7.0 18 and discussed above). (Dkt. No. 322.) In February 2010, Apple moved to dismiss or, alternatively 19 for summary judgment. (Dkt. No. 325.) On June 29, 2010, the Court granted Apple’s motion to 20 dismiss as to plaintiffs Cartwright Act, CLRA, and common law monopolization claims, otherwise 21 denied Apple’s motion to dismiss, and denied as premature Apple’s motion for summary judgment 22 pending further discovery requested by Plaintiffs. (Dkt. No. 377.) In January 2011, Apple 23 renewed its motion for summary judgment. (Dkt. No. 473.) On May 19, 2011, the Court granted 24 summary judgment on Plaintiffs’ claim challenging the iTunes 4.7 update issued in 2004 and 25 denied summary judgment with respect to iTunes 7.0. (Dkt. No. 627.) 26 Class Certification 27 On December 22, 2008, the Court granted Plaintiffs’ motion for class certification. (Dkt. 28 No. 196.) On December 21, 2009, the Court sua sponte decertified both the Rule 23(b)(2) and 4 Apple’s Opp. to Plfs’ Mot. for Admin. Relief C 05 00037 JW 1 (b)(3). (Dkt. No. 303.) In January 2011, Plaintiffs renewed their motion for class certification 2 based on their remaining monopolization and attempted monopolization claims. On November 22, 3 2011, the Court certified a class of “[a]ll persons or entities in the United States (excluding federal, 4 State, and local government entities, Apple, its directors, officers, and members or their families) 5 who purchased [a specified model of] iPod directly from Apple between September 12, 2006 and 6 March 31, 2009.” (Dkt. No. 694.) 2 7 Class notice has been completed pursuant to the notice plan approved by the court, which 8 included notice by email and mail, publication, and a website. (Dkt. No. 704.) The opt out date 9 was July 30, 2012. 10 Appellate Proceedings 11 Following the Court’s November 2011 grant of class certification, Apple sought 12 interlocutory review under Rule 23(f) of the Federal Rules of Civil Procedure on December 6, 13 2011. (Dkt. No. 697.) The Ninth Circuit denied Apple’s petition on March 13, 2012. (Dkt. No. 14 701.) 15 Settlement Conferences and Mediation 16 The parties have engaged in mediation that was unsuccessful. In addition, on May 1 and 2, 17 Judge Ware held a two-day session with Plaintiffs and Apple in an effort to settle the litigation. 18 Those efforts were unsuccessful. 19 //// 20 //// 21 22 23 24 25 26 27 28 2 On June 22, 2011, the Court ordered further supplemental briefing to have the parties address the specific definition of the products at issue in the class period, the geographic scope of the class, and the effect of the Supreme Court’s June 20, 2011 decision in Wal-Mart Stores, Inc. v. Dukes on Plaintiffs’ Motion for Class Certification. (Dkt No. 639.) On June 23, 2011, both parties filed further supplemental briefs to address those issues. (Dkt. Nos. 644 & 646.) Pursuant to the Court’s August 2, 2011 Order, on September 23, 2011 and November 14, 2011, the parties filed supplemental expert reports addressing class issues. (Dkt. Nos. 679 & 692.) 5 Apple’s Opp. to Plfs’ Mot. for Admin. Relief C 05 00037 JW 1 10. 2 the action. 3 4 5 6 If there is an immediate need for a case management conference to be scheduled in The parties do not believe an immediate case management conference is necessary, but are happy to meet with the Court should the Court believe it necessary. Dated: September 17, 2012 By:/s/ Robert A. Mittelstaedt Robert A. Mittelstaedt 7 8 Counsel for Defendant APPLE INC. 9 10 11 12 13 JONES DAY Dated: September 17, 2012 JONES DAY By:/s/ Alexandra Bernay Alexandra Bernay Counsel for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Apple’s Opp. to Plfs’ Mot. for Admin. Relief C 05 00037 JW