Holman et al v. Apple, Inc. et al

Filing 67

MOTION to Relate C08-948 JSW, C07-5152 JW and C07-5662 JW Cases UNDER L.R. 3-12 filed by Herbert H. Kliegerman. (Attachments: # 1 Exhibit A)(Gregorek, Francis) (Filed on 2/15/2008) Modified on 2/19/2008 (cv, COURT STAFF). Modified on 2/19/2008 (cv, COURT STAFF).

Holman et al v. Apple, Inc. et al Doc. 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FRANCIS M. GREGOREK (144785) gregorek@whafh.com BETSY C. MANIFOLD (182450) manifold@whafh.com RACHELE R. RICKERT (190634) rickert@whafh.com MARISA C. LIVESAY (223247) livesay@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 MARK C. RIFKIN (pro hac vice pending) rifkin@whafh.com ALEXANDER H. SCHMIDT (pro hac vice pending) schmidt@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212/545-4677 Attorneys for Plaintiff Herbert H. Kliegerman [Additional counsel appear on signature page] UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE APPLE & AT&TM ANTITRUST ) LITIGATION ) ) ) ) ) ) ) ) ) _____________________________________ ) Master File No. C 07-05152 JW PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 CRTRM: JUDGE: 8 Hon. James Ware PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 Master File No. C 07-05152 JW Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Civil Local Rule 7-11, plaintiff Herbert H. Kliegerman ("Plaintiff") hereby moves the Court to relate the matter of Kliegerman v. Apple, Inc., Case No. C 08-948 (filed in New York state court on August 27, 2007, removed to the Southern District of New York on September 27, 2007, and transferred to this Court on February 12, 2008) ("Kliegerman"), to this action (In re Apple & AT&TM Anti-Trust Litigation, Master File No. 07-CV-05152-JW) ("Apple"). Apple consists of two cases consolidated by this Court on November 30, 2007: Timothy P. Smith, et al. v. Apple Inc., AT&T Mobility LLC, et al., Case No. 07-CV-05662-HRL (filed October 5, 2007 and removed to federal court November 7, 2007) ("Smith"), and Holman, et al. v. Apple Inc., AT&T Mobility LLC, et al., Case No. C 07-05152 JW) ("Holman"). As described further below, Kliegerman and Apple both involve the same defendants (Apple Inc. and AT&T Mobility LLC), and both challenge an agreement between Apple Inc. and AT&T Mobility LLC concerning the iPhone, alleging that the agreement violates the antitrust and unfair competition laws. In addition, both Kliegerman and Apple challenge various business conduct related to the iPhone and software updates to the iPhone. In short, Kliegerman and Apple concern substantially the same parties, property, transactions or events, and therefore, are related cases within the meaning of Civil Local Rule 3-12. I. KLIEGERMAN AND APPLE CONCERN SUBSTANTIALLY THE SAME PARTIES, PRODUCTS, AND ALLEGED TRANSACTIONS AND AGREEMENTS Kliegerman and Apple are both actions brought against Apple Inc. and AT&T Mobility LLC ("ATTM") which allege that Apple Inc. and ATTM entered into an unlawful agreement under which ATTM will be the exclusive provider of phone and data services for the iPhone in the United States and Apple will receive a portion of ATTM's profits. Kliegerman Amended Complaint 54-63, filed November 16, 2007 in S.D.N.Y. and attached hereto as Exhibit A; Holman Complaint 38, 41, filed October 5, 2007; Smith First Amended Complaint ("FAC") 28(1)-(3), filed November 2, 2007. Based on these allegations, both the Kliegerman and Apple actions assert claims against Apple and ATTM for unlawful tying and attempted monopolization under Section 2 of the Sherman Antitrust Act, 15 U.S.C. 1-2. Kliegerman Complaint 97-127; Holman Complaint PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 MASTER FILE NO. C 07-05152 JW -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 90-97; Smith FAC 128-35. The Kliegerman and Apple actions both assert claims based on alleged violations of California's Unfair Competition Law, though the Kliegerman action also asserts claims under the unfair trade and deceptive practices laws of 43 other jurisdictions. Kliegerman Complaint 128-134; Holman Complaint 76-89; Smith FAC 117-27. In addition, both the Kliegerman and Smith complaints bring actions for breach of warranties. Kliegerman Complaint 135-39 (alleging violations of the Magnuson-Moss Warranty Act); Smith FAC 136-57. Both the Kliegerman and Holman complaints assert an additional cause of action for trespass to chattels. Kliegerman Complaint 140-44; Holman Complaint 98-102. While Kliegerman and Apple involve additional causes of action against Apple Inc. and ATTM, all such claims relate to the same set of alleged practices by the defendants as described above. Thus, Smith's separate cause of action for common law monopolization, Smith FAC 183-89, and violations of the Consumer Legal Remedies Act, id. 158-65, the Computer Fraud Abuse Act, id. 166-71, the Racketeer Influenced and Corrupt Organizations Act, id. 190-95, and California Penal code 502, id. 172-82, are all based on the same alleged agreements and practices of ATTM and Apple Inc. Furthermore, both Kliegerman and Apple are purported class actions that seek to represent the interests of the same classes of people. The proposed classes in Kliegerman consist of: (1) "[a]ll persons ... who purchased an iPhone from Apple or AT&T anywhere in the United States between June 29, 2007 ... through such time in the future when the effects of Defendants' violations of the federal antitrust laws and the Magnuson-Moss Warranty Act, and Apple's trespass to chattels, as alleged herein have ceased;" and (2) "[a]ll persons ... who purchased an iPhone from Apple or AT&T in any of the 44 jurisdictions identified in Count VI herein between June 29, 2007 ... through such time in the future when the effects of Defendants' unfair and deceptive acts and practices alleged herein have ceased." Kliegerman Complaint 85-86. The proposed class in Holman is of "all individuals or entities who at any time from June 29, 2007 to the date of judgment in this action, bought and implemented the iPhone and sustained damages as a result." Holman Complaint 63. The proposed class in Smith is made up of "[a]l persons or entities who ... purchased or own an iPhone, intended for use by themselves, their families, or PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 MASTER FILE NO. C 07-05152 JW -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their members, participants, or employees ... during the period from June 29, 2007 through such time in the future as the effects of Apple's illegal conduct, as alleged herein, have ceased ... [and who] purchased audio or video files from the iTunes Music Store during the Class Period." Smith FAC 93(a)-(b); 94(a)-(b). Given that this Court has already found the classes proposed in Holman and Smith to be sufficiently substantially similar as to require they be related and consolidated, the Kliegerman action should be related as well given its substantial similarity to them. II. IT WOULD BE UNDULY BURDENSOME FOR THESE ACTIONS TO PROCEED BEFORE TWO DIFFERENT JUDGES The Kliegerman and Apple actions should be assigned to the same judge to promote judicial economy. If the cases proceeded in front of separate judges, each judge would be required to educate him or herself as to the same set of transactions, the same product markets, and identical or substantially similar legal arguments as made by both plaintiffs and defendants. All parties may be subject to potentially incompatible rulings and scheduling, and defendants in both actions, Apple Inc. and ATTM, will be required to defend the same or substantially similar actions before two different judges, with duplicative hearings and motions. In short, allowing these cases to proceed separately "will be an unduly burdensome duplication of labor and expense" that may lead to conflicting results. Civil L.R. 3-12(a)(2). Relating both cases and placing them under the supervision of one judge not only stands to save the Court and the parties significant costs, but will also likely facilitate and expedite both cases. /// /// /// /// /// /// /// /// /// PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 MASTER FILE NO. C 07-05152 JW -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION Pursuant to Civil Local Rule 3-12(f), plaintiff Kliegerman respectfully requests that the Court grant his motion and order the Kliegerman and Apple actions related. DATED: February 15, 2008 Respectfully Submitted, WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP FRANCIS M. GREGOREK BETSY C. MANIFOLD RACHELE R. RICKERT MARISA C. LIVESAY /s/ Francis M. Gregorek FRANCIS M. GREGOREK Symphony Towers 750 B. Street, Suite 2770 San Diego, California 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 gregorek@whafh.com manifold@whafh.com rickert@whafh.com livesay@whaf.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice pending) ALEXANDER H. SCHMIDT (pro hac vice pending) 270 Madison Avenue New York, New York 10016 Telephone: 212/545-4600 Facsimile: 212/545-4677 rifkin@whafh.com schmidt@whafh.com RANDALL S. NEWMAN, P.C. RANDALL S. NEWMAN The Trump Building 40 Wall Street, 61st Floor New York, New York 10005 Telephone: 212/797-3737 Facsimile: 212/797-3172 rsn@randallnewman.net PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 Master File No. C 07-05152 JW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE:15775.MOT SHABEL & DENITTIS, P.C. STEPHEN P. DENITTIS (pro hac vice pending) NORMAN SHABEL (pro hac vice pending) 5 Greentree Centre, Suite 302 Marlton, New Jersey 08053 Telephone: 856/797-9951 Facsimile: 856/797-9978 sdenittis@shabeldenittis.com Attorneys for Plaintiff Herbert H. Kliegerman PLAINTIFF'S ADMINISTRATIVE MOTION TO RELATE CASES UNDER L.R. 3-12 MASTER FILE NO. C 07-05152 JW -1-