Somers v. Apple, Inc.

Filing 22

Response to 21 Court's Order Re. Consolidation filed by Stacie Somers. (Zeldes, Helen) (Filed on 5/2/2008) Modified on 5/5/2008,(counsel failed to properly link to which document relates to.) (cv, COURT STAFF).

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Somers v. Apple, Inc. Doc. 22 1 HAEGGQUIST LAW GROUP ALREEN HAEGGQUIST (221858) 2 501 West Broadway, Suite A-276 San Diego, CA 92101 3 Telephone: 619/955-8218 Facsimile: 619/342-7878 4 alreen@haeggquistlaw.com 5 LAW OFFICE OF HELEN ZELDES 6 HELEN I. ZELDES (220051) 249 S. Highway 101, #370 7 Solana Beach, CA 92075 Telephone: 858/523-1713 8 Facsimile: 858/523-1783 helenz@zeldeslaw.com 9 10 11 12 13 14 15 16 STACIE SOMERS, On Behalf of Herself and All Others Similarly Situated, 17 Plaintiff, 18 vs. 19 20 APPLE, INC., a California Corporation, 21 Defendant. 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:07-cv-06507-JW CLASS ACTION INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER REGARDING CONSOLIDATION JUDGE: DATE: TIME: CTRM: Hon. James Ware May 12, 2008 10:00 a.m. 8-4TH FLOOR Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MEHRI & SKALET, PLLC STEVEN A. SKALET CRAIG L. BRISKIN 1250 Connecticut Ave. NW, Suite 300 Washington, DC 20036 Telephone: 202/822-5100 Facsimile: 202/822-4997 sskalet@findjustice.com cbriskin@findjustice.com Dockets.Justia.com 1 Plaintiff Stacie Somers, on behalf of herself and the putative class she represents in Somers v. 2 Apple, Inc., et. al., No. C-07-06507-JW ("Somers"), respectfully submits the following response to 3 4 5 6 7 Litigation, No. C-05-00037-JW, for the limited purposes of pretrial discovery and scheduling, Plaintiff Somers opposes consolidation for the purposes class certification, summary judgment and this Court's April 22, 2008, Order Directing All Parties to Submit Briefing re: Consolidation. While Plaintiff supports consolidation of the Somers action with the Apple iPod iTunes Anti-Trust 8 trial. 9 I. 10 11 12 CONSOLIDATION IS NOT PRACTICABLE FOR ALL PURPOSES HERE A. The Direct and Indirect Purchaser Actions are at Different Stages in their Development and Each Would be Prejudiced by Consolidation for All Purposes While the direct purchaser class cases were filed more than two years ago, the indirect 13 purchaser action, the Somers case, was filed only five months ago. The direct purchaser class has 14 already engaged in extensive discovery and is prepared to file its class certification brief this month. 15 16 17 18 The parties in Somers, the indirect purchaser action, have only just held their Rule 26(f) conference and agreed to a schedule in which Plaintiff's motion for class certification would be filed on or before November 3, 2008. Plaintiff Somers believes that a November class certification deadline is 19 necessary in the indirect purchaser action to allow Plaintiff sufficient time to obtain necessary 20 discovery, including discovery specific to her indirect purchaser claims that was not requested or 21 produced in the direct purchaser action, to allow sufficient time to prepare her expert report and to 22 23 24 25 26 Trust Litigation, the direct purchaser action, nor is there any benefit to the Court in doing so. To the contrary, it is likely that the class certification issues decided in the Apple iPod iTunes Anti-Trust adequately prepare her motion for class certification. There is no reason to delay the filing of class certification in the Apple iPod iTunes Anti- 27 Litigation would in fact aid the Court in deciding certification issues in the Somers action. 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -1- 1 2 3 4 5 6 7 B. There are Potential Conflicts Between the Direct and Indirect Purchaser Classes While the two actions pending before this Court allege similar issues of fact and law -- both claiming Apple engaged in illegal tying conduct, monopolization and unfair competition related to its iPod and iTune products -- the Somers action is an indirect purchaser action while the Apple iPod iTunes Anti-Trust Litigation is a direct purchaser action. As such, the two proposed classes stand in potential conflict to each other as they are required to prove different sets of facts and meet different 8 tests under the law. 9 II. 10 11 CONSOLIDATION FOR THE LIMITED PURPOSES OF SCHEDULING AND PRETRIAL DISCOVERY WOULD PROMOTE EFFICIENCY Plaintiff Somers agrees with the direct purchaser plaintiffs that limited consolidation of the 12 direct and indirect purchaser actions is appropriate for scheduling and pretrial discovery. 13 Coordination of scheduling and discovery will promote efficiency and reduce expenses for all. 14 III. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -2/s/ Helen I. Zeldes HELEN I. ZELDES 249 S. Highway 101, #370 Solana Beach, CA 92075 Telephone: 858/523-1713 858/523-1783 (fax) HAEGGQUIST LAW GROUP ALREEN HAEGGQUIST 501 West Broadway, Suite A-276 San Diego, CA 92101 Telephone: 619/955-8218 619/342-7878 (fax) CONCLUSION For the foregoing reasons, the indirect purchaser Plaintiff respectfully requests that this Court only consolidate these cases, if at all, for the limited purposes of scheduling and pretrial discovery. DATED: May 2, 2008 LAW OFFICE OF HELEN I. ZELDES 1 2 3 4 5 6 7 8 9 10 MEHRI & SKALET, PLLC STEVEN A. SKALET CRAIG L. BRISKIN 1250 Connecticut Ave. NW, Suite 300 Washington, DC 20036 Telephone: 202/ 822-5100 202/822-4997 (fax) Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on May 2, 2008, I electronically filed the following documents with the 11 Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail 12 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 13 caused the foregoing document or paper to be mailed via the United States Postal Service to the non14 CM/ECF participants indicated on the attached Manual Notice List and Service List: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -3s/ HELEN I. ZELDES HELEN I. ZELDES LAW OFFICES OF HELEN I. ZELDES HELEN I. ZELDES (220051) 249 S. Highway 101, #370 Solana Beach, CA 92075 Telephone: 858/523-1713 858/523-1783 (fax) E-mail: helenz@zeldeslaw.com Indirect Purchaser Plaintiff's Response to Court's Order Regarding Consolidation 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 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 Michael David Braun service@braunlawgroup.com Andrew S. Friedman rcreech@bffb.com,afriedman@bffb.com Roy A. Katriel rak@katriellaw.com,rk618@aol.com Thomas J. Kennedy tkennedy@murrayfrank.com Caroline Nason Mitchell cnmitchell@jonesday.com,mlandsborough@jonesday.com,ewallace@jonesday.com Robert Allan Mittelstaedt ramittelstaedt@jonesday.com,ybennett@jonesday.com Brian P Murray bmurray@rabinlaw.com Jacqueline Sailer jsailer@murrayfrank.com Adam Richard Sand , Esq invalidaddress@invalidaddress.com John J. Stoia , Jr jstoia@csgrr.com Tracy Strong tstrong@jonesday.com,dharmon@jonesday.com Bonny E. Sweeney bonnys@csgrr.com,tturner@csgrr.com,E_file_sd@csgrr.com Manual Notice List 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -4- 1 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 2 this list into your word processing program in order to create notices or labels for these recipients. 3 Todd David Carpenter 4 Bonnett, Fairbourn, Friedman, & Balint 5 6 7 8 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 Mailing Information for a Case 5:07-cv-060507-HRL 9 Electronic Mail Notice List 10 The following are those who are currently on the list to receive e-mail notices for this case. 11 12 13 14 15 16 17 18 Manual Notice List 19 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 20 this list into your word processing program in order to create notices or labels for these recipients. 21 No manual recipients 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -5 Craig L. Briskin cbriskin@findjustice.com Alreen Haeggquist alreen@haeggquistlaw.com Steven A. Skalet sskalet@findjustice.com Helen I. Zeldes helenz@zeldeslaw.com