"The Apple iPod iTunes Anti-Trust Litigation"

Filing 188

Reply Memorandum In Support of Plaintiffs' 165 Motion for Class Certification and Appointment of Class Counsel filed by Melanie Tucker. (Attachments: # 1 Amended [Proposed] Order (Sweeney, Bonny) (Filed on 11/17/2008) Modified on 11/19/2008,(counsel failed to properly link to motion.) (cv, COURT STAFF).

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 THE APPLE IPOD ITUNES ANTI-TRUST 13 LITIGATION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Document Relates To: ALL ACTIONS. ) ) ) ) ) ) ) ) Lead Case No. C-05-00037-JW(RS) CLASS ACTION AMENDED [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND APPOINTING COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP AND THE KATRIEL LAW FIRM AS CO-LEAD CLASS COUNSEL

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This matter came before the undersigned Honorable James Ware of the above-entitled Court

2 upon Plaintiffs' motion for class certification. The Court having considered the motion and all other 3 papers filed concerning that motion, and all other pertinent documents and pleadings filed in this 4 action, 5 6 7 NOW, therefore, it is hereby ORDERED and ADJUDGED: 1. 2. Plaintiffs' motion for class certification is hereby granted. The following class is hereby certified pursuant to Rule 23(b)(2) and (3) of the

8 Federal Rules of Civil Procedure: 9 10 11 All persons or entities in the United States (excluding federal, state and local governmental entities, Apple, its directors, officers and members of their families) who since April 28, 2003 purchased an iPod directly from Apple. 3. The Court also certifies Plaintiffs Melanie Tucker, Mariana Rosen, and Somtai Troy

12 Charoensak as Class Representatives. Pursuant to Fed. R. Civ. P. 23(g), the Court appoints the 13 following law firms as Co-Lead Class Counsel: Coughlin Stoia Geller Rudman & Robbins LLP and 14 The Katriel Law Firm. 15 4. This Court bases this certification and appointment order on the following findings,

16 all of which are amply supported by Plaintiffs' well-pleaded allegations, Defendants' own 17 documents, and expert testimony: 18 (a) Numerosity. Plaintiffs have demonstrated that "the class is so numerous that

19 joinder of all members is impracticable" within the meaning of Fed. R. Civ. P. 23(a)(1). 20 (b) Commonality. Fed. R. Civ. P 23(a)(2) requires that there be "questions of law

21 or fact common to the class." Plaintiffs have satisfied the commonality requirement here by 22 identifying, inter alia, the following common questions of law and fact: 23 24 25 (i) (ii) (iii) the definition of the relevant markets; Apple's market power within these markets; whether Apple monopolized and continues to monopolize the relevant

26 markets in violation of Section 2; 27 28
AMENDED [PRO] ORD GRANTING PLAINTIFFS' MOT FOR CLASS CERT & APPOINTING COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP & THE KATRIEL LAW FIRM AS CO-LEAD CLASS COUNSEL C-05-00037-JW(RS)

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(iv)

whether Apple attempted to monopolize and continues to attempt to

2 monopolize the relevant markets in violation of Section 2; 3 4 (v) (vi) whether Apple's technological tie-in violated Section 1; whether Defendant's conduct caused prices of iPods to be set at

5 supracompetitive levels; 6 (vii) whether Defendant's conduct injured Plaintiffs and other members of

7 the class and, if so, the appropriate class-wide measure of damages; and 8 (viii) the appropriateness of injunctive relief to restrain ongoing and future

9 violations of the law. 10 (c) Typicality. Pursuant to Fed. R. Civ. P. 23(a)(3), Plaintiffs must also show that

11 "the claims or defenses of the representative parties are typical of the claims or defenses of the 12 class." The same common questions identified above also serve to satisfy Plaintiffs' burden on 13 typicality. The Court accordingly finds that typicality is met here because Plaintiffs and Class 14 Members seek the same remedies for similar harms under the same legal theories. 15 (d) Adequacy. Pursuant to Fed. R. Civ. P. 23(a)(4), the Court finds that the

16 "representative parties will fairly and adequately represent the [C]lass." The interests of the 17 Plaintiffs are fully aligned with those of the Class, and their chosen counsel are fully capable of 18 effectively prosecuting this litigation. 19 5. The Court further finds that certification is proper under Rule 23(b)(3). The common

20 questions identified above predominate over any individualized issues concerning the allocation of 21 damages. In other words, "[a] common nucleus of facts and potential legal remedies dominates this 22 litigation." Hanlon v. Chrylser Corp., 150 F.3d 1011, 1022 (9th Cir. 1998). Further, a class action 23 is superior to a series of potentially millions of individual suits. Even if it were feasible for 24 individual Class Members to bring suit, it would be inefficient to re-litigate the numerous common 25 questions in case after case. Moreover, the Court is unaware of any other litigation concerning the 26 controversy at issue herein, and the Court foresees no manageability problems that would militate 27 against class certification. 28
AMENDED [PRO] ORD GRANTING PLAINTIFFS' MOT FOR CLASS CERT & APPOINTING COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP & THE KATRIEL LAW FIRM AS CO-LEAD CLASS COUNSEL C-05-00037-JW(RS)

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6.

The Court further finds that certification is proper under Rule 23(b)(2). Apple has

2 acted or refused to act in a manner generally applicable to the class as a whole. Westways World 3 Travel, Inc. v. AMR Corp., 218 F.R.D. 223, 240 (C.D. Cal. 2003). 4 IT IS SO ORDERED. _________________________________ THE HONORABLE JAMES WARE UNITED STATES DISTRICT JUDGE

5 DATED: __________________ 6 7 Submitted by: 8 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY 10 655 West Broadway, Suite 1900 San Diego, CA 92101 11 Telephone: [phone] (fax) 12 THE KATRIEL LAW FIRM 13 ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 14 Washington, DC 20007 Telephone: [phone] (fax) 9 16 Co-Lead Counsel for Plaintiffs 17 BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 18 ANDREW S. FRIEDMAN FRANCIS J. BALINT, JR. 19 ELAINE A. RYAN TODD D. CARPENTER 20 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 21 Telephone: [phone] (fax) 22 BRAUN LAW GROUP, P.C. 23 MICHAEL D. BRAUN 12304 Santa Monica Blvd., Suite 109 24 Los Angeles, CA 90025 Telephone: [phone] (fax) 26 MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY 27 JACQUELINE SAILER 275 Madison Avenue, Suite 801 28 New York, NY 10016

AMENDED [PRO] ORD GRANTING PLAINTIFFS' MOT FOR CLASS CERT & APPOINTING COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP & THE KATRIEL LAW FIRM AS CO-LEAD CLASS COUNSEL C-05-00037-JW(RS)

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1 Telephone: [phone] (fax) 2 GLANCY BINKOW & GOLDBERG LLP 3 MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 4 Los Angeles, CA 90067 Telephone: [phone] (fax) 6 Additional Counsel for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
AMENDED [PRO] ORD GRANTING PLAINTIFFS' MOT FOR CLASS CERT & APPOINTING COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP & THE KATRIEL LAW FIRM AS CO-LEAD CLASS COUNSEL C-05-00037-JW(RS)
S:\CasesSD\Apple Tying\ORD00055611_Class Cert.doc

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CERTIFICATE OF SERVICE I hereby certify that on November 17, 2008, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 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 November 17, 2008. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ BONNY E. SWEENEY BONNY E. SWEENEY COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: [phone] (fax) E-mail:[e-mail]

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Mailing Information for a Case 5:05-cv-00037-JW
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The following are those who are currently on the list to receive e-mail notices for this case. Joseph Balint , Jr [e-mail]
Francis

David Braun [e-mail]
Michael

S. Friedman [e-mail],[e-mail]
Andrew

Haeggquist [e-mail]
Alreen

A. Katriel [e-mail],[e-mail]
Roy

J. Kennedy [e-mail]
Thomas

Nason Mitchell [e-mail],[e-mail],[e-mail]
Caroline

Allan Mittelstaedt [e-mail],[e-mail]
Robert

P Murray [e-mail]
Brian

Sailer [e-mail]
Jacqueline

Richard Sand , Esq [e-mail]
Adam

Ellsworth Stewart [e-mail],[e-mail]
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J. Stoia , Jr [e-mail]
John

Strong [e-mail],[e-mail]
Tracy

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E. Sweeney [e-mail],[e-mail],[e-mail]
Bonny

I. Zeldes [e-mail]
Helen

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Todd David Carpenter Bonnett, Fairbourn, Friedman, & Balint 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012 Elaine A. Ryan Bonnett Fairbourn Friedman & Balint, P.C 2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012

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