"The Apple iPod iTunes Anti-Trust Litigation"

Filing 209

Memorandum in Opposition re 200 MOTION for Judgment on the Pleadings As To Plaintiffs' Tying Claims filed byMelanie Tucker. (Sweeney, Bonny) (Filed on 3/2/2009)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 209

1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 BONNY E. SWEENEY (176174) 655 West Broadway, Suite 1900 3 San Diego, CA 92101 Telephone: [phone] (fax) [e-mail] 5 THE KATRIEL LAW FIRM 6 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 7 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] 9 Co-Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS) 15 LITIGATION ) ) CLASS ACTION 16 ) ) PLAINTIFFS' OPPOSITION TO This Document Relates To: 17 ) DEFENDANT'S MOTION FOR ) JUDGMENT ON THE PLEADINGS AS TO ALL ACTIONS. 18 ) PLAINTIFFS' TYING CLAIMS 19 20 21 22 23 24 25 26 27 28 JUDGE: DATE: TIME: CTRM: Hon. James Ware March 23, 2009 9:00 a.m. 8-4th Floor

Dockets.Justia.com

1 2 3 I. 4 II. 5 III. 6 IV. 7 8 9 10 11 12 13 14 V. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. 2.

TABLE OF CONTENTS Page INTRODUCTION ...............................................................................................................1 SUMMARY OF PLAINTIFFS' TYING CLAIMS.............................................................2 APPLICABLE LEGAL STANDARDS ..............................................................................2 LEGAL ARGUMENT.........................................................................................................3 A. Issues Raised by the Court.......................................................................................3 1. There Is No Requirement Under Section 1 that the Tying and Tied Products Be Purchased Together .................................................................3 Plaintiffs Need Not Allege Coercion on an Individual Basis to State a Viable Section 1 Tying Claim..........................................................9

Issues Raised by Apple ..........................................................................................14 1. 2. Plaintiffs Allege Actionable Federal Law Claims .....................................14 Plaintiffs Allege Actionable State Law Claims .........................................15

CONCLUSION..................................................................................................................16

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1 2 3 CASES

TABLE OF AUTHORITIES Page

4 Adv. Bus. Sys. & Supply Co. v. SCM Corp., 415 F.2d 55 (4th Cir. 1969) .................................................................................................7 5 Amerinet, Inc. v. Xerox Corp., 6 972 F.2d 1483 (8th Cir. 1992) .............................................................................................8 7 Ariz. v. Maricopa County Med. Soc., 457 U.S. 332, 102 S. Ct. 2466 (1982)................................................................................15 8 B.H. Goodrich v. Betkoski, 9 99 F.3d 505 (2d Cir. 1996)...................................................................................................3 10 Betaseed, Inc. v. U&I, Inc., 681 F.2d 1203 (9th Cir. 1982) ...........................................................................................10 11 Bogosian v. Gulf Oil Corp., 12 561 F.2d 434 (3d Cir. 1977).................................................................................................7 13 Cascade Health Solutions v. Peacehealth, 515 F.3d 883 (9th Cir. 2008) .......................................................................................10, 13 14 Chase Parkway Garage Inc. v. Subaru, Inc., 15 94 F.R.D. 330 (D. Mass. 1982)..........................................................................................13 16 Colburn v. Roto-Rooter Corp., 78 F.R.D. 679 (N.D. Cal. 1978).........................................................................................13 17 Compuware Corp. v. IBM, 18 259 F. Supp. 2d 597 (E.D. Mich. 2002)...............................................................................7 19 Daniels v. Amerco, No. 81 CIV 3801 (RLC), 20 1983 WL 1794 (W.D.N.Y. Mar. 10, 1983)........................................................................13 21 Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 112 S. Ct. 2072 (1992)........................................................................ passim 22 Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 23 132 F.3d 526 (9th Cir. 1997) .........................................................................................3, 13 24 Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534 (9th Cir. 1983) .................................................................................5, 6, 9, 10 25 Fortner Enters., Inc. v. United States Steel Corp., 26 394 U.S. 495 89 S. Ct. 1252 (1969).....................................................................................9 27 Freeland v. AT & T Corp., 238 F.R.D. 130 (S.D.N.Y. 2006) .......................................................................................13 28
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3 Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976).......................................................................................12, 14 4 In re Data Gen. Corp. Antitrust Litig., 5 490 F. Supp. 1089 (N.D. Cal. 1980) ....................................................................................4 6 In re Live Concert Antitrust Litig., 247 F.R.D. 98 (C.D. Cal. 2007) ...........................................................................................2 7 Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 8 466 U.S. 2, 104 S. Ct. 1551 (1984)......................................................................................8 9 Little Caesar Enters., Inc. v. Smith, 895 F. Supp. 884 (E.D. Mich. 1995)..................................................................................13 10 Moore v. Jas H. Matthews & Co., 11 550 F.2d 1207 (9th Cir. 1977) ................................................................................... passim 12 Murphy v. Bus. Cards Tomorrow, Inc., 854 F.2d 1202 (9th Cir. 1988) .......................................................................................9, 13 13 N. Pac. Ry. Co. v. United States, 14 356 U.S. 1, 78 S. Ct. 514 (1958)................................................................................ passim 15 Nobel Scientific Indus. v. Beckham Instruments, 670 F. Supp. 1313 (D. Md. 1986) ..................................................................................7, 14 16 Olmstead v. Amoco Oil Co., 17 No. 76-247-Orl-Civ-Y, 1977 WL 1416 (M.D. Fla. June 16, 1977).........................................................................13 18 Paladin Assocs. v. Montana Power Co., 19 328 F.3d 1145 (9th Cir. 2003) ...........................................................................................10 20 Santa Cruz Med. Clinic v. Dominican Santa Cruz Hosp., No. C93 20613 RMW, 21 1995 WL 853037 (N.D. Cal. Sept. 7, 1995) ........................................................................8 22 Schor v. Abbott Labs., 457 F.3d 608 (7th Cir. 2006) ...............................................................................................7 23 Sheridan v. Marathon Petroleum Co., LLC, 24 530 F.3d 590 (7th Cir. 2008) ...............................................................................................4 25 Siegel v. Chicken Delight, Inc., 448 F.2d 45 (9th Cir. 1971) ...............................................................................................12 26 Slattery v. Apple Comp., Inc., 27 No. C 05-00037 JW, 2005 WL 2204981 (N.D. Cal. Sept. 9, 2005) ......................................................................9 28
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3 Smith v. Denny's Rests., Inc., 62 F.R.D. 459 (N.D. Cal. 1974).........................................................................................13 4 Toulumne v. Sonora Cmty. Hosp., 5 236 F.3d 1148 (9th Cir. 2001) .....................................................................................14, 15 6 Tucker v. Apple Comp., Inc., 493 F. Supp. 2d 1090 (N.D. Cal. 2006) .........................................................................9, 13 7 Ungar v. Dunkin' Donuts of Am., Inc., 8 531 F.2d 1211 (3d Cir. 1976).............................................................................................13 9 United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) .........................................................................................4, 14 10 Waldo v. N. Am. Van Lines, Inc., 11 102 F.R.D. 807 (W.D. Pa. 1984) .......................................................................................13 12 Ways & Means, Inc. v. IVAC Corp., 506 F. Supp. 697 (N.D. Cal. 1979), 13 aff'd 638 F.2d 143 (9th Cir. 1981).................................................................................8, 14 14 STATUTES, RULES AND REGULATIONS 15 15. U.S.C. §1................................................................................................................................ passim 16 Federal Rule of Civil Procedure 17 Rule 12(b) ............................................................................................................................1 Rule 12(c)...................................................................................................................1, 2, 13 18 California Business & Professional Code 19 §16700 et seq. ....................................................................................................................15 §17200 et seq. ....................................................................................................................15 20 California Civil Code 21 §1750 et seq. ......................................................................................................................15 22 SECONDARY AUTHORITIES 23 10 Phillip E. Areeda, Herbert Hovenkamp & Einer Elhauge, Antitrust Law: An Analysis of Antitrust Principles and Their Application, 24 ¶1752e (2d ed. 2004) ...........................................................................................................3 25 Press Release, Changes Coming to the iTunes Store available at www.apple.com/pr/library/2009/01/06itunes.html 26 (Jan. 6, 2009)........................................................................................................................2 27 28
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Plaintiffs Melanie Tucker, Somtai Charoensak, and Mariana Rosen (collectively, "Plaintiffs")

2 respectfully submit this memorandum in opposition to Defendant Apple, Inc.'s ("Apple") Motion for 3 Judgment on the Pleadings as to Plaintiffs' Tying Claims, filed February 13, 2009 ("Apple's 4 Motion"). 5 I. 6 INTRODUCTION On December 22, 2008, the Court certified Plaintiffs' monopolization, attempted

7 monopolization, and state law claims. Docket No. 196 at 1-2. The Court opted to defer, however, 8 ruling on certification of Plaintiffs' Section 1 tying claims, and invited a Rule 12(b) or Rule 12(c) 9 motion on two specific issues: 10 11 12 13 Docket No. 196 at 6-7. 14 Apple in its Rule 12(c) motion impermissibly and futilely strays far beyond these two 15 designated questions. As to the two specified issues of concern, both were correctly decided by the 16 Court when it denied Apple's earlier motions to dismiss. Supreme Court and Ninth Circuit 17 precedent squarely support the propositions that: (1) separate availability of the tying and tied 18 products is not fatal to a Section 1 claim and (2) proof of coercion on an individual basis is not 19 required. See, e.g., Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 462, 112 S. Ct. 20 2072 (1992); N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 78 S. Ct. 514 (1958); Moore v. Jas H. 21 Matthews & Co., 550 F.2d 1207, 1217 (9th Cir. 1977). No matter how innovative Apple's products, 22 Apple's conduct remains constrained by Section 1 of the Sherman Act; though Apple's products 23 may involve modern technology, Plaintiffs' claims are soundly premised on existing and controlling 24 antitrust precedent. Despite Apple's claim to the contrary, sustaining the Section 1 claims does not 25 require any "expansion" of tying law. 26 27 28
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(1) Can coercion sufficient to support a Section 1 tying claim exist where there is no requirement that the tying product and tied product be purchased together? (2) Must such coercion be proved on an individual basis, such that each individual consumer of the tied product must prove that he or she was forced to purchase the tied product?

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1 II. 2

SUMMARY OF PLAINTIFFS' TYING CLAIMS Plaintiffs allege that Apple, through iTunes, holds market power in the sale of digital audio

3 and video files (collectively, "iTunes files"), which it exploited by tying the sale of iTunes files and 4 the sale of iPods, Apple's portable digital media players capable of playing such files. Complaint, 5 ¶21.1 Apple achieved this technological tie by encrypting the iTunes files with digital rights 6 management ("DRM") technology called "FairPlay," so that the iTunes files could be portably 7 played only on the portable digital media players manufactured by Apple (collectively, "iPod"). 8 Complaint, ¶¶41-44. Plaintiffs contend that Apple thereby necessarily constrained the iTunes 9 customer's choice of portable digital media players.2 Id. For the same reason, the only replacement 10 for a broken iPod that can play an iTunes customer's existing library of iTunes files would be 11 another iPod. Complaint, ¶44. Plaintiffs allege that Apple's conduct deterred competition in the 12 portable player market and allowed it to charge supracompetitive prices to all purchasers of iPods, 13 including those who never purchased any iTunes files. Complaint, ¶¶22, 72, 73. 14 III. 15 APPLICABLE LEGAL STANDARDS Apple chose to file its motion under Rule 12(c), which provides that "[a]fter the pleadings are

16 closed but within such time as not to delay the trial, a party may move for judgment on the 17 pleadings." Fed. R. Civ. P. 12(c). As with a motion to dismiss, the court must accept the allegations 18 as true and must otherwise construe the complaint in the light most favorable to the plaintiff. In re 19 Live Concert Antitrust Litig., 247 F.R.D. 98, 150 (C.D. Cal. 2007). "Judgment `may only be granted 20 when the pleadings show that it is beyond doubt that the plaintiff can prove no set of facts in support 21 22 See Consolidated Complaint for Violations of the Sherman Antitrust Act, Clayton Act, Cartwright Act, California Unfair Competition Law, Consumer Legal Remedies Act, and California 23 Common Law of Monopolization, filed April 19, 2007 ("Complaint"). 24 2 Despite the fact that Apple now offers FairPlay DRM free audio files for sale on iTunes, with existing libraries locked in. The previously purchased 25 purchasers remain encrypted with of iTunes audio files remainpurchaser pays an additional $0.30 per audio files Apple's FairPlay unless the audio file to remove the 26 the iTunes Store (Jan. existing DRM and "unlock" the file. See Press Release, Changes Coming to 6, 2009), available at www.apple.com/pr/library/2009/01/06itunes.html (explaining that Apple charges $0.30 per audio file or 30% of the album price to remove its FairPlay 27 DRM from previously purchased files). 28
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1 of his claims which would entitle him to relief.'" Enron Oil Trading & Transp. Co. v. Walbrook Ins. 2 Co., 132 F.3d 526, 529 (9th Cir. 1997) (quoting B.H. Goodrich v. Betkoski, 99 F.3d 505, 529 (2d Cir. 3 1996)). 4 IV. 5 6 7 A tying arrangement is "an agreement by a party to sell one product but only on the condition 8 that the buyer also purchases a different (or tied) product, or at least agrees that he will not 9 10 Eastman Kodak Co., 504 U.S. at 462-63 (finding evidence of a tie where purchasers of Kodak parts 11 were forced to agree not to purchase service from a Kodak competitor); 10 Phillip E. Areeda, 12 Herbert Hovenkamp & Einer Elhauge, Antitrust Law: An Analysis of Antitrust Principles and Their 13 Application, ¶1752e (2d ed. 2004) ("[A] tying `agreement' or `condition' is present when the 14 defendant has utilized customers' desire for its product A to constrain improperly their choice 15 between its product B and that of its rivals."). 16 The Supreme Court in Northern Pacific made clear that there is no requirement that the tying 17 and tied products be purchased together. There, the government alleged defendant had illegally tied 18 the lease of land and the shipping of commodities by inserting a "preferential routing clause" in its 19 lease agreements. Id. at 3-4. The "preferential routing clause" required the lessee to use Northern 20 Pacific to ship certain commodities, so long as Northern Pacific's rates were not greater than those 21 offered by competing carriers. Id. at 3. 22 Importantly, this "preferential routing clause" did not obligate the lessee to ship anything at 23 all; nor, were Northern Pacific's shipping customers required to lease land. See id. at 7. Indeed, the 24 lessee of land might never require shipping services, and vice versa. Moreover, it was entirely 25 possible that lessees would use the shipping services of a railroad carrier other than defendant. 26 27 28
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LEGAL ARGUMENT A. Issues Raised by the Court 1. There Is No Requirement Under Section 1 that the Tying and Tied Products Be Purchased Together

purchase that product from any other supplier."3 Northern Pacific, 356 U.S. at 5-6; see also

Unless otherwise noted, emphasis is added and citations are omitted.

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1 Nonetheless, the Supreme Court held that the "preferential routing clause" was per se illegal because 2 it forced buyers to "forgo their free choice" of a competing commodities shipper. Id. at 6. 3 Following Northern Pacific, the Ninth Circuit and other courts have found tying

4 arrangements unlawful under Section 1 despite the lack of an explicit refusal by the defendant to sell 5 the tying product unless the buyer also agreed to buy the tied product. See, e.g., Moore, 550 F.2d at 6 1217 (finding a tie where "each purchaser of a cemetery lot was not absolutely required to buy a 7 marker"); In re Data Gen. Corp. Antitrust Litig., 490 F. Supp. 1089, 1110-11 (N.D. Cal. 1980) 8 (existence of the option to purchase the tying product separately did not defeat plaintiff's tying claim 9 because this "option is more theoretical than real"). 10 As in Northern Pacific, Apple has restrained competition in the market for portable digital

11 media players by imposing a preferential restraint that forces iTunes customers to "forego their free 12 choice" of portable digital media players. Complaint, ¶¶41-44. Regardless of the cost or features of 13 competing portable digital media players, consumers who want to play their iTunes files directly on 14 a portable device must purchase an iPod. Id. Like the land lessees in Northern Pacific, they are 15 deprived of free choice even though, at least initially, they do not buy an iPod. Complaint, ¶¶41-44, 16 50. Apple's repeated refrain that the iPod works without iTunes files, and vice versa, completely 17 misses the point of Plaintiffs' tying claim: an iPod is the only portable digital media player that can 18 directly play iTunes files encrypted with FairPlay DRM.4 19 The same point was made by the Supreme Court in Eastman Kodak, in which independent

20 copy servicer providers alleged that Kodak's policy of selling Kodak copy machine parts (tying 21 product) only to customers who agreed not to purchase copy repair and maintenance services (tied 22 product) from anyone other than Kodak constituted an unlawful tie. 504 U.S. at 459. As a result of 23
4 Moreover, tying law has never required that the defendant 24 with the tying product. See Sheridan v. Marathon Petroleum Co., make the tied product usable only LLC, 530 F.3d 590, 592 (7th Cir. 2008) (explaining that the concerns underlying a tying claim arise "if the tied product is used mainly 25 with the tying product"); see also United States v. Microsoft Corp., 253 F.3d 34, 45 (D.C. Cir. 2001)

where system 26 (tying liability recognizedthe tied defendant sold computer operatingApple isfor purposes other than internet access for which product was created). Here, even forced to concede that the overwhelming majority of iPod owners use the device to play iTunes files. See Docket No. 181 27 at 5. 28
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1 the tie, the independent copy servicer providers were not able to obtain parts and thus were not able 2 to service Kodak copiers. Id. at 458. In deciding whether parts and service were separate products 3 for purposes of a tying claim, the Supreme Court noted that "service and parts have been sold 4 separately in the past and still are sold separately to self-service equipment owners." Id. at 462. The 5 Supreme Court found that a Section 1 tie existed, despite the fact that self-service equipment owners 6 could purchase parts without service, because all purchasers of parts, including the self-service 7 equipment owners, were forced to agree not to buy service from anyone other than Kodak. Id. at 8 463. 9 In an attempt to distinguish Eastman Kodak, Apple completely distorts its facts, arguing that

10 only the purchasers of both parts and service had a tying claim. Apple's Motion at 5-6. However, as 11 discussed above, self-service equipment owners also had a tying claim because they were forced to 12 agree not to purchase the tied product from anyone other than Kodak. Like in Eastman Kodak and 13 Northern Pacific, a tie exists here because although purchasers can buy iTunes files separately, they 14 are forced to agree not to purchase a portable digital media player other than an iPod for direct 15 playback of their iTunes files. 16 Rather than meaningfully distinguish Northern Pacific and Eastman Kodak, Apple relies on

17 Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 540 (9th Cir. 1983), a case which 18 addressed only the question whether the complaint sufficiently pleaded a per se tying claim under 19 Section 1. In Foremost Pro, the plaintiff alleged that Kodak illegally tied the sale of its new camera 20 (tying product) to accompanying products (tied products) because the new camera technology 21 required the use of new Kodak film, and that film could only be processed using Kodak's new 22 chemicals and paper. Id. at 538. The Ninth Circuit declined to hold that "such technological ties" 23 were per se unlawful under Section 1.5 Id. at 542. 24 25 The Ninth Circuit left plaintiff's a 26 tying claim under the "rule ofundecided the question whether the Id. at 543. allegation could statein reason" approach to antitrust law. Unlike the plaintiff in 27 Foremost Pro, however, Plaintiffsandthis action have asserted their tying claim against Apple under both the per se theory of liability under the antitrust rule of reason. Complaint, ¶56. 28
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However, the court suggested that plaintiff's per se tying claim would have survived had

2 plaintiff alleged that the "dominant purpose motivating Kodak's design and introduction of the 110 3 system was to compel purchase of the entire system as a package, rather than to achieve the 4 legitimate goal of marketing new, technologically superior products designed to satisfy consumer 5 demand for smaller, pocket-sized cameras." Id. at 543; see also Areeda, et al., supra, ¶1757a n.7 6 (citing Foremost Pro and stating that plaintiff may have adequately plead a tying claim under these 7 facts). 8 Unlike plaintiff in Foremost Pro, Plaintiffs here allege that Apple's dominant purpose in

9 tying its iPod and iTunes files was to compel customers to purchase both iTunes files and a portable 10 digital media player from Apple. Complaint, ¶¶21, 22. Plaintiffs allege that Apple's decision to use 11 its own proprietary DRM format was to leverage its market power in the market for audio and video 12 digital files to foreclose competition in the market for portable digital media players by ensuring that 13 purchasers of iTunes files would have to also purchase a portable digital media player from Apple. 14 Complaint, ¶¶41-44, 50. 15 Thus, as Professor Areeda acknowledges, Foremost Pro does not foreclose Plaintiffs' tying

16 claim as Apple would like the Court to believe. Areeda, et al., supra, ¶1757a n.7. Instead, Foremost 17 Pro specifically contemplates such a claim where, as here, a defendant uses technology as a highly 18 effective "preferential routing" technique to compel purchase of both the tying and tied products 19 from defendant. See also Northern Pacific, 356 U.S. at 5-6 (tying arrangement is one where plaintiff 20 agreed to limit choice if and when it needed the tied product). 21 The court in Foremost Pro also noted that plaintiff was unable to establish implied coercion

22 under Moore because plaintiff in Foremost Pro did not allege that purchasers were "forced to `accept 23 the tied item and forego possibly desirable substitutes.'" 703 F.3d at 542 n.4. Because, plaintiff 24 alleged that "no competing manufacturers produced chemicals and papers compatible with 25 Kodacolor II film, there could have been no substitutes that Foremost or other photofinishing 26 customers were foreclosed from purchasing." Id. By contrast, Plaintiffs here allege that when other 27 competing online vendors such as RealNetworks managed to sell files that could be played on 28 Apple's iPod, Apple promptly issued a software update that ensured that the only files compatible
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1 with an iPod were those purchased from Apple. Complaint, ¶¶52-54. Plaintiffs allege further that 2 Apple repeatedly issued software changes through iTunes to ensure that competition remained 3 foreclosed. Complaint, ¶55. 4 Apple's assertion that "where products are separately available, tying law does not apply"

5 (Apple's Motion at 5), is thus sorely misguided. See, e.g., Compuware Corp. v. IBM, 259 F. Supp. 6 2d 597, 601 (E.D. Mich. 2002) (permitting plaintiffs to amend their tying claim to allege that despite 7 separate availability, "reasonable customers are forced to purchase the package . . . because of the 8 various tactics used by IBM"); Nobel Scientific Indus. v. Beckham Instruments, 670 F. Supp. 1313, 9 1324 (D. Md. 1986) (establishing that as long as the option provided by the seller to purchase 10 products separately is "not feasible," "[t]here need not be an explicit condition that the buyer of the 11 tying product buy the tied product"); Bogosian v. Gulf Oil Corp., 561 F.2d 434, 450 (3d Cir. 1977) 12 (recognizing that "an illegal tie-in may exist even when the seller has not expressly conditioned the 13 sale of one product upon purchase of another, if the existence of a tie-in can otherwise be established 14 from business conduct"); Adv. Bus. Sys. & Supply Co. v. SCM Corp., 415 F.2d 55, 60 (4th Cir. 1969) 15 (finding that lease agreement was not "reasonable alternative" to tie arrangement).6 16 Alternatively, a cognizable Section 1 tying claim is stated despite the separate availability of

17 the allegedly tied products "where a defendant has established its pricing policy in such a way that 18 the only viable economic option is to purchase the tying and tied product in a single package." 19
6 Apple in its assertion that separate availability is permitted only in "package 20 pricing" cases,is incorrectprice of the package is less than purchase of the products separately. See, where the e.g., Eastman Kodak, 463 (no allegation that price of services together was less 21 expensive than when 504 U.S. atindividually); Moore, 550 F.2d parts and(no allegation that cost of purchased at 1217

cemetery plot and marker were 22 (discussing perceived threat ofless expensive when purchased together); Bogosian, 561 F.2d at 450 termination by franchisor as evidence that plaintiff was forced to accept the tie). The other case Apple cites fares no better in supporting Apple's contention that 23 separate availability defeats Plaintiffs' tying claim. In Schor v. Abbott Labs., 457 F.3d 608, 610 (7th violated the antitrust laws by selling its patented 24 Cir. 2006), plaintiff alleged that defendant was purchased in combination with defendant's ritonavir drug, Norvir, at a discounted price when it protease inhibitor drug. Id. Plaintiff contended that defendant illegally used its monopoly power in the 25 ritonavir drug market to foreclose the market on protease inhibitors. Id. The court stated that this 26 could not be a tie because Norvir, the tying product, was separately available for those who wished to use it in combination with a competing protease inhibitor. Id. By contrast, Plaintiffs here allege for direct playback on competing portable digital media players 27 they could not purchase iTunes filesdoing so. Complaint, ¶¶41-44, 50. because Apple restricts them from 28
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1 Ways & Means, Inc. v. IVAC Corp., 506 F. Supp. 697, 701 (N.D. Cal. 1979), aff'd 638 F.2d 143 (9th 2 Cir. 1981); see also Santa Cruz Med. Clinic v. Dominican Santa Cruz Hosp., No. C93 20613 RMW, 3 1995 WL 853037, at *13 (N.D. Cal. Sept. 7, 1995) (discussing whether purchase of tied product 4 from competitor was "unfeasible or was not seriously contemplated); Amerinet, Inc. v. Xerox Corp., 5 972 F.2d 1483, 1500 (8th Cir. 1992) ("In cases where there is no explicit agreement which 6 conditions the purchase of the tying product upon the purchase of the tied product, an illegal 7 arrangement may still be shown if the defendant's policy makes the purchasing of the tying and tied 8 products together `the only viable economic option. . . .'"). 9 Apple itself relies on Ways & Means, citing the decision for the proposition that "where the

10 products are separately available, tying law does not apply." Apple's Motion at 5. But Apple leaves 11 out a critical proviso. Apple quotes: "there must in fact exist a tie scheme by which purchasers are 12 required to buy one commodity or service in order to obtain a second, distinct commodity or 13 service." Id. (quoting Ways & Means, 506 F. Supp. at 700). However, Apple fails to read on. In 14 fact, the court in Ways & Means went on to state: "This does not end the analysis, however, for 15 plaintiffs are correct in their assertion that separate availability will not preclude antitrust liability 16 where a defendant has established its pricing policy in such a way that the only viable economic 17 option is to purchase the tying and tied products in a single package." 506 F. Supp. at 701. Thus, 18 Ways & Means cannot possibly hold that tying law does not apply where the products are separately 19 available. 20 Nothing in Plaintiffs' Section 1 tying claims, therefore, "violate[s] basic antitrust principals."

21 See Apple's Motion at 7. Instead, Plaintiffs' claims stand on solid foundation of Supreme Court and 22 Ninth Circuit Section 1 tying precedent. Indeed, "the essential characteristic of an invalid tying 23 arrangement lies in the seller's exploitation of its control over the tying product to force the buyer 24 into the purchase of a tied product that the buyer either did not want at all, or might have preferred 25 to purchase elsewhere on different terms." Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 26 12, 104 S. Ct. 1551 (1984); see also Areeda, et al., supra, ¶1753c . As Professor Areeda concludes, 27 "the language of `coercion,' `forcing,' and `voluntariness' should be understood as inviting a 28 specific factual inquiry about whether the defendant has illegitimately constrained buyer choices."
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1 Areeda, et al., supra, ¶1752e. Constrained choice in the tied market imposed by a seller with market 2 power in the tying product market is precisely what Plaintiffs allege here. Apple exploited its market 3 power in digital audio and video files to force consumers to buy Apple's iPods, regardless of their 4 desire to purchase a portable digital media player from a competitor on different terms. Complaint, 5 ¶22. 6 No matter how innovative its products, Apple is not permitted to perpetuate illegal tie-ins that

7 restrict consumers' choices and impede the development of competing products. As discussed 8 above, and as the Ninth Circuit recognized in Foremost Pro, innovation does not amount to 9 immunity from antitrust laws. 703 F.2d at 542-43. 10 11 Completely ignoring controlling Ninth Circuit law, Apple attempts to convince the Court that 12 it somehow stepped outside the box when it recognized that market level coercion is sufficient to 13 sustain a Section 1 tying claim. See Tucker v. Apple Comp., Inc., 493 F. Supp. 2d 1090, 1091 (N.D. 14 Cal. 2006); Slattery v. Apple Comp., Inc., No. C 05-00037 JW, 2005 WL 2204981, at *3 (N.D. Cal. 15 Sept. 9, 2005). Ninth Circuit authority could not be more clear: Plaintiffs need not prove coercion 16 on an individual basis. 17 It is true that "some modicum of involuntariness or coercion is . . . essential to the existence" 18 of an illegal tie-in. Foremost Pro, 703 F.2d at 540. In Fortner Enters., Inc. v. United States Steel 19 Corp., 394 U.S. 495, 504, 89 S. Ct. 1252 (1969), the Supreme Court explained that "the proper focus 20 of concern is whether the seller has the power to . . . impose other burdensome terms such as a tie-in, 21 with respect to any appreciable number of buyers within the market." See also Murphy v. Bus. 22 Cards Tomorrow, Inc., 854 F.2d 1202, 1204 (9th Cir. 1988) ("The essence of an antitrust tying 23 violation is not the seller's unilateral refusal to deal with a buyer who refuses to buy the tied product, 24 but the use by the seller of its `leverage' to force a purchaser to do something that he would not do in 25 a competitive market."); Areeda, et al., supra, ¶1752c ("[w]hile earlier cases suggested that the 26 practical effect must be to prevent the buyer from purchasing any of the tied product from others, 27 28
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2.

Plaintiffs Need Not Allege Coercion on an Individual Basis to State a Viable Section 1 Tying Claim

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1 subsequent cases were clearly satisfied with the practical effect of preventing some purchases from 2 defendant's rivals that might have otherwise been made.") (emphasis in original). 3 This is precisely the holding espoused by the Ninth Circuit in Moore, when it wrote that,

4 although a "modicum" of coercion was required, "the Supreme Court's opinions support[] the view 5 that coercion may be implied from a showing that an appreciable number of buyers have accepted 6 burdensome terms, such as a tie-in, and there exists sufficient economic power in the tying market." 7 550 F.2d at 1217. In Moore, it made no difference that each purchaser of the tying product (the 8 cemetery lot) was not absolutely required to buy the tied product (a marker), because there was no 9 need to prove individual coercion in the purchase of the tied product. Id. The Ninth Circuit could 10 hardly have stated the point more bluntly: "A showing of an onerous effect on an appreciable 11 number of buyers coupled with a demonstration of sufficient economic power in the tying market is 12 sufficient to demonstrate coercion." Id. 13 The Ninth Circuit has not retreated from its holding in Moore. See, e.g., Cascade Health

14 Solutions v. Peacehealth, 515 F.3d 883, 914 (9th Cir. 2008) (citing Moore for the proposition that 15 "coercion may be implied from a showing that an appreciable number of buyers have accepted 16 burdensome terms, such as a tie-in"); Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1161 17 (9th Cir. 2003) (same); Foremost Pro, 703 F.2d at 542 n.4 (citing Moore for the proposition that 18 coercion may be implied); Betaseed, Inc. v. U&I, Inc., 681 F.2d 1203, 1221-22, 1222 n.35 (9th Cir. 19 1982) (addressing Moore and Northern Pacific at length). 20 Nevertheless, Apple argues that the Court's previous holdings are improper because

21 Plaintiffs themselves have not been individually coerced. Apple's Motion at 12. Apple states, "[n]o 22 case, however, has ever ruled that a non-coerced customer may assert a tying claim on the ground 23 that someone else might have been coerced." Id. Besides being factually incorrect, this contention 24 again completely misses the point. Plaintiffs may establish the necessary modicum of coercion 25 where some appreciable number of the class members have been coerced. Cascade Health, 515 F.3d 26 at 914 (holding that summary judgment for defendant on plaintiff's tying claim was improper where 27 there was sufficient evidence that defendant's practice "may have coerced some insurers" to accept 28 the tie). This is because under the concept of market level coercion, where a sufficient number of
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1 buyers of the tying product have been forced to accept the tied item instead of a possibly desirable 2 substitute, injury results for all buyers of the tied product. See Moore, 550 F.2d at 1212 ("the public 3 is harmed by the adverse effect on the market for the tied product"). 4 This is exactly what Plaintiffs allege here; all purchasers of iPods were injured because an

5 appreciable number of iTunes customers accepted Apple's tie-in, resulting in supracompetitive 6 prices for all iPods. Complaint, ¶¶22, 72, 73. As Plaintiffs' own testimony reveals, Plaintiffs 7 themselves have been forced by Apple's technological tie-in policy to purchase an iPod over a 8 possibly more desirable substitute.7 See Bonny Decl., Ex. 1, Deposition of Melanie Tucker, taken 9 October 26, 2007 at 12:20-13:5 (explaining that she purchased a second iPod after her first iPod 10 broke because her existing iTunes files were not compatible with other MP3 players); Bonny Decl., 11 Ex. 2, Deposition of Mariana Rosen, taken January 24, 2007 at 89:8-90:5 (explaining that she did not 12 purchase something other than an iPod because she already had an existing iTunes library); see also 13 Complaint, ¶43 ("[C]onsumers who have purchased Online Music from Apple will have no choice 14 but to buy an iPod if they want to play their music directly on a Digital Music Player."). 15 Plaintiffs' argument for market level coercion is also supported by the unrebutted testimony

16 of an actual competitor in the portable digital media player market. As the Declaration of Lee 17 Morse, the Director for Emerging Technologies at Creative Labs, Inc., a competing manufacturer of 18 portable digital music player's, makes clear: "songs purchased from the iTunes Store cannot be 19 directly recorded onto or played back on Creative's line of portable digital music players, which 20 Creative believes has a negative impact on its sale of digital music players." Docket No. 96, ¶8; see 21 also Complaint, ¶75 (alleging competitors in the portable digital media player market were 22 foreclosed by Apple's anticompetitive conduct). Thus, whether viewed from the perspective of 23 consumers or competitors, Plaintiffs have alleged sufficient facts (and introduced sufficient 24 evidence) to properly state a Section 1 claim based on a theory of market level coercion. 25 26 See Declaration of Bonny E. Sweeney in Support of Plaintiffs' Opposition to Defendant's Motion for Judgment on the Pleadings as to Plaintiffs' Tying Claims, filed concurrently ("Bonny 27 Decl."). 28
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1

Apple's attempts to distinguish Moore are unavailing. Apple's Motion at 14-15. With little

2 explanation, Apple asserts that unlike here, an "actual tie and actual coercion" existed in Moore. Id. 3 at 14. But, it can hardly be said that the alleged tie in Moore was anymore of an "actual tie" than 4 that alleged here. In Moore plaintiff alleged a tie between the purchase of cemetery lots (tying 5 product) and memorial markers (tied product) and the purchase of cemetery lots (tying product) and 6 installation service of the cemetery (tied product). 550 F.2d at 1212. However, not all purchasers of 7 cemetery lots were required to purchase memorial markers. Id. Nonetheless, the Moore court held 8 that plaintiff had established the existence of a tie. Id. at 1217. The same is true here. An actual tie 9 exists because Apple has imposed the same technological restraints on all class members regardless 10 of whether some purchasers of iTunes files have not purchased an iPod and vice versa.8 Complaint, 11 ¶¶41-44. Additionally, the Ninth Circuit in Moore explicitly held that "actual coercion" was not 12 required and in fact found that plaintiff was able to satisfy the coercion requirement by proof that "an 13 appreciable number of buyers" forewent desirable substitutes and accepted the tie. 550 F.2d at 121614 17. As stated above, Plaintiffs allege at least the same level of coercion here. Complaint, ¶22, 72, 15 73. 16 Moreover, Apple completely misunderstands Moore's significance and argues that Moore

17 "cannot mean that coercion can be inferred from the mere fact that consumers buy the two products 18 at issue." Apple's Motion at 14. Plaintiffs have not asked for any such inference. Plaintiffs instead 19 cite Moore for its clear holding that coercion can be established at the market level by proof that "an 20 appreciable number" of purchasers of the tying product accepted the terms of the tie-in and thus also 21 purchased the tied product. Moore, 550 F.2d at 1217. Apple itself concedes that a significant 22 23 24 25 26 27 28
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFFS' TYING CLAIMS - C-05-00037-JW(RS)
8

Similarly, Apple's citations to Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976) and Siegel v. Chicken Delight, Inc., 448 F.2d 45 (9th Cir. 1971) do not demonstrate any more of a tie than what Plaintiffs allege here. In Hill, plaintiffs alleged a tie between the purchase of a vacuum cleaner and membership services. 535 F.2d at 1354. The Hill court found the existence of a tie despite the facts that not all purchasers of the vacuum were coerced. Id. at 1355. In Siegel, franchisees alleged a tie between franchise lease agreements and cooking equipment, food items, and packaging. 448 F.2d at 46. As recognized by the court in Moore, the fact that plaintiffs did not establish that each of the franchisees was required to purchased the cooking equipment, food items and packaging as a condition of the agreement was not fatal to their tying claims. 550 F.2d at 1217.

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1 number of iPod purchasers use iTunes. See Docket No. 181 at 6. Nevertheless, whether, after 2 discovery, Plaintiffs can prove that an "appreciable number" of iTunes purchasers also purchased an 3 iPod is a matter that cannot be resolved on this Rule 12(c) motion. See Enron Oil Trading & 4 Transp. Co., 132 F.3d at 529. Here, Plaintiffs allege the existence of a technological tie and, in 5 accordance with Moore, coercion on a market level. They have also demonstrated through expert 6 testimony submitted in support of class certification, how market level coercion can be established. 7 Docket No. 166-2 (Declaration of Roger G. Noll) at 38, 42. 8 The Court properly relied on Murphy as support for the suitability of market level coercion.

9 Tucker, 492 F. Supp. 2d at 1099. In Murphy, plaintiff franchisees alleged that they were required by 10 defendant franchisor to purchase equipment as a condition of the franchise lease. 854 F.2d at 1204. 11 The Ninth Circuit held that plaintiffs did not establish the necessary level of coercion because it was 12 not alleged "that any person, let alone plaintiffs were persuaded by [defendant]" to accept the 13 conditions of the tie. Id. While Murphy is factually distinguishable, the Ninth Circuit's reasoning is 14 in accord with Moore where the court found coercion is satisfied where some but not all consumers 15 accepted the tie. See Moore, 550 F.2d at 1217; Cascade Health, 515 F.3d at 914. 16 Further, Apple argues that market level coercion in a class action is improper because "in the

17 absence of an express contractual tie that applies to all purchasers, class certification is improper 18 because of the need for each individual customer to prove that he or she was coerced." Apple's 19 Motion at 12. All of the cases cited by Apple involve challenges to contractual ties that were not 20 uniformly imposed and enforced across the class.9 But here, Plaintiffs' tying claim is based on a 21 22 23 24 25 26 27 28 See Freeland v. AT & T Corp., 238 F.R.D. 130, 155 (S.D.N.Y. 2006) (no provision in class members' cell phone service plans requiring purchase of handset); Little Caesar Enters., Inc. v. Smith, 895 F. Supp. 884, 904 (E.D. Mich. 1995) (no express contractual tie existed in franchise contract); Colburn v. Roto-Rooter Corp., 78 F.R.D. 679, 681-82 (N.D. Cal. 1978) (no evidence tying provision in plaintiff's contract was enforced throughout the class); Smith v. Denny's Rests., Inc., 62 F.R.D. 459, 461 (N.D. Cal. 1974) (franchise agreement did not expressly create tie-in policy); Chase Parkway Garage Inc. v. Subaru, Inc., 94 F.R.D. 330, 332 (D. Mass. 1982) (because no express tying provision existed, proof defendants enforced such a policy would require individual proof); Ungar v. Dunkin' Donuts of Am., Inc., 531 F.2d 1211, 1216 (3d Cir. 1976) (no existence of express contractual tie); Daniels v. Amerco, No. 81 CIV 3801 (RLC), 1983 WL 1794, at *1 (W.D.N.Y. Mar. 10, 1983) (alleged tie based on verbal orders or "indirect strategems" not contractual provisions); Waldo v. N. Am. Van Lines, Inc., 102 F.R.D. 807, 814 (W.D. Pa. 1984) (no express contractual tie-in
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFFS' TYING CLAIMS - C-05-00037-JW(RS)
9

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1 technological restriction ("FairPlay") that was allegedly imposed on all iTunes file purchasers, 2 requiring them to purchase an iPod for direct playback on a portable digital media player. 3 Complaint, ¶¶41-44, 50. No further allegation of coercion is required. See Moore, 550 F.2d at 1217; 4 Hill, 535 F.2d at 1355 (an "unremitting policy of tie-in" and sufficient market power constitutes 5 requisite coercion). 6 Alternatively, as explained above, even absent an express contractual provision, a plaintiff

7 can prove a Section 1 tie by demonstrating that purchase of the tying and tied products together is 8 the only "viable economic option." See, e.g., Ways & Means, 506 F. Supp. at 701 (finding that 9 although an express tying arrangement did not exist because the tying product was available outside 10 the tie, a tie could be established by proof that purchase of the tying and tied products together was 11 the "only viable economic option"). In fact in Moore, the Ninth Circuit implied coercion even 12 though all purchasers were not contractually obligated to purchase the tied product. 550 F.2d at 13 1217 (only five out of eight cemeteries contractually required the sale of markers and cemetery lots). 14 15 B. Issues Raised by Apple

Although the Court explicitly identified the two narrow issues to be addressed in Apple's

16 motion, Apple raises additional substantive challenges to Plaintiffs' federal and state tying claims. 17 Even were the Court is willing to consider such arguments, they are substantively meritless. 18 19 1. Plaintiffs Allege Actionable Federal Law Claims

Apple argues that Plaintiffs' tying claim is improper under Section 1 for lack of "concerted

20 action." See Apple's Motion at 4. Section 1 liability for unilateral tying arrangements is, however, 21 hardly a novel concept. See, e.g., Toulumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1157-58 (9th 22 Cir. 2001) (affirming Section 1 tying claim where hospital tied the purchase of C-section services 23 and obstetrical services); Microsoft Corp., 253 F.3d at 84 (recognizing Section 1 liability for 24 Microsoft's tie of Windows and Internet Explorer); Nobel Scientific Indus., Inc., 670 F. Supp. at 25 26 provision existed in franchise contract); Olmstead v. Amoco Oil Co., No. 76-247-Orl-Civ-Y, 1977 at *3 27 WL 1416,of the(M.D. Fla. June 16, 1977) (absent express tie-in in lease agreement, proof based on operation relevant program and pressure by defendant on class members was insufficient). 28
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1 1324 (holding that unilateral conduct may constitute a tying arrangement under Section 1). Such 2 arrangements can unquestionably constitute an unreasonable restraint on trade actionable under 3 Section 1. Ariz. v. Maricopa County Med. Soc., 457 U.S. 332, 344 n.15, 102 S. Ct. 2466 (1982) 4 (recognizing that a tying arrangement may be an unreasonable restraint on trade under Section 1). 5 In particular, Section 1 encompasses unilateral tying arrangements where defendant agrees

6 "`to sell one product but only on the condition that the buyer also purchasers a different (or tied) 7 product, or at least agrees that he will not purchase that product from any other supplier.'" Eastman 8 Kodak Co., 504 U.S. at 461 (quoting Northern Pacific, 356 U.S. at 5-6). That is precisely what is 9 alleged here; through deliberate technological impediments Apple effectively forced purchasers of 10 iTunes files to agree not to purchase a portable digital media player from a competing manufacturer. 11 Complaint, ¶¶41-44, 50. Accordingly, Plaintiffs' tying claim is appropriately pled under Section 1. 12 13 2. Plaintiffs Allege Actionable State Law Claims

Apple also contends that Plaintiffs' state law claims under the Cartwright Act (Cal. Bus. &

14 Prof. Code. §16700 et seq.), California Unfair Competition Law (Cal. Bus. & Prof. Code §17200 et 15 seq.), and California Civil Legal Remedies Act (Cal Civ. Code. §1750 et seq.) fail for the same 16 reasons as Plaintiffs' Section 1 tying claim. Plaintiffs incorporate the same allegations as alleged 17 under Section 1 and 2 of the Sherman Act as the basis for these claims. Complaint, ¶¶115, 119, 127. 18 Apple correctly notes that the analysis under California's antitrust law mirrors the analysis

19 under federal law because the Cartwright Act was modeled on the Sherman Act. Tuolumne, 236 20 F.3d at 1160. Thus, for the same reasons as stated above, Plaintiffs' Cartwright Act tying claim 21 survives because proof of individual coercion is not required and the separate availability of the 22 tying and tied products is not fatal. See Moore, 550 F.2d at 1217. 23 Additionally, Plaintiffs' §17200 and §1750 claims are premised on the alleged antitrust

24 violations and have been properly certified. Complaint, ¶121 ("Apple's actions are unlawful and 25 unfair because it has violated, inter alia, the Sherman Antitrust Act. . . ."); Complaint ¶131 ("Apple 26 is a monopolist [and] [t]he unnecessary technological restrictions it places on its products offer no 27 benefit to consumers while preventing them from us[ing] a competitor's Digital Music Player or 28 online store.").
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1 V. 2

CONCLUSION For each and all of the foregoing reasons, the Court should deny Apple's Motion. Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP BONNY E. SWEENEY

3 DATED: March 2, 2009 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

s/ Bonny E. Sweeney BONNY E. SWEENEY 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) THE KATRIEL LAW FIRM ROY A. KATRIEL 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: [phone] (fax) Co-Lead Counsel for Plaintiffs 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: [phone] (fax) BRAUN LAW GROUP, P.C. MICHAEL D. BRAUN 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Telephone: [phone] (fax) MURRAY, FRANK & SAILER LLP BRIAN P. MURRAY JACQUELINE SAILER 275 Madison Avenue, Suite 801 New York, NY 10016 Telephone: [phone] (fax)
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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
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S:\CasesSD\Apple Tying\BRF00057838.doc

GLANCY BINKOW & GOLDBERG LLP MICHAEL GOLDBERG 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Telephone: [phone] (fax) Additional Counsel for Plaintiffs

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1 2

CERTIFICATE OF SERVICE I hereby certify that on March 2, 2009, I electronically filed the foregoing with the Clerk of

3 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 March 2, 2009. 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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