"The Apple iPod iTunes Anti-Trust Litigation"

Filing 258

STIPULATION AND ORDER AS MODIFIED BY THE COURT CONTINUING HEARING DATES re (252 in 5:05-cv-00037-JW) Stipulation. Set/Reset Deadlines as to (236 in 5:05-cv-00037-JW) MOTION to Modify Injunctive Relief Class Definition to Include iTMS Purchasers, (240 in 5:05-cv-00037-JW) MOTION for Decertification of Rule 23(B)(3) Class, (244 in 5:05-cv-00037-JW) MOTION for Reconsideration, (250 in 5:05-cv-00037-JW) SEALED MOTION are continued from 10/5/2009 to 11/9/2009 09:00 AM in Courtroom 8, 4th Floor, San Jose. PLEASE NOTE: The hearing on Apple's Motion for Judgment on the Pleadings re the Rule of Reason(229 in 5:05-cv-00037-JW) shall remain on calendar for 10/5/2009, at 9 a.m. Apple shall file its reply brief on 9/18/2009.Please see Order for further specifics. Signed by Judge James Ware on 9/16/2009. (ecg, COURT STAFF) (Filed on 9/16/2009) Modified docket text on 9/21/2009 (ecg, COURT STAFF).

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THE KATRIEL LAW FIRM ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] Co-Lead Counsel for Plaintiffs [Additional counsel appear on signature page.]

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION.

Case No. C 05-00037 JW C 06-04457 JW1 C 07-06507 JW STIPULATION AND [PROPOSED] ORDER RE SCHEDULE FOR BRIEFING AND HEARING PENDING MOTIONS

Whereas three motions have been noticed for hearing on October 5, 2009 related to the Court's orders of July 17, 2009 (Doc. 228) and May 15, 2009 (Doc. 213), i.e., Apple's motion for reconsideration of the Rule 23(b)(2) class for injunctive relief (Doc. 245/250), plaintiffs' motion to modify their injunctive relief class definition to include iTS customers (Doc. 236), and Apple's motion for judgment on the pleadings re rule of reason tying claim (Doc. 229); _______________________________________________________________________________ 1 The Court notes that the parties'mistakenly included case no. C-06-04457 JW, Melanie Tucker v. Apple Computer, Inc.RE SCHEDULE STIP. on their double captioned Stipulation. The Tucker action is a member case to the consolidated action, C-05-0037-JW", The Apple iPod iTunes Anti-Trust Litigation". The SFI-618730v1 Case No. C-05-00037-JW Court notes that the related action, C-07-06507-JW, Stacie Somers v. Apple Inc. should have been the correct case to be included on the double -1caption. Counsel should correct any future pleadings that may be double captioned to reflect the correct case numbers and titles.

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COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) THOMAS R. MERRICK (177987) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) [e-mail] [e-mail] [e-mail]

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Whereas, at the Court's request, the parties in this case and the coordinated indirect purchaser case, Somers v. Apple, Inc., Case No. C 07-6507 JW, have submitted additional briefing regarding the intersection of the claims in the direct and indirect purchaser actions, the scope of the injunctive relief classes, and the relationship between their injunctive relief theories and the asserted theories of liability; Whereas Apple has also noticed its motion to decertify the Rule 23(b)(3) class for damages (Doc. 240) for October 5, 2009; Whereas plaintiffs have requested a continuance of the briefing and hearing schedule for that motion so that they can depose Apple's expert and so that their expert, if appropriate, can prepare a report; Whereas plaintiffs' expert is unavailable this month and most of October and plaintiffs' lead counsel is scheduled to be on the East Coast for family and business reasons on October 4 and 6, 2009, and Apple is agreeable to modifying the briefing and hearing schedule; Whereas Plaintiffs have begun the process of meeting and conferring with Apple on the proposed content of and a plan for dissemination of class notice, if any; and Whereas the parties believes that it may be advantageous not to hear all of these motions at a single hearing and have been advised that the Court's next available hearing date after October 5 is November 9, 2009; IT IS HEREBY STIPULATED by the parties, subject to Court approval, as follows: 1. The hearing on Apple's motion for reconsideration of the Rule 23(b)(2) class and plaintiffs' motion to expand the class definition to include iTS purchasers, shall be continued from October 5 to November 9, 2009, at 9 a.m., with opposition briefs to be filed September 28 and replies to be filed by October 12, 2009. 2. The hearing on Apple's motion for judgment on the pleadings re the rule of reason remain on calendar as October 5 to for October 2009, at 9 a.m. Apple shall tying claim shall also be continued frompreviously setNovember 9,5, 2009 at 9 a.m. Apple shall September 18, 2009. file its reply brief on September 21, 2009. 3. If the Court intends to hold a hearing on the additional issues as to which the Court requested additional briefing, including those raised in the indirect purchaser's brief filed
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STIP. RE SCHEDULE Case No. C-05-00037-JW

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Aug. 31, 2009 (Dkt. No. 83), the hearing shall be set for November 9, 2009, at 9 a.m. Any additional briefing shall be filed by September 28, 2009. 3. The hearing on Apple's motion to decertify the Rule 23(b)(3) class shall be continued November 9, 2009, at 9 a.m. from October 5 to December 21, 2009 at 9 a.m. Plaintiffs' opposition papers shall be filed Briefing for 2009, with shall be completed on they will October 19, 2009. November 9,this Motion the understanding that or before depose Apple's expert prior thereto and that, if they file ofsupplemental expert report, they willwill set a separateavailable for deposition In light a these pending Motions, the Court make their expert hearing date with by Apple shortly thereafter. Apple's reply papers shall be filed by December 7, 2009. respect to any class notice once all of these Motions are resolved. 4. To the extent the parties cannot resolve any issues regarding the content and method of dissemination of class notice, if any, plaintiffs' request to send class notice shall also be heard on December 21, 2009, at 9 a.m. Their moving papers shall be filed on October 26, 2009; Apple's response shall be filed on November 16, 2009; and any reply shall be filed by November 30, 2009. Dated: September 14, 2009 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK /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

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STIP. RE SCHEDULE Case No. C-05-00037-JW

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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) 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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STIP. RE SCHEDULE Case No. C-05-00037-JW

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DATED: September 14, 2009

JONES DAY

/s/ Robert A. Mittelstaedt ROBERT A. MITTELSTAEDT 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] (fax) Attorneys for Defendant, Apple, Inc.

IT IS SO ORDERED.AS MODIFIED. Dated: September ___,2009 September 16, 2009 ______________________________ Hon. James Ware

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STIP. RE SCHEDULE Case No. C-05-00037-JW