"The Apple iPod iTunes Anti-Trust Litigation"

Filing 260

Memorandum in Opposition re 259 MOTION Briefing Schedule re Motion to Decertify filed byMelanie Tucker. (Attachments: # 1 Proposed Order)(Sweeney, Bonny) (Filed on 9/23/2009)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 260

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1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 JOHN J. STOIA, JR. (141757) BONNY E. SWEENEY (176174) 3 THOMAS R. MERRICK (177987) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: [phone] (fax) [e-mail] 6 [e-mail] [e-mail] 7 THE KATRIEL LAW FIRM 8 ROY A. KATRIEL (pro hac vice) 1101 30th Street, N.W., Suite 500 9 Washington, DC 20007 Telephone: [phone] (fax) [e-mail] 11 Co-Lead Counsel for Plaintiffs 12 [Additional counsel appear on signature page.] 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW(RS) ) 17 LITIGATION ) CLASS ACTION ) 18 ) OPPOSITION TO APPLE'S This Document Relates To: ) ADMINISTRATIVE MOTION TO SET 19 ) BRIEFING SCHEDULE FOR CHAROENSAK v. APPLE 20 ) DECERTIFICATION MOTION COMPUTER, INC., ) 21 ) No. C-05-00037-JW ) 22 ) TUCKER v. APPLE COMPUTER, ) INC., 23 ) ) No. C-06-04457-JW 24 ) 25 26 27 28

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Direct Purchaser Plaintiffs oppose Apple's Administrative Motion to Set Briefing Schedule

2 ("Administrative Motion") and request that the Court either retain the schedule set in its September 3 16, 2009 Order, or extend Apple's deadline to file its reply. Dkt. No. 258. Alternatively, the Court 4 should deny Apple's decertification motion as premature without prejudice to Apple's right to bring 5 a decertification motion at an appropriate time in the litigation, after completion of discovery. 6 I. 7 INTRODUCTION On August 31, 2009, without any prior notice to Direct Purchaser Plaintiffs and without any

8 attempt to negotiate a briefing schedule, Apple filed and served its motion to decertify the damages 9 class that this Court certified on December 22, 2008. Apple served this motion at a time when it 10 knew that Direct Purchaser Plaintiffs were preparing, in accordance with the Court's prior orders, 11 briefs on Apple's Motion for Reconsideration of Plaintiffs' Rule 23(b)(2) Class and Plaintiffs' 12 Motion to Modify their Injunctive Relief Class and Response to the Court's July 17, 2009 Order as 13 to Injunctive Relief. Dkt. Nos. 253, 236, 238. Furthermore, Apple served its motion just prior to the 14 long Labor Day weekend. Even though Apple had had three months to prepare its response to the 15 motion to certify the class, Apple served its decertification motion 35 days prior to the noticed 16 hearing date, giving Direct Purchaser Plaintiffs just two weeks to depose Apple's expert, obtain a 17 supplemental declaration from their own expert, if appropriate, and prepare an opposition brief. 18 Notably, at the time it filed its motion, Apple contemplated having one week to prepare its reply. 19 In its Administrative Motion, Apple seeks unfairly to shorten the time Direct Purchaser

20 Plaintiffs have to respond to the motion to decertify, even though Apple's counsel is well aware of 21 the scheduling constraints on Direct Purchaser Plaintiffs' expert and counsel. Moreover, in its 22 Administrative Motion, Apple has mischaracterized the discussions of the parties. Apple's motion is 23 nothing less than an attempt to gain an improper advantage in this litigation. It should be denied. 24 Alternatively, this Court should deny Apple's decertification motion without prejudice to

25 Apple's right to bring the motion again, at an appropriate time in the litigation. Besides being 26 meritless, Apple's motion is also premature. Because Apple filed its decertification motion before 27 producing any discovery materials beyond those relied upon in the prior class certification 28
OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

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1 proceeding, Apple can point to no new facts, new law, or change in the status of the parties that 2 would justify decertifying the class. Thus, Apple's decertification motion should be denied. 3 4 A. Apple's Decertification Motion is Meritless and Premature

Apple's decertification motion is based on this Court's order denying certification of an

5 indirect purchaser class. Relying solely on an expert report that is little more than excerpts from the 6 report Apple relied upon in Somers v. Apple, No. C 07-6507 JW (N.D. Cal.) (and which responded to 7 indirect purchaser plaintiff's expert, Dr. French), Apple now challenges, for the first time, the expert 8 report of Direct Purchaser Plaintiffs' economist, Professor Roger G. Noll of Stanford University. 9 Dkt. No. 166, Ex. 1. Notably, Apple failed to submit an expert report in support of its opposition to 10 Direct Purchaser Plaintiffs' class certification motion, even though Apple's expert, Michelle Burtis, 11 had already been retained, and had reviewed Professor Noll's report and deposition transcript. 12 Sweeney Decl.1, ¶12; id., Ex. E. 13 Apple's motion is utterly meritless. It does not even attempt to meet the standards for

14 decertification, which are well-established in the Ninth Circuit. To justify decertification, a 15 defendant must raise some new controlling law or facts to support its argument that the initial class 16 determination was in error. Church v. Consol. Freigthtways, Inc., 137 F.R.D. 297, 303 (N.D. Cal. 17 1991) ("`nothing would appear to prevent a court from modifying or reversing a decision on "similar 18 situations" at a later time in an action, as new facts emerge'"); O'Connor v. Boeing N. Am., Inc., 197 19 F.R.D. 404, 410 (C.D. Cal. 2000) ("Sometimes, however, developments in the litigation, such as the 20 discovery of new facts or changes in the parties or in the substantive or procedural law, will 21 necessitate reconsideration of the earlier order and the granting or denial of certification or 22 redefinition of the class.") (quoting Cook v. Rockwell Int'l Corp., 181 F.R.D. 473 (D. Colo. 1998)). 23 This is why decertification motions are filed after discovery is completed. See, e.g., Gerlach v. 24 Wells Fargo & Co., No. C 05-0585 CW, 2006 WL 824652, at *2 (N.D. Cal. Mar. 28, 2006); see also 25 Gonzales v. Arrow Fin. Servs. LLC, 489 F. Supp. 2d 1140, 1154 (S.D. Cal. 2007) (defendant must 26 Declaration of Bonny E. 27 Motion SeeSet Briefing Schedule for Sweeney in Support of Opposition to Apple's Administrative to Decertification Motion ("Sweeney Decl."), filed currently. 28
OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)
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1 meet a "heavy burden"). See also Barner v. Harvey, No. 95 C 3316, 2000 WL 1369636, at *2 (N.D. 2 Ill. Sept. 15, 2000); 7 Charles R. Wright & Arthur R. Miller, Federal Practice & Procedure, §1785.4 3 (2009); Kramer v. Scientific Control Corp., 67 F.R.D. 98, 99 (E.D. Pa. 1975) ("proponents of 4 revocation or modification of a class-action Order should, at a minimum, show some newly 5 discovered facts or law in support of their desired action"). 6 Yet, Apple can point to no new facts, no changes in the status of the parties, and no new law.

7 Rather, Apple is having second thoughts about its previous tactical decisions. In short, Apple wants 8 a "do-over." This is not permitted under Rule 23. 9 Furthermore, Apple and its expert base the decertification motion on the argument that Direct

10 Purchaser Plaintiffs and their expert have not yet conducted the statistical analyses proposed by 11 Professor Noll in his report. Dkt. No. 240 at 7; Dkt. No. 241, ¶8. This argument is disingenuous in 12 the extreme. As the Court may recall, at Apple's request and over Direct Purchaser Plaintiffs' 13 objection, the Court bifurcated discovery. Accordingly, Direct Purchaser Plaintiffs modified their 14 initial discovery requests. Even as to this limited discovery Apple objected to every single request 15 on the grounds that it was not relevant to class certification (see Sweeney Decl., ¶¶2, 3), and Direct 16 Purchaser Plaintiffs were forced to file a motion to compel. Dkt. No. 137. Apple took the position 17 that Direct Purchaser Plaintiffs were not entitled, among other things, to discovery of the data that 18 Professor Noll would need to conduct the statistical analyses described in his report, because such 19 information was not, according to Apple, relevant to class certification. Sweeney Decl., ¶¶5, 7. Just 20 prior to the hearing on the motion to compel, Apple proposed resolving the dispute through a 21 compromise. Ultimately, Direct Purchaser Plaintiffs agreed that Apple could produce exemplars of 22 the requested data, as opposed to all of the data, so that Professor Noll could make a determination 23 whether the data, when it was eventually produced, would suffice. Direct Purchaser Plaintiffs agreed 24 to this compromise because Apple's counsel, orally and in writing, stated his agreement with the 25 legal principle that, at the class certification stage, Direct Purchaser Plaintiff is not required to have 26 completed its damages study, but rather is required to show that Direct Purchaser Plaintiffs can rely 27 on common evidence to show class-wide impact. See In re Dynamic Random Access Memory 28
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1 (DRAM) Antitrust Litig., No. M 02-1486 PJH, 2006 WL 1530166, at *8-*9 (N.D. Cal. 2006). As 2 Apple's counsel said: 3 4 5 To be clear, I did not agree to, or anticipate, that we would produce the actual data beyond an exemplar of the type of data that are available. I understood that your expert wanted to know what type of data is available rather than acquiring all the data now because he does not intend to actually produce a damage study at this point. That's the compromise we reached, and I thought that met your pre-cert needs.

6 Sweeney Decl., Ex. C (emphasis added). 7 Now, in an abrupt and transparently self-serving about-face, Apple urges this Court to

8 decertify the damages class on the grounds that Direct Purchaser Plaintiffs have not yet completed 9 the relevant statistical analyses necessary to prove the merits determination of impact. 10 Further, Apple continues to drag its feet on discovery. Immediately after the discovery stay

11 was lifted, Direct Purchaser Plaintiffs renewed their request for the data that Apple had previously 12 refused to produce. Id., ¶15. To date, Apple has not produced a single document or a single witness. 13 Id., ¶¶14, 15. Direct Purchaser Plaintiffs have informed Apple that they will seek relief from 14 Magistrate Richard Seeborg if Apple does not respond by September 25. Id., Ex. F. 15 16 B. Apple's Proposed Schedule Is Unfair to Direct Purchaser Plaintiffs

As Direct Purchaser Plaintiffs' counsel has already explained to counsel for Apple, Direct

17 Purchaser Plaintiffs' expert is traveling and unavailable much of September and October, and lead 18 counsel's travel and hearing scheduling make a further shortening of the schedule exceedingly 19 difficult. Id., Ex. G. While it is true, as Apple notes, that the Direct Purchaser Plaintiffs are 20 represented by several lawyers, Ms. Sweeney argued the class certification motion, defended 21 Professor Noll's deposition, has been working with Professor Noll, and will be deposing Apple's 22 expert. Id., ¶18. It is therefore appropriate to permit Ms. Sweeney to participate in the preparation 23 of a response. 24 Furthermore, after counsel learned that Professor Noll was traveling and unavailable during

25 the week of October 12, 2009 (the week Apple would be preparing its reply brief, and so would need 26 to take his deposition), counsel so informed Apple. Because of Professor Noll's unavailability, 27 Direct Purchaser Plaintiffs' counsel agreed not to oppose any request by Apple to file its reply on 28 October 23, 2009 or later. Id., Ex. G at 1. Thus, Apple's assertion that Direct Purchaser Plaintiffs
OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

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1 have "backtracked" on their agreement to produce Professor Noll is demonstrably false. Rather, 2 counsel have made every attempt reasonably to accommodate Apple's and the Court's schedule. 3 Apple argues that one week is insufficient for Apple to prepare its reply because of "the

4 complexity of the issues." However, Apple originally filed its decertification motion on the 5 assumption that it would prepare its reply in one week. Apple served and filed its motion on August 6 31, 2009 and noticed it for hearing 35 days later, on October 5, 2009. Under the Local Rules, Apple 7 would have had one week after service of Direct Purchaser Plaintiffs' opposition to prepare its reply. 8 As Apple originally contemplated preparing its reply brief within one week, there is no reason it 9 cannot do so now. Further, Apple will not be prejudiced by the fact that it served its brief more than 10 35 days before the new hearing date, because Direct Purchaser Plaintiffs' counsel is unable to depose 11 Apple's expert until September 30, 2009. 12 Finally, this scheduling difficulty has arisen because Apple failed to consult Direct Purchaser

13 Plaintiffs' counsel about a briefing schedule prior to filing its decertification motion, in 14 contravention of usual and courteous practice in this District. Instead, it filed the motion just before 15 the long Labor Day weekend, at a time when Direct Purchaser Plaintiffs had several other briefs to 16 prepare in this case. Under these circumstances it would be unfair and unduly prejudicial to Direct 17 Purchaser Plaintiffs to shorten their time to prepare an opposition in order to lengthen Apple's time 18 in which to prepare a reply. 19 For the foregoing reasons, Direct Purchaser Plaintiffs respectfully request that the Court deny Alternatively, they request that the Court deny Apple's

20 Apple's Administrative Motion.

21 decertification motion without prejudice to its right to renew its motion at an appropriate time, after 22 the completion of discovery. 23 DATED: September 23, 2009 24 25 26 27 28 s/ Bonny E. Sweeney BONNY E. SWEENEY
OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)

Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN J. STOIA, JR. BONNY E. SWEENEY THOMAS R. MERRICK

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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 Additional Counsel for Plaintiffs 26 27 28
OPPOSITION TO APPLE'S ADMINISTRATIVE MOTION TO SET BRIEFING SCHEDULE FOR DECERTIFICATION MOTION - C-05-00037-JW(RS)
S:\CasesSD\Apple Tying\BRF00061860.doc

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

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CERTIFICATE OF SERVICE I hereby certify that on September 23, 2009, 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 September 23, 2009. 9 10 11 12 13 14 E-mail:[e-mail] 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)

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