"The Apple iPod iTunes Anti-Trust Litigation"

Filing 689

RESPONSE (re 687 ADMINISTRATIVE MOTION Pursuant to Civil Local Rule 7-11 Regarding Seven Motions Renoticed by Plaintiffs ) Plaintiffs' Opposition to Apple's Administrative Motion Pursuant to Civil Local Rule 7-11 Regarding Seven Motions Renoticed by Plaintiffs filed byMelanie Tucker. (Attachments: # 1 Proposed Order)(Bernay, Alexandra) (Filed on 10/20/2011)

1 ROBBINS GELLER RUDMAN
& DOWD LLP
2 JOHN J. STOIA, JR. (141757)
BONNY E. SWEENEY (176174)
3 THOMAS R. MERRICK (177987)
ALEXANDRA S. BERNAY (211068)
4 CARMEN A. MEDICI (248417)
655 West Broadway, Suite 1900
5 San Diego, CA 92101
Telephone: [phone]
6 619/231-7423 (fax)
[e-mail]
7 [e-mail]
[e-mail]
8 [e-mail]
[e-mail]
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THE KATRIEL LAW FIRM
10 ROY A. KATRIEL (pro hac vice)
1101 30th Street, N.W., Suite 500
11 Washington, DC 20007
Telephone: [phone]
12 202/330-5593 (fax)
[e-mail]
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Co-Lead Counsel for Plaintiffs
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[Additional counsel appear on signature page.]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW
19 LITIGATION
)
) CLASS ACTION
20
)
) PLAINTIFFS’ OPPOSITION TO APPLE’S
This Document Relates To:
21
) ADMINISTRATIVE MOTION PURSUANT
) TO CIVIL LOCAL RULE 7-11
ALL ACTIONS.
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) REGARDING SEVEN MOTIONS
RENOTICED BY PLAINTIFFS
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JUDGE:
Hon. Chief Judge James Ware
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DATE:
N/A
TIME:
N/A
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CTRM:
9, 19th Floor
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1

Apple’s October 14, 2011 Motion must be denied.

2

Far from “simplify[ing]” the Court’s consideration of the class certification motion, as Apple

3 claims, the proposed “relief” adds another round of needless briefing as well as a proposed
4 evidentiary hearing, neither of which are necessary to the Court’s consideration of class certification
5 in this matter. Dkt. No. 687 (Administrative Motion Pursuant to Civil Local Rule 7-11 Regarding
6 Seven Motions Renoticed by Plaintiffs) at 1. Because the Court has an ample, indeed voluminous,
7 record upon which to base its class-certification decision, Plaintiffs respectfully request the Court
8 deny Apple’s motion and instead grant Plaintiffs’ October 13, 2011 motion re-noticing class
9 certification-related motions as was called for by the Court’s September 27, 2011 Order. Dkt. No.
10 680 (Order Requiring Parties to Renotice Pending Motions).
11

Apple’s arguments for burdening the Court and the parties with yet another round of briefing

12 and an evidentiary hearing are unpersuasive and serve only to advance Apple’s agenda which is to
13 delay a decision on class certification for as long as possible. Neither the Court nor the parties will
14 benefit from this wasteful exercise.
15

As the Court is aware, the parties have submitted numerous briefs and expert reports related

16 to class certification.1 And despite Apple’s contentions that nothing related to iTunes 7.0 is before
17 the Court, the Court has before it substantial and detailed declarations as well as extensive briefing
18 from both sides specifically addressing Plaintiffs’ remaining claims related to iTunes 7.0. In fact, in
19 response to the Court’s June 27, 2011 Order, Plaintiffs filed a Supplemental Declaration by
20 Plaintiffs’ Expert, Roger Noll, stating that Professor Noll can show antitrust impact and a
21 methodology for measuring damages in accordance with the Court’s May 19, 2011 Order limiting
22 Plaintiffs’ claims to iTunes 7.0.2 Apple then filed a detailed, substantive response to this Declaration
23 on July 22, 2011. Dkt No. 663 (Apple’s Response to Professor Noll’s July 18 Declaration). In
24
1
On
25 certificationOctober 13, 2011, Plaintiffs filed a Notice re-noticing motions related to class
based on the Court’s September 27, 2011 Order. In that Notice, Plaintiffs re-noticed
seven motions and then listed, for the Court’s convenience, all pending filings related to class
26 certification.
27 2
See Dkt. No. 660 (Supplemental Declaration of Roger G. Noll (Redacted)).

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1 addition to Apple’s response to Professor Noll’s iTunes 7.0 declaration, Apple also filed a
2 Supplemental Report from its expert, Dr. Michelle M. Burtis, dated July 22, 2011, which also
3 addresses iTunes 7.0. Dkt. No. 665 (Supplemental Report of Dr. Michelle M. Burtis).
4

Both parties then submitted yet more supplemental briefing – at Apple’s urging – regarding

5 the impact, if any, on the proposed class following the United States Supreme Court’s decision in
6 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 180 L. Ed 2d 374 (2011). Those briefs too dealt
7 exclusively with issues related to the propriety of certification of a class limited to claims related to
8 iTunes. 7.0.3
9

Additionally, the Court has before it Professor Noll’s Second Supplemental Declaration on

10 Class Certification, filed on September 23, 2011. Dkt No. 679. This latest declaration further details
11 Plaintiffs’ ability to show impact and damages on a class-wide basis as to both resellers and those
12 who purchased from Apple stores or online portals. And, like the July 18, 2011 Declaration, the
13 Second Supplemental Declaration deals only with the remaining claims in this case, i.e., iTunes 7.0.
14 Apple is scheduled to file a response on November 14, 2011 and Plaintiffs assume that Apple will
15 make arguments similar to those it has in the past, namely, that in its view, no class can ever be
16 certified in this matter. The last thing this case needs is yet another round of briefing.
Apple’s claim that the pleadings are stale or “largely outdated” is untrue. Dkt. No. 687 at 2.

17

18 The basic legal framework supporting certification in this class remains the same.4 When the
19 contours of the case changed following the Court’s summary judgment ruling, the parties were both
20 afforded ample opportunities to discuss the impact of those changes both via expert reports and
21 briefing. Plaintiffs have demonstrated, repeatedly, that certification is proper here and have provided
22 detailed and extensive materials to back up that assertion. Apple’s latest tactic serves only to delay.
23
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3

Dkt. No. 644 (Plaintiffs’ Response to the Court’s June 22, 2011 Order Requiring Further
Supplemental Briefing); Dkt. No. 646 (Apple’s Further Supplemental Brief Re Class Certification).
25
4

In fact, the basic legal framework
has not changed since the
26 Court originally granted class certification supporting class certification principles apply to the case
in this matter. The same legal
it did on
when the Court
certified classes for Plaintiffs’
27 now as 2 claims. December 22, 2008,common evidenceoriginally used to prove Plaintiffs’ claims.
Section
Then, the Court held
would be
28 See Dkt. No. 196 (Order Granting Plaintiffs’ Motion for Class Certification). The Court specifically
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1

Adding to the problems with Apple’s motion, the proposed schedule is unreasonable and

2 extremely biased. Under Apple’s “first option” Apple proposes Plaintiffs file an entirely new
3 certification motion by October 24, 2011. Dkt. No. 687 at 2-3. That is a mere four days after the
4 instant brief is due. Should the Court agree to Apple’s wasteful and unnecessary additional briefing
5 and evidentiary hearing, Plaintiffs request the parties meet and confer to come up with a workable
6 schedule.5
7 DATED: October 20, 2011

Respectfully submitted,

8

ROBBINS GELLER RUDMAN
& DOWD LLP
JOHN J. STOIA, JR.
BONNY E. SWEENEY
THOMAS R. MERRICK
ALEXANDRA S. BERNAY
CARMEN A. MEDICI

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s/ Alexandra S. Bernay
ALEXANDRA S. BERNAY

14
15 found Plaintiffs’ claims were subject to common proof (id. at 8) and found the predominance
requirement satisfied by the “numerous common questions of law and fact involving [Apple]’s
16 allegedly anticompetitive conduct.” Id. at 12. Finally, the Court held that a class action was “the
superior method to adjudicate Plaintiffs’ claims.” Id. After the Court dismissed Plaintiffs’ tying
17 claims, it decertified the class. The Court made clear, however, in its decertification order (Dkt. No.
303) that it was not decertifying the classes on the grounds raised by Apple in its motion to decertify:
18
[T]his decertification is not dependent on the grounds raised by Defendant in its
Motion to decertify, namely, that Plaintiffs’ expert, Dr. Roger G. Noll’s, report
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provides an inadequate method for proving common impact on the class to meet the
predominance requirement of Rule 23(b)(3). The Court rejects Defendant’s
20
contention and decertifies the Rule 23(b)(3) without prejudice and only in order to
ensure that a proper class would be defined in light of this Order.
21
22 Dkt. No. 303 at 2 n.6.
5
Apple’s proposed Order also seeks to
file, by October 20, 2011, brief
23 demonstrating why the motions they re-noticedhave Plaintiffs Court’s September 27, 2011aOrder
following the
they should be
24 “are not moot and whyRe-notice Classre-noticed.” Dkt. No. 687-1 ((Proposed) Order Regarding
Plaintiffs’ Request to
Certification and Other Motions). This proposed brief,
referenced nowhere in Apple’s motion, is nonsensical and, as demonstrated by the declaration filed
25 by Apple’s counsel, was not proposed to Plaintiffs in advance of Apple’s filing. See Dkt. No. 688
Kiernan in Support
26 (Declaration of DavidPlaintiffs). Plaintiffs’ of Apple’s Administrative Motion Regarding Seven
Motions Renoticed by
response to the instant motion is due October 20, 2011.
By this proposal Apple seeks to force Plaintiffs to file another brief on the same day as the response
27 to the instant brief is due. This is insupportable and patently unfair.
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655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: [phone]
619/231-7423 (fax)
THE KATRIEL LAW FIRM
ROY A. KATRIEL
1101 30th Street, N.W., Suite 500
Washington, DC 20007
Telephone: [phone]
202/330-5593 (fax)

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Co-Lead Counsel for Plaintiffs
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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]
602/274-1199 (fax)
BRAUN LAW GROUP, P.C.
MICHAEL D. BRAUN
10680 West Pico Blvd., Suite 280
Los Angeles, CA 90064
Telephone: [phone]
310/836-6010 (fax)

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MURRAY FRANK LLP
BRIAN P. MURRAY
275 Madison Avenue, Suite 801
New York, NY 10016
Telephone: [phone]
212/682-1892 (fax)
GLANCY BINKOW & GOLDBERG LLP
MICHAEL GOLDBERG
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Telephone: [phone]
310/201-9160 (fax)

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Additional Counsel for Plaintiffs
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PLTFS’ OPP. TO APPLE’S ADMIN MTN PURSUANT TO LOCAL RULE 7-11 RE SEVEN MTNS
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CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2011, I authorized the electronic filing of the foregoing

3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to
4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I
5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF 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 October 20, 2011.
9

s/ Alexandra S. Bernay
ALEXANDRA S. BERNAY

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ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Telephone: [phone]
619/231-7423 (fax)

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E-mail:

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