"The Apple iPod iTunes Anti-Trust Litigation"

Filing 706

CASE MANAGEMENT STATEMENT filed by Apple Inc.. (Kiernan, David) (Filed on 4/13/2012)

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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Class 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
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15 LITIGATION
) CLASS ACTION
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) JOINT STATUS CONFERENCE
This Document Relates To:
) STATEMENT
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ALL ACTIONS.
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699797_1

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In accordance with the Court’s April 2, 2012 Order, the parties jointly submit this Joint

2 Status Conference Statement.
3 I.

DISPOSITIVE MOTIONS

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No dispositive motions are pending.

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Plaintiffs’ Position

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It is Plaintiffs’ position that further dispositive motions by Apple are neither permitted nor

7 necessary. See Fed. R. Civ. P. 56 (b) (“Time to File a Motion. Unless a different time is set by local
8 rule or the court orders otherwise, a party may file a motion for summary judgment at any time until
9 30 days after the close of all discovery.”) Discovery in this case closed on December 20, 2011. See,
10 e.g., July 22, 2010 Scheduling Order. The deadline for Apple to file its renewed summary judgment
11 motion was set forth in the October 28, 2010 Scheduling Order. Its renewed motion was filed
12 January 18, 2011. The Court ruled on the motion on May 19, 2011.
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Should the Court determine that Apple is entitled to another, third, summary judgment

14 motion in this case, Plaintiffs’ request the parties meet and confer on a schedule for such a motion.
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Apple’s Position:

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The time for filing dispositive motions has not passed. Rule 56(b) allows a party to “file a

17 motion for summary judgment at any time until 30 days after the close of all discovery.” As
18 reflected below, expert discovery is ongoing and will not close until November 19, 2012. Nor did
19 this Court’s October 28, 2010 Scheduling Order limit Rule 56(b). That Order simply set a briefing
20 schedule for Apple’s motion seeking summary judgment on the threshold ground that Apple’s
21 software updates were not exclusionary acts as a matter of law.
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In addition to showing exclusionary conduct, plaintiffs must prove the other elements of their

23 antitrust claim, including antitrust impact and damages. Apple’s earlier summary judgment motion
24 did not address and could not have addressed these issues because plaintiffs had not produced at that
25 time (and still have not produced) their expert reports addressed to those issues. As Rule 56(b)
26 recognizes, Apple’s motion will be ripe once plaintiffs’ produce their reports and discovery on those
27 issues is complete. And if, as Apple believes, Plaintiffs’ expert(s) will be unable to establish impact
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JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW

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1 or damages, it is in the interests of all to have those issues determined by motion rather than hold an
2 unnecessary trial.
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Apple proposes the same briefing schedule proposed for motions to exclude experts below:

4 i.e., dispositive motion due November 30, 2012, opposition due December 21, 2012, and Reply due
5 January 11, 2013.
6 II.

CLASS NOTICE

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On March 29, 2012, the Court approved the parties joint proposal regarding notice. At this

8 time, the notice process is proceeding as scheduled. On April 5, 2012, Apple informed the notice
9 provider that it had determined that it had 8.5 million email addresses instead of the 4.2 million
10 email addresses it originally believed it possessed. The notice providers have told Plaintiffs and
11 Apple that it can still complete the notice process as originally envisioned in the joint plan and will
12 be sending out the notice in several batches over the course of six days, with the start of the email
13 portion of the notice plan set for April 24, 2012. Mailings to resellers will be sent on April 30, 2012.
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Advertising space in Entertainment Weekly and Wired magazine has been secured. The

15 notice to be published in Entertainment Weekly will run in the May 11, 2012 edition, available on
16 newsstands May 4, 2012. The notice to be published in Wired will run in the June 2012 edition,
17 available on newsstands May 22, 2012. The planned website has been secured and is expected to go
18 live on April 23, 2012. The toll-free hotline is to go live on April 23, 2012
19 III.

SCHEDULING

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The parties have conferred regarding a schedule for the remainder of the litigation and

21 propose the following:
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A.

Experts

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Plaintiffs’ expert report(s) due:

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Service of Plaintiffs’ experts’ data and October 1 , 2012
documents:

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September 28, 2012

Deposition(s) of Plaintiffs’ expert(s) to be October 26, 2012
completed

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Defendant’s expert report(s) due:

JOINT STATUS CONFERENCE STATEMENT - C-05-00037-JW

November 2, 2012

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Service of Defendant’s experts’ data and November 5, 2012
documents:

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Depositions of Defendants expert(s) to be November 14, 2012
completed:

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Plaintiffs’ rebuttal report(s) due:

November 16, 2012

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Service of
documents:

and November 19, 2012

November 30, 2012

Oppositions due:

December 21, 2012

Replies due:

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data

Motions to exclude expert testimony due:

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Plaintiffs

experts’

January 11, 2013

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Hearing on motions to exclude expert testimony January 18, 2013

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B.

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Pretrial Practice

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Service of proposed witness and exhibit lists:

January 7, 2013

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Service of objections to witness and exhibit lists: January 14, 2013

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Final exhibit lists, witness lists, jury instructions, January 21, 2013

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voir dire questions, and verdict forms

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Motions in limine

January 11, 2013

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Oppositions to motions in limine

January 28, 2013

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Replies in support of motions in limine

January 25, 2013

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Pretrial Conference

Week of January 28, 2013

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C.

Trial.

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February 2013

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Estimated length of trial: 10 days.

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SETTLEMENT EFFORTS

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Over the course of the case, the parties have discussed ways to resolve the litigation.

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1 DATED: April 13, 2012
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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
[ATTORNEY SIGNATURE]

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655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: [phone]
619/231-7423 (fax)

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Class Counsel for Plaintiffs

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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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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)

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GLANCY BINKOW & GOLDBERG LLP
MICHAEL GOLDBERG
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
310/201-9160 (fax)

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Additional Counsel for Plaintiffs

6 DATED: April 13, 2012

JONES DAY
ROBERT A. MITTELSTAEDT
CRAIG E. STEWART
DAVID C. KIERNAN

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s/ David C. Kiernan
DAVID C. KIERNAN

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555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: [phone]
415/875-5700 (fax)

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Attorneys for Defendant Apple Inc.
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