"The Apple iPod iTunes Anti-Trust Litigation"

Filing 751

Administrative Motion to File Under Seal Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll; Plaintiffs' Responsive Separate Statement in Support of Opposition to Defendant's Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll and Exhibits 1-4, 9-17, 20-29, 31-46, 48-54, 56, and 58-62 Under Seal Pursuant to Civil L.R. 7-11 and 79-5(c) filed by Somtai Troy Charoensak, Mariana Rosen, Melanie Tucker. (Attachments: # 1 Declaration in support thereof, # 2 Proposed Order Granting Plaintiffs' Administrative Motion to Seal, # 3 Unredacted Version of Plaintiffs Memorandum of Law in Opposition to Defendants Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll, # 4 Exhibit 1-2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5-8, # 8 Exhibit 9-17, # 9 Exhibit 18-19, # 10 Exhibit 20-29, # 11 Exhibit 30, # 12 Exhibit 31-35, # 13 Exhibit 36-46, # 14 Exhibit 47, # 15 Exhibit 48-54, # 16 Exhibit 55, # 17 Exhibit 56, # 18 Exhibit 57, # 19 Exhibit 58-62, # 20 Declaration of Bonny E. Sweeney in Support of Plaintiffs Memorandum of Law in Opposition to Defendants Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll, # 21 Unredacted Version of Plaintiffs' Responsive Separate Statement in Support of Opposition to Defendant's Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll, # 22 Proposed Order Denying Defendant's Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll)(Sweeney, Bonny) (Filed on 1/13/2014)

1 ROBBINS GELLER RUDMAN
& DOWD LLP
2 BONNY E. SWEENEY (176174)
THOMAS R. MERRICK (177987)
3 ALEXANDRA S. BERNAY (211068)
CARMEN A. MEDICI (248417)
4 JENNIFER N. CARINGAL (286197)
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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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THE APPLE IPOD ITUNES ANTI-TRUST
15 LITIGATION
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This Document Relates To:
ALL ACTIONS.

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Lead Case No. C-05-00037-YGR
CLASS ACTION
DECLARATION OF BONNY E. SWEENEY
IN SUPPORT OF PLAINTIFFS’
MEMORANDUM OF LAW IN
OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AND TO
EXCLUDE EXPERT TESTIMONY OF
ROGER G. NOLL

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DATE:
TIME:
CTRM:
JUDGE:

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906508_1

February 18, 2014
2:00 p.m.
5, 2nd Floor
Hon. Yvonne Gonzalez Rogers

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I, BONNY E. SWEENEY, declare:

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1.

I am an attorney duly licensed to practice before all of the courts of the State of

3 California. I am a member of the law firm of Robbins Geller Rudman & Dowd LLP, Class Counsel
4 for the Class and for Plaintiffs Melanie Tucker, Mariana Rosen and Somtai Troy Charoensak
5 (collectively, “plaintiffs”) in this action. I have personal knowledge of the matters stated herein, and,
6 if called upon, I could and would completely testify thereto.
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2.

I submit this declaration in support of Plaintiffs’ Memorandum of Law in Opposition

8 to Defendant’s Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll.
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3.

Attached hereto are true and correct copies of the following documents:

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Exhibit 01:

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Exhibit 02:

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Exhibit 03:

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Exhibit 04:

Expert Report of David M. Martin Jr., Ph.D., dated April 8, 2013 [filed under
seal];

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Exhibit 05:
Exhibit 06:
Exhibit 07:
Exhibit 08:
Exhibit 09:
Exhibit 10:

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Exhibit 11:

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Exhibit 12:

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Exhibit 13:
Exhibit 14:

Declaration of Howie Singer, dated December 22, 2010;
Declaration of Lawrence Kanusher, dated December 22, 2010;
Declaration of Amanada Marks, dated December 28, 2010;
Declaration of Mark Piibe, dated December 22, 2010;
Deposition Transcript of Eddy Cue, taken December 17, 2010 [filed under seal];
Deposition Transcript of Jeffrey L. Robbin, taken December 3, 2010 [filed under
seal];
Deposition Transcript of Augustin J. Farrugia, taken December 8, 2010 [filed
under seal];
Declaration of Augustin Farrugia in Support of Defendant’s Renewed Motion for
Summary Judgment, dated January 2011 [filed under seal];
Apple_AIIA00098417 [filed under seal];
Deposition Transcript of David K. Heller, taken December 15, 2010 [filed under
seal];
Apple_AIIA01278671-74 [filed under seal];
Apple_AIIA01202393-401 [filed under seal];
Apple_AIIA00099408-09 [filed under seal];
Bryan Chaffin, The Mac Observer, iPod Claims 82% HD-Based Retail Market
Share; 42% All Players (UPDATE) (Oct. 11, 2004);
Declaration of Lee Morse, dated January 19, 2007;
Apple_AIIA01278810-11 [filed under seal];
Apple_AIIA01385106 [filed under seal];
Deposition Transcript of Steve Jobs, taken April 12, 2011 [filed under seal];
Apple_AIIA00090441-43 (Cue Depo. Ex. 64) [filed under seal];

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906508_1

Exhibit 15:
Exhibit 16:
Exhibit 17:
Exhibit 18:
Exhibit 19:
Exhibit 20:
Exhibit 21:
Exhibit 22:
Exhibit 23:
Exhibit 24:
Exhibit 25:

Declaration of Roger G. Noll on Liability and Damages, dated April 3, 2013
[filed under seal];
Rebuttal Declaration of Roger G. Noll on Liability and Damages, dated
November 25, 2013 [filed under seal];
Supplemental Rebuttal Declaration of Roger G. Noll on Liability and Damages,
dated January 13, 2014 [filed under seal];

Apple_AIIA_00979727 [filed under seal];
Apple_AIIA00327951-52 (Cue Deposition Exhibit 71) [filed under seal];

DEC OF BONNY E. SWEENEY ISO PLTFS’ MEMO OF LAW IN OPPO TO DEF’S MOTION FOR SUMMARY
JUDGMENT & TO EXCLUDE EXPERT TESTIMONY OF ROGER G. NOLL - C-05-00037-YGR

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Exhibit 26:
Exhibit 27:
Exhibit 28:
Exhibit 29:
Exhibit 30:

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Exhibit 31:
Exhibit 32:
Exhibit 33:
Exhibit 34:
Exhibit 35:

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Exhibit 36:
Exhibit 37:
Exhibit 38:
Exhibit 39:
Exhibit 40:
Exhibit 41:
Exhibit 42:
Exhibit 43:
Exhibit 44:
Exhibit 45:
Exhibit 46:
Exhibit 47:
Exhibit 48:
Exhibit 49:
Exhibit 50:

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Exhibit 51:
Exhibit 52:

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Exhibit 53:

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Exhibit 54:

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Exhibit 55:
Exhibit 56:
Exhibit 57:
Exhibit 58:

Apple_AIIA00091049-51 [filed under seal];
Apple_AIIA00090447-49 [filed under seal];
Apple_AIIA00090471 [filed under seal];
Apple_AIIA00090467-68 [filed under seal];
2005 Digital Music Interoperability and Availability Hearing Before the
Subcommittee on the Judiciary, April 6, 2005, Statement of the Honorable Lamar
Smith;
Apple_AIIA00090405-07 [filed under seal];
Apple_AIIA00090429-31 [filed under seal];
Rebuttal Expert Report of David M. Martin Jr., Ph.D., dated October 30, 2013
[filed under seal];
Apple_AIIA00090485-88 [filed under seal];
Compendium of Customer Complaints Containing: Apple_AIIA0000674-77;
Apple_AIIA0002406; Apple_AIIA00062113-15; Apple_AIIA00057320-38;
Apple_AIIA00006477-82; Apple_AIIA00007040-45; Apple_AIIA00007064-69;
Apple_AIIA00007549-56; Apple_AIIA00007575-86; Apple_AIIA00008481-86;
Apple_AIIA00008499-504; Apple_AIIA00067464-68; Apple_AIIA0006747983; Apple_AIIA00067605-11; Apple_AIIA00067632-36; Apple_AIIA0006797983; Apple_AIIA00069598-604; Apple_AIIA00059009-14 and
Apple_AIIA00059088-93
[filed under seal];
Apple_AIIA00093875-76 [filed under seal];
Apple_AIIA00090427 [filed under seal];
Apple_AIIA00090428 [filed under seal];
Apple_AIIA00329373 [filed under seal];
Apple_AIIA00093265 [filed under seal];
Apple_AIIA00090482-83 [filed under seal];
Apple_AIIA00094563-69 filed under seal];
Apple_AIIA00802966-67 [filed under seal];
Apple_AIIA00807080-81 [filed under seal];
Apple_AIIA00320482-84 (Cue Depo. Ex. 58) [filed under seal];
Apple_AIIA00093504 [filed under seal];
BBC News, Apple to end music restrictions (Jan. 7, 2009);
Deposition Transcript of Mark Donnelly, taken December 20, 2010 [filed under
seal];
Apple_AIIA00187793-823 [filed under seal];
Deposition Transcript of Roger G. Noll, taken December 18, 2013 [filed under
seal];
Deposition Transcript of Roger G. Noll, taken May 16, 2013 [filed under seal];
Deposition Transcript of Robert H. Topel, taken January 8, 2014 [filed under
seal];
Deposition Transcript of Kevin M. Murphy, taken January 8, 2014 [filed under
seal];
Declaration of Jeffrey M. Wooldridge in Support of Plaintiff’s Daubert Motion to
Exclude Certain Opinion Testimony of Robert H. Topel and Kevin M. Murphy,
dated December 20, 2013 [filed under seal];
U.S. Department of Justice and the Federal Trade Commission Horizontal Merger
Guidelines (Aug. 19, 2010);
Apple_AIIA00093859 [filed under seal];
2006 Oppenheimer Quarterly Update on RealNetworks, Inc.;
Deposition Transcript of Melanie Tucker, taken October 26, 2007 [filed under
seal];

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906508_1

DEC OF BONNY E. SWEENEY ISO PLTFS’ MEMO OF LAW IN OPPO TO DEF’S MOTION FOR SUMMARY
JUDGMENT & TO EXCLUDE EXPERT TESTIMONY OF ROGER G. NOLL - C-05-00037-YGR

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Exhibit 59:

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Exhibit 60:

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Exhibit 61:
Exhibit 62:

Supplemental Declaration of Augustin Farrugia, dated July 2, 2013 [filed under
seal];
Deposition Transcript of Somtai Charoensak, taken January 12, 2007 [filed
under seal];
Apple_AIIA00325894-97 [filed under seal]; and
Deposition Transcript of Roger G. Noll, taken April 7, 2011 [filed under seal].

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed this 13th day of January, 2014, at San Diego, California.
s/ Bonny E. Sweeney
BONNY E. SWEENEY

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906508_1

DEC OF BONNY E. SWEENEY ISO PLTFS’ MEMO OF LAW IN OPPO TO DEF’S MOTION FOR SUMMARY
JUDGMENT & TO EXCLUDE EXPERT TESTIMONY OF ROGER G. NOLL - C-05-00037-YGR

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CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2014, 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.
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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 January 13, 2014.
9

s/ Bonny E. Sweeney
BONNY E. SWEENEY

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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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906508_1

[e-mail]

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Mailing Information for a Case 4:05-cv-00037-YGR "The Apple
iPod iTunes Anti-Trust Litigation"
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Caroline Nason Mitchell
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