"The Apple iPod iTunes Anti-Trust Litigation"

Filing 764

Response to Order to Show Cause re 760 Order to Show Cause, filed by Apple Inc.. (Attachments: # 1 Apple's Letter Pursuant to Paragraph 9 of the Standing Order)(Mittelstaedt, Robert) (Filed on 2/3/2014) Modified on 2/4/2014 (jlmS, COURT STAFF).

Download PDF
1 2 3 4 5 6 7 8 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 Attorneys for Defendant APPLE INC. 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 THE APPLE iPOD iTUNES ANTITRUST LITIGATION Lead Case No. C 05-00037 YGR [CLASS ACTION] 15 ___________________________________ APPLE’S RESPONSE TO ORDER TO SHOW CAUSE 16 This Document Relates To: 17 ALL ACTIONS 14 18 19 Date: February 7, 2014 Time: 3:30 p.m. Courtroom: 5 Judge: Hon. Yvonne Gonzalez Rogers 20 21 22 23 Apple and its counsel understand that, under this Court’s Standing Order in Civil Cases, 24 an order setting deadlines for a summary judgment motion does not excuse compliance with the 25 pre-filing conference requirements. Unfortunately, Apple and its counsel mistakenly thought that 26 a pre-filing conference for its current summary judgment motion was not required given previous 27 proceedings in this action. Judge Ware had previously authorized a motion for summary 28 judgment to be filed after the close of expert discovery; Apple had disclosed the general nature of Apple’s Response to OSC Case No. C 05-00037 1 its motion; and the Court had approved briefing and hearing schedules for the specific motion. In 2 these circumstances, neither party nor their counsel thought further leave of the Court was 3 necessary. It is clear, however, from this Court’s January 29 Order that this understanding was 4 incorrect. We apologize to the Court for not complying with the pre-filing requirements. 5 We provide a brief discussion of the events leading up to the filing of the summary 6 judgment motion to show that our understanding, although mistaken, was in good faith. When 7 the action was pending before Judge Ware, Apple moved for summary judgment on the threshold 8 ground that its software updates, as a matter of law, were not exclusionary acts under Section 2 of 9 the Sherman Act. See Dkt. No. 473. With the Court’s approval, Apple filed this motion in 10 advance of expert discovery in an effort to efficiently resolve the case. See Dkt. Nos. 381, p. 5; 11 392. Judge Ware granted summary judgment as to iTunes 4.7 and denied it as to iTunes 7.0. See 12 Dkt. No. 627. 13 Subsequently, over plaintiffs’ objection, Judge Ware ruled that Apple could file another 14 motion for summary judgment “addressing issues which have not yet been raised before the 15 Court” including issues such as impact and damages for which plaintiffs intended to rely on 16 experts. See Dkt. No. 713 (“nothing in the Federal Rules of Civil Procedure or the Civil Local 17 Rules would prevent Defendant from filing a motion for summary judgment addressing issues 18 which have not yet been raised before the Court. . . .[T]he Court finds no reason to deny 19 Defendant the ability to challenge [the expert report to be filed in the future] once it becomes 20 available, and to file any appropriate motion for summary judgment resulting from the disclosures 21 made in that expert report.”) 22 After this action was reassigned in September 2012, the parties’ plan as outlined in joint 23 CMC statements was to complete expert discovery and proceed to the summary judgment motion 24 authorized by Judge Ware. Accordingly, the parties jointly submitted several case management 25 statements and proposed orders setting out a full briefing and hearing schedule specifically for 26 that motion. See Dkt. Nos. 719, 721, 727, 729. On May 31, 2013, the parties filed a stipulation 27 to continue certain expert deadlines and proposing that the summary judgment motion be heard in 28 February, noting again Judge Ware’s statement that Apple would be permitted to move for -2- Apple’s Response to OSC Case No. C 05-00037 1 summary judgment on issues not previously raised. Dkt. No. 729. The Court adopted the 2 proposed briefing schedule for the summary judgment motion, adding that the hearing date was 3 “to be set once Court has availability to consider motions.” Dkt. No. 730. In October 2013, the 4 parties proposed changing the briefing schedule in light of delays in expert discovery, noting that 5 “the sufficiency of plaintiffs’ expert testimony will be the focus of Apple’s motion for summary 6 judgment motion . . . ” Dkt. No. 734-1, at 4. On November 1, 2013, the Court adopted the 7 proposed revised briefing schedule and set the hearing on Apple’s motion for February 18, 2014. 8 Dkt. No. 735. 9 In these circumstances, Apple and its counsel believed that further leave of the Court was 10 not required. Plaintiffs and their counsel voiced no disagreement. As noted, however, it is clear 11 from the Court’s order that this mutual understanding was mistaken. Apple respectfully submits 12 that no sanctions are required because its failure to comply with the Standing Rule was an 13 unintentional, good faith mistake as outlined above, and the parties have now complied with the 14 requirements of this Court’s Standing Order. If any sanctions are awarded, they should be 15 directed to counsel because this was counsel’s mistake. Apple and its counsel will be prepared at 16 the February 7th hearing to discuss the grounds for its summary judgment motion which are 17 summarized in its three-page letter to the Court and a new hearing date, and again apologizes for 18 not complying with this Court’s Standing Order. 19 20 Dated: February 3, 2014 By:/s/ Robert A. Mittelstaedt Robert A. Mittelstaedt 21 22 Counsel for Defendant APPLE INC. 23 24 JONES DAY SFI-852100v2 25 26 27 28 -3- Apple’s Response to OSC Case No. C 05-00037

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?