"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).

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Robert A. Mittelstaedt #60359
[e-mail]
Craig E. Stewart #129530
[e-mail]
David C. Kiernan #215335
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

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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 ANTITRUST LITIGATION

Lead Case No. C 05-00037 YGR
[CLASS ACTION]

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___________________________________

APPLE’S RESPONSE TO
ORDER TO SHOW CAUSE

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This Document Relates To:

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ALL ACTIONS

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Date:
February 7, 2014
Time:
3:30 p.m.
Courtroom: 5
Judge:
Hon. Yvonne Gonzalez Rogers

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Apple and its counsel understand that, under this Court’s Standing Order in Civil Cases,

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an order setting deadlines for a summary judgment motion does not excuse compliance with the

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pre-filing conference requirements. Unfortunately, Apple and its counsel mistakenly thought that

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a pre-filing conference for its current summary judgment motion was not required given previous

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proceedings in this action. Judge Ware had previously authorized a motion for summary

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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

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its motion; and the Court had approved briefing and hearing schedules for the specific motion. In

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these circumstances, neither party nor their counsel thought further leave of the Court was

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necessary. It is clear, however, from this Court’s January 29 Order that this understanding was

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incorrect. We apologize to the Court for not complying with the pre-filing requirements.

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We provide a brief discussion of the events leading up to the filing of the summary

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judgment motion to show that our understanding, although mistaken, was in good faith. When

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the action was pending before Judge Ware, Apple moved for summary judgment on the threshold

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ground that its software updates, as a matter of law, were not exclusionary acts under Section 2 of

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the Sherman Act. See Dkt. No. 473. With the Court’s approval, Apple filed this motion in

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advance of expert discovery in an effort to efficiently resolve the case. See Dkt. Nos. 381, p. 5;

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392. Judge Ware granted summary judgment as to iTunes 4.7 and denied it as to iTunes 7.0. See

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Dkt. No. 627.

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Subsequently, over plaintiffs’ objection, Judge Ware ruled that Apple could file another

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motion for summary judgment “addressing issues which have not yet been raised before the

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Court” including issues such as impact and damages for which plaintiffs intended to rely on

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experts. See Dkt. No. 713 (“nothing in the Federal Rules of Civil Procedure or the Civil Local

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Rules would prevent Defendant from filing a motion for summary judgment addressing issues

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which have not yet been raised before the Court. . . .[T]he Court finds no reason to deny

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Defendant the ability to challenge [the expert report to be filed in the future] once it becomes

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available, and to file any appropriate motion for summary judgment resulting from the disclosures

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made in that expert report.”)

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After this action was reassigned in September 2012, the parties’ plan as outlined in joint

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CMC statements was to complete expert discovery and proceed to the summary judgment motion

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authorized by Judge Ware. Accordingly, the parties jointly submitted several case management

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statements and proposed orders setting out a full briefing and hearing schedule specifically for

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that motion. See Dkt. Nos. 719, 721, 727, 729. On May 31, 2013, the parties filed a stipulation

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to continue certain expert deadlines and proposing that the summary judgment motion be heard in

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February, noting again Judge Ware’s statement that Apple would be permitted to move for
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Apple’s Response to OSC
Case No. C 05-00037

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summary judgment on issues not previously raised. Dkt. No. 729. The Court adopted the

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proposed briefing schedule for the summary judgment motion, adding that the hearing date was

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“to be set once Court has availability to consider motions.” Dkt. No. 730. In October 2013, the

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parties proposed changing the briefing schedule in light of delays in expert discovery, noting that

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“the sufficiency of plaintiffs’ expert testimony will be the focus of Apple’s motion for summary

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judgment motion . . . ” Dkt. No. 734-1, at 4. On November 1, 2013, the Court adopted the

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proposed revised briefing schedule and set the hearing on Apple’s motion for February 18, 2014.

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Dkt. No. 735.

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In these circumstances, Apple and its counsel believed that further leave of the Court was

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not required. Plaintiffs and their counsel voiced no disagreement. As noted, however, it is clear

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from the Court’s order that this mutual understanding was mistaken. Apple respectfully submits

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that no sanctions are required because its failure to comply with the Standing Rule was an

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unintentional, good faith mistake as outlined above, and the parties have now complied with the

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requirements of this Court’s Standing Order. If any sanctions are awarded, they should be

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directed to counsel because this was counsel’s mistake. Apple and its counsel will be prepared at

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the February 7th hearing to discuss the grounds for its summary judgment motion which are

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summarized in its three-page letter to the Court and a new hearing date, and again apologizes for

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not complying with this Court’s Standing Order.

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Dated: February 3, 2014

By:/s/ Robert A. Mittelstaedt
Robert A. Mittelstaedt

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Counsel for Defendant APPLE INC.

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JONES DAY

SFI-852100v2

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Apple’s Response to OSC
Case No. C 05-00037