Holman et al v. Apple, Inc. et al

Filing 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTO R N E Y S AT LAW SA N F R A N C I S C O

LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) Alfred C. Pfeiffer, Jr. (Bar No. 120965) Christopher S. Yates (Bar No. 161273) Adrian F. Davis (Bar No. 215827) 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE APPLE & AT&TM ANTI-TRUST LITIGATION CASE NO. C 07-05152 JW NOTICE OF PENDENCY OF ACTION OR OTHER PROCEEDING [CIVIL LOCAL RULE 3-13] Judge: Honorable James Ware

NOTICE OF PENDENCY CASE NOS. C 07-5152 JW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTO R N E Y S AT LAW SA N F R A N C I S C O

Defendant Apple Inc. ("Apple") hereby notifies the Court, pursuant to Civil Local Rule 3-13, of the pendency of another action which involves the same or similar subject matter and substantially all of the same parties as the instant consolidated action. An action pending in the United States District Court for the Southern District of New York, Kliegerman v. Apple Inc. and AT&T Mobility LLC, Case No. 1-07-CV-08404-PKC ("Kliegerman"), and this consolidated action involve the same defendants (Apple and AT&T Mobility LLC), and challenge the same agreement between Apple and AT&T Mobility LLC ("ATTM") concerning the iPhone, alleging that the agreement violates the antitrust and unfair competition laws. In addition, like this consolidated action, Kliegerman also challenges various business conduct related to the iPhone and software updates to the iPhone and purports to be a class action brought on behalf of all purchasers of the iPhone. Kliegerman was filed on August 27, 2007, in the Supreme Court of the State of New York, County of New York, Index No. 111681/2007. Apple removed the action on September 27, 2007 to the United States District Court for the Southern District of New York. The original complaint in Kliegerman, which was brought against only Apple, alleged that Apple failed to adequately warn iPhone purchasers that the iPhone was locked to only accept ATTM SIM cards, that SIM card unlocking codes would not be provided to iPhone owners, and that iPhone owners would incur roaming charges when traveling abroad. The sole claim for relief was based on alleged violations of New York General Business Law § 349. Plaintiff Kliegerman amended his complaint on November 16, 2007. The Amended Complaint alleges that Apple and ATTM entered into what plaintiff calls an unlawful agreement under which ATTM will be the exclusive provider of phone and data services for the iPhone in the United States and Apple will allegedly receive a portion of ATTM's profits. Kliegerman Amended Class Action Complaint ("ACAC," attached hereto as Exhibit 1) ¶¶ 54, 55. The Amended Complaint further alleges that through the use of a software lock and a software update, Apple has prohibited iPhone owners from unlocking their phones for use with cellular telephone service providers other than ATTM. Kliegerman ACAC ¶¶ 73-83. Based on these allegations, the Amended Complaint asserts counts for monopolization and attempted 1
NOTICE OF PENDENCY CASE NOS. C 07-5152 JW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTO R N E Y S AT LAW SA N F R A N C I S C O

monopolization in violation of Section 2 of the Sherman Act, unfair business practices under California Business & Professions Code § 17200 and the laws of other states, trespass to chattels, and violation of the Magnuson-Moss Warranty Act. In short, the factual allegations and legal claims of the Kliegerman case and this consolidated action are substantially similar, and are all based on the same alleged agreements and practices of Apple and ATTM. In addition, plaintiffs in both this consolidated action and in Kliegerman purport to represent classes consisting of all purchasers of iPhones in the United States. Kliegerman ACAC ¶ 85. On December 6, 2007, counsel for Apple notified the Honorable P. Kevin Castel, United States District Judge, Southern District of New York, of Your Honor's Order consolidating the Smith v. Apple and Holman v. Apple cases. A copy of that letter is attached hereto as Exhibit 2. Apple believes that transfer of the Kliegerman action to this Court will avoid conflicts, conserve resources, and otherwise promote efficient determination of the actions, and plans to bring a motion to transfer Kliegerman to this Court pursuant to 28 U.S.C. §1404(a). Under Judge Castel's Individual Practices, Apple submitted a letter to Judge Castel on December 18, 2008 requesting a pre-motion conference at which Apple would seek leave to file a motion to transfer the Kliegerman case to the Northern District of California; a copy of Apple's letter to Judge Castel is attached hereto as Exhibit 3. On December 19, 2007, Judge Castel issued an Order waiving the pre-motion conference, granting Apple leave to proceed with the motion to transfer, and adjourning the time to respond to the Amended Complaint pending a decision on the motion to transfer; a copy of Judge's Castel's Order is attached hereto as Exhibit 4. ///

2

NOTICE OF PENDENCY CASE NOS. C 07-5152 JW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTO R N E Y S AT LAW SA N F R A N C I S C O

Dated: December 20, 2007

Respectfully submitted, LATHAM & WATKINS LLP

By

/s/ Christopher S. Yates Christopher S. Yates Attorneys for Defendant APPLE INC.

SF\637383

3

NOTICE OF PENDENCY CASE NOS. C 07-5152 JW