Somers v. Apple, Inc.

Filing 22

Somers v. Apple, Inc.

Doc. 22

1 HAEGGQUIST LAW GROUP ALREEN HAEGGQUIST (221858) 2 501 West Broadway, Suite A-276 San Diego, CA 92101 3 Telephone: [phone] Facsimile: 619/342-7878 4 [e-mail] 5 LAW OFFICE OF HELEN ZELDES 6 HELEN I. ZELDES (220051) 249 S. Highway 101, #370 7 Solana Beach, CA 92075 Telephone: [phone] Facsimile: 858/523-1783 [e-mail] 9 10 11 12 13 14 15 16 STACIE SOMERS, On Behalf of Herself and All Others Similarly Situated, 17 Plaintiff, 18 vs. 19 20 APPLE, INC., a California Corporation, 21 Defendant. 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:07-cv-06507-JW CLASS ACTION INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER REGARDING CONSOLIDATION JUDGE: DATE: TIME: CTRM: Hon. James Ware May 12, 2008 10:00 a.m. 8-4TH FLOOR Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MEHRI & SKALET, PLLC STEVEN A. SKALET CRAIG L. BRISKIN 1250 Connecticut Ave. NW, Suite 300 Washington, DC 20036 Telephone: [phone] Facsimile: 202/822-4997 [e-mail] [e-mail]

Dockets.Justia.com

1

Plaintiff Stacie Somers, on behalf of herself and the putative class she represents in Somers v.

2 Apple, Inc., et. al., No. C-07-06507-JW ("Somers"), respectfully submits the following response to 3 4 5 6 7 Litigation, No. C-05-00037-JW, for the limited purposes of pretrial discovery and scheduling, Plaintiff Somers opposes consolidation for the purposes class certification, summary judgment and this Court's April 22, 2008, Order Directing All Parties to Submit Briefing re: Consolidation. While Plaintiff supports consolidation of the Somers action with the Apple iPod iTunes Anti-Trust

8 trial. 9 I. 10 11 12 CONSOLIDATION IS NOT PRACTICABLE FOR ALL PURPOSES HERE A. The Direct and Indirect Purchaser Actions are at Different Stages in their Development and Each Would be Prejudiced by Consolidation for All Purposes

While the direct purchaser class cases were filed more than two years ago, the indirect

13 purchaser action, the Somers case, was filed only five months ago. The direct purchaser class has 14 already engaged in extensive discovery and is prepared to file its class certification brief this month. 15 16 17 18 The parties in Somers, the indirect purchaser action, have only just held their Rule 26(f) conference and agreed to a schedule in which Plaintiff's motion for class certification would be filed on or before November 3, 2008. Plaintiff Somers believes that a November class certification deadline is

19 necessary in the indirect purchaser action to allow Plaintiff sufficient time to obtain necessary 20 discovery, including discovery specific to her indirect purchaser claims that was not requested or 21 produced in the direct purchaser action, to allow sufficient time to prepare her expert report and to 22 23 24 25 26 Trust Litigation, the direct purchaser action, nor is there any benefit to the Court in doing so. To the contrary, it is likely that the class certification issues decided in the Apple iPod iTunes Anti-Trust adequately prepare her motion for class certification. There is no reason to delay the filing of class certification in the Apple iPod iTunes Anti-

27 Litigation would in fact aid the Court in deciding certification issues in the Somers action. 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -1-

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B.

There are Potential Conflicts Between the Direct and Indirect Purchaser Classes

While the two actions pending before this Court allege similar issues of fact and law -- both claiming Apple engaged in illegal tying conduct, monopolization and unfair competition related to its iPod and iTune products -- the Somers action is an indirect purchaser action while the Apple iPod iTunes Anti-Trust Litigation is a direct purchaser action. As such, the two proposed classes stand in potential conflict to each other as they are required to prove different sets of facts and meet different

8 tests under the law. 9 II. 10 11 CONSOLIDATION FOR THE LIMITED PURPOSES OF SCHEDULING AND PRETRIAL DISCOVERY WOULD PROMOTE EFFICIENCY Plaintiff Somers agrees with the direct purchaser plaintiffs that limited consolidation of the

12 direct and indirect purchaser actions is appropriate for scheduling and pretrial discovery. 13 Coordination of scheduling and discovery will promote efficiency and reduce expenses for all. 14 III. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -2/s/ Helen I. Zeldes HELEN I. ZELDES 249 S. Highway 101, #370 Solana Beach, CA 92075 Telephone: [phone] (fax) HAEGGQUIST LAW GROUP ALREEN HAEGGQUIST 501 West Broadway, Suite A-276 San Diego, CA 92101 Telephone: [phone] (fax) CONCLUSION For the foregoing reasons, the indirect purchaser Plaintiff respectfully requests that this Court only consolidate these cases, if at all, for the limited purposes of scheduling and pretrial discovery. DATED: May 2, 2008 LAW OFFICE OF HELEN I. ZELDES

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MEHRI & SKALET, PLLC STEVEN A. SKALET CRAIG L. BRISKIN 1250 Connecticut Ave. NW, Suite 300 Washington, DC 20036 Telephone: [phone] (fax) Attorneys for Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on May 2, 2008, I electronically filed the following documents with the

11 Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail 12 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 13 caused the foregoing document or paper to be mailed via the United States Postal Service to the non14 CM/ECF participants indicated on the attached Manual Notice List and Service List: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -3s/ HELEN I. ZELDES HELEN I. ZELDES LAW OFFICES OF HELEN I. ZELDES HELEN I. ZELDES (220051) 249 S. Highway 101, #370 Solana Beach, CA 92075 Telephone: [phone] (fax) E-mail: [e-mail] · Indirect Purchaser Plaintiff's Response to Court's Order Regarding Consolidation

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Mailing Information for a Case 5:05-cv-00037-JW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. · · · · · · · · · · · · · Francis Joseph Balint , Jr [e-mail] Michael David Braun [e-mail] Andrew S. Friedman [e-mail],[e-mail] Roy A. Katriel [e-mail],[e-mail] Thomas J. Kennedy [e-mail] Caroline Nason Mitchell [e-mail],[e-mail],[e-mail] Robert Allan Mittelstaedt [e-mail],[e-mail] Brian P Murray [e-mail] Jacqueline Sailer [e-mail] Adam Richard Sand , Esq [e-mail] John J. Stoia , Jr [e-mail] Tracy Strong [e-mail],[e-mail] Bonny E. Sweeney [e-mail],[e-mail],[e-mail]

Manual Notice List

28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -4-

1 The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy 2 this list into your word processing program in order to create notices or labels for these recipients. 3
Todd David Carpenter

4 Bonnett, Fairbourn, Friedman, & Balint 5 6 7 8
2901 N. Central Avenue Suite 1000 Phoenix, AZ 85012

Mailing Information for a Case 5:07-cv-060507-HRL

9 Electronic Mail Notice List 10 The following are those who are currently on the list to receive e-mail notices for this case. 11 12 13 14 15 16 17 18 Manual Notice List 19 The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy 20 this list into your word processing program in order to create notices or labels for these recipients. 21 · No manual recipients 22 23 24 25 26 27 28 INDIRECT PURCHASER PLAINTIFF'S RESPONSE TO COURT'S ORDER RE. CONSOLIDATION CASE NO. 5:07-CV-060507-HRL -5· · · · Craig L. Briskin [e-mail] Alreen Haeggquist [e-mail] Steven A. Skalet [e-mail] Helen I. Zeldes [e-mail]