Lalo v. Apple, Inc et al

Filing 99

REPLY (re 72 MOTION to Stay Defendant Apple Inc.'s Notice of Motion and Motion to Stay Proceedings and Memorandum of Points and Authorities in Support Thereof ) filed byApple, Inc. (Charlson, Michael) (Filed on 5/18/2011)

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Michael L. Charlson (Bar No. 122125)
Maren J. Clouse (Bar No. 228726)
HOGAN LOVELLS US LLP
525 University Avenue, 4th Floor
Palo Alto, California 94301
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Christopher Wolf (Admitted Pro Hac Vice)
HOGAN LOVELLS US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Clayton C. James (Admitted Pro Hac Vice)
HOGAN LOVELLS US LLP
One Tabor Center, Suite 1500
1200 Seventeenth Street
Denver, Colorado 80202
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Attorneys for Defendant
APPLE INC., a California corporation
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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In re iPhone Application Litigation

Case No. CV-10-5878 LHK (PSG)
DEFENDANT APPLE INC.’S REPLY IN
FURTHER SUPPORT OF MOTION TO
STAY PROCEEDINGS
Date: May 25, 2011
Time: 2:00 p.m.
Place: Courtroom 4
The Honorable Lucy H. Koh

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REPLY ISO MOTION TO STAY PROCEEDINGS
Case No. CV 10-5878 LHK

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I.

INTRODUCTION

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Defendant Apple Inc. (“Apple”) respectfully submits this reply in further support of its

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Motion to Stay these proceedings pending the resolution by the Judicial Panel on Multidistrict

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Litigation (“the Panel”) of Apple’s motion to transfer related actions to the United States District

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Court for the Northern District of California for coordinated or consolidated pretrial treatment

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pursuant to 28 U.S.C. §1407 (“the MDL Motion”). Dkt. No. 72. That Motion to Stay was joined

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by defendants AdMob, Inc. and Flurry, Inc. Dkt. Nos. 88, 89. Apple’s MDL motion seeks

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transfer of eleven actions currently pending in six jurisdictions. It is reasonable, though

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obviously not certain, that the MDL Panel may transfer those actions to this district for

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coordinated or consolidated treatment. Most parties joined Apple’s request for transfer to this

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Court, although certain plaintiffs requested transfer to Alabama or Puerto Rico. There remains a

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chance that the Panel will transfer to another jurisdiction. Because of these uncertainties—as to

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the way in which these actions should and will be handled if they are transferred here and as to

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whether the transfer will be to this Court at all (despite unanimity among the parties to these

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Consolidated Actions that they should be)—this Court’s and the parties’ resources will be more

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efficiently used by awaiting the transfer decision than by proceeding with these actions, only to

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see many of the issues adjudicated again once the MDL motion is decided. If these actions

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proceed, the Court could be in a position of deciding Apple’s motion to dismiss the Consolidated

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Complaint, which could then be superseded by an administrative complaint governing the MDL

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actions.

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Apple’s motion seeks to conserve the resources of this Court and the parties to these

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actions by briefly staying the proceedings to avoid wasting the Court’s and the parties’ time and

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resources litigating issues or complaints that will necessarily change once the Panel orders

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transfer of the related actions pending around the country to a single jurisdiction for pretrial

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proceedings. It is routine procedure in this district and this division to stay proceedings pending

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an MDL transfer order for precisely these reasons. Plaintiffs proffer no reason to impose that

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burden on the Court and the parties other than their own tactically driven desire to procedurally

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advance the proceedings in this Court. That is not sufficient justification for putting the Court

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REPLY ISO MOTION TO STAY PROCEEDINGS
Case No. CV 10-5878 LHK

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and the parties to the expense of litigating a complaint’s allegations or discovery issues that will

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need to be revisited when the actions are transferred and coordinated or consolidated in the

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transferee court. A stay is therefore warranted.

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II.

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PROCEDURAL HISTORY OF THESE ACTIONS
At the time of the Initial Status Conference on April 6, 2011, and the entry of the April 7,

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2011 Scheduling Order, Apple had not filed its MDL Motion and had not made a determination

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whether to do so. On April 14, 2011, Apple filed its motion to transfer with the MDL Panel,

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which is now fully briefed. The April 7 Scheduling Order therefore did not take into account how

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the progress of these actions and considerations of judicial economy would be affected by the

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potential coordination or consolidation of multiple other actions in a few months’ time. Apple

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promptly raised these considerations with its Motion to Stay.1

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III.

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STATUS OF MDL PROCEEDINGS AND RELATED ACTIONS
Plaintiffs make much of the fact that none of the other actions is as procedurally advanced

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as these actions. See Opp. at 2, 4-6. But the procedural status of cases pending in other

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jurisdictions is irrelevant to whether this matter should proceed before this Court while Apple’s

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MDL Motion is pending.2

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Apple’s goal is straightforward: Apple wishes to prevent all the courts presently tasked

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with the related actions, and the parties to them, from expending their time and resources

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adjudicating motions, engaging in discovery, and resolving other disputes before the cases are

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coordinated or consolidated. That coordination or consolidation, wherever it may occur, will

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likely result in non-trivial changes to the scope and complexion of the litigation. The related

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actions involve overlapping putative classes of plaintiffs, overlapping legal and factual claims,

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Plaintiffs think it “significant” that Apple noticed its Motion to Stay for July 21, 2011. Pls.’
Mem. in Opp. to Apple’s Motion to Stay (“Opp.”) at 3. Apple did so after calling the clerk for
the next available hearing date as it was proceeding to file its Motion, consistent with the Court’s
instructions. Apple was preparing to seek expedited treatment of the Motion but did not need to
do so because the Court quickly acted sua sponte to hear the Motion concurrently with the May
25, 2011 Case Management Conference. Dkt. No. 74.
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Moreover, as Plaintiffs themselves explain, Apple is either seeking stays of the related actions,
or the actions are not advancing because the defendants are awaiting service of the complaints.
Opp. at 4, 6. If plaintiffs in any other jurisdictions take steps to advance those actions, Apple
intends to seek appropriate relief from those courts.
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and overlapping defendants. But the cases are not identical; there are defendants, claims, and

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facts alleged in other related actions not presently before this Court in the Consolidated

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Complaint.3 Any decision this Court makes in these consolidated actions is likely to have

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implications for, but not fully resolve, issues raised in the related actions currently subject to

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Apple’s MDL Motion. Neither this Court nor any other should be called upon to waste its

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resources in this situation, as Plaintiffs would have the Court do. Nor should Apple and other the

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other defendants facing litigation in multiple jurisdictions be put to the burden and expense of

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adjudicating issues ad seriatim while awaiting the determination of the Panel decision designed to

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prevent that from happening.

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IV.

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PLAINTIFFS OFFER INSUFFICIENT JUSTIFICATION FOR PROCEEDING
WITH THESE ACTIONS
Plaintiffs succeed in doing little more than pointing out that the Court is not required to

stay these actions pending resolution of the MDL motion. See Opp. at 5-6. That is true, but it
does not explain why the Court should proceed. Plaintiffs find little support for that proposition
in the case law. In one case Plaintiffs cite, the court actually stayed the proceedings. Bd. of Trs.
of the Teachers’ Ret. Sys. of the State of Ill. v. Worldcom, Inc., 244 F. Supp. 2d 900, 906 (N.D. Ill.
2002). With one exception, the remaining cases they cite in which courts declined to stay
proceedings were resolved that way because of pending meritorious remand motions. See Ill.
Mun. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 852 (7th Cir. 2004) (stay “not required where
the court concludes that it lacks subject matter jurisdiction”); Baker v. Asbestos Defs., No. C 042066, 2004 WL 2196814, at *3 (N.D. Cal. Sept. 27, 2004) (declining to stay action pending
JPML motion after considering and granting motion to remand); Tortola Rests., L.P. v. KimberlyClark Corp., 987 F. Supp. 1186, 1188-89 (N.D. Cal. 1997) (denying motion to stay because of
pending motion to remand, which court granted). There is no challenge to the Court’s jurisdiction
in these actions.

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Plaintiffs fare no better with Terkel v. AT&T Inc., Nos. C2837, 06C2680, 2006 WL

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For instance, plaintiffs in Acosta, et al. v. Apple, Inc., et al., Case No. 11-CV-01326-JAF (D.
P.R.), assert an action for conversion against eight app developers, representing both parties and a
cause of action not at issue in these actions.
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1663456, at *2 (N.D. Ill. June 9, 2006). In that case, the court declined to stay the action pending

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an MDL motion to transfer because the defendants had failed to move for a stay of the most

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advanced case, which was not pending in the district to which defendants sought MDL transfer of

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the actions. Id. at *2. The Terkel court therefore reasoned that the defendants “appear to be

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willing to have more than one judge decide the allegedly common or overlapping issues.” Id.

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That is not the case here. To the contrary, Apple has consistently acted to ensure that all common

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and overlapping issues can be determined before trial by a single judge.

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Nor does Terkel support Plaintiffs’ argument that they will be prejudiced by a stay.
Plaintiffs in the Terkel case alleged that the defendants were facilitating ongoing government

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surveillance of their telephone conversations. Id. at *1. On that basis, the Terkel plaintiffs were

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seeking a preliminary injunction. Id. at *3. Plaintiffs in these actions have not sought a

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preliminary injunction, thereby undermining their claim that determination of their allegations

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cannot await the outcome of the Panel’s decision, which is expected in two to three months’ time.

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V.

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CONCLUSION
Plaintiffs fail to explain why this Court and the defendants should be put to the burden and

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inefficiency of proceeding with these actions pending the coordination or consolidation of all

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related actions requested by Apple’s MDL Motion. Accordingly, Apple respectfully requests that

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the Court grant its Motion to Stay these proceedings pending the resolution by the Judicial Panel

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on Multidistrict Litigation of Apple’s motion to transfer related actions to the United States

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District Court for the Northern District of California for coordinated or consolidated pretrial

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treatment pursuant to 28 U.S.C. §1407.

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Dated: May 18, 2011

HOGAN LOVELLS US LLP

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By: /s/ Michael L. Charlson
Michael L. Charlson

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Attorneys for Defendant
APPLE INC., a California corporation

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REPLY ISO MOTION TO STAY PROCEEDINGS
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