In Re: iPhone/iPad Application Consumer Privacy Litigation

Filing 54

REPLY (re #42 MOTION to Dismiss Defendant Apple Inc.'s Notice of Motion and Motion to Dismiss Plaintiffs' First Amended Consolidated Class Action Complaint Pursuant to Rules 12(b)(1) and 12(b)(6); Supporting Memorandum of Points and Authorities ) filed byApple, Inc.. (Attachments: #1 Declaration of Marc J. Zwillinger)(Zwillinger, Marc) (Filed on 4/5/2012)

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Marc J. Zwillinger (pro hac vice)
[e-mail]
ZWILLGEN PLLC
1705 N St NW
Washington, DC 20036
Telephone: [phone]
Penelope A. Prevolos (CA SBN 87607)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
Apple Inc., a California Corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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In Re: iPhone/iPad Application Consumer
Privacy Litigation,

Case No. 5:11-md-02250-LHK
DECLARATION OF MARC
ZWILLINGER IN SUPPORT OF
APPLE INC.’S MOTION TO
DISMISS THE FIRST AMENDED
CONSOLIDATED CLASS ACTION
COMPLAINT

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Case No. 5:11-md-02250-LHK
Declaration of Marc Zwillinger in Support of Apple Inc.’s Motion to Dismiss the First
Consolidated Class Action Complaint

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I, Marc J. Zwillinger, declare as follows:
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I am an attorney at law admitted to practice pro hac vice before this Court, as well

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as the Courts of the State of Illinois and the District of Columbia. I am the founder of

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ZwillGen PLLC and counsel for Defendant Apple Inc. (“Apple”) in this litigation. I make

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this declaration upon personal knowledge and could and would competently testify to the

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matters below if called to do so.

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2.

Attached hereto as Exhibit A is a true and correct copy of relevant excerpts of the

official transcript of this Court’s May 25, 2011 hearing.
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Attached hereto as Exhibit B is a true and correct copy of Apple’s Q&A on

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Location Data, http://www.apple.com/pr/library/04/27Apple-Q-A-on-Location-Data.html,

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which is referenced in Plaintiffs’ complaint at paragraph 145, note 13.

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4.

I declare under penalty of perjury under the laws of the United States of America

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that the foregoing is true and correct and that this declaration was executed on April 5, 2012,

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at Park City, Utah.

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/s/Marc J. Zwillinger

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Marc J. Zwillinger

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Case No. 5:11-md-02250-LHK
Declaration of Marc Zwillinger in Support of Apple Inc.’s Motion to Dismiss the First
Consolidated Class Action Complaint

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EXHIBIT A

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Case No. 5:11-md-02250-LHK
Declaration of Marc Zwillinger in Support of Apple Inc.’s Motion to Dismiss the First
Consolidated Class Action Complaint

Case5:10-cv-05878-LHK Document138

Filed06/10/11 Page1 of 78

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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IN RE: IPHONE
APPLICATION LITIGATION

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_________________________

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C-10-05878 LHK
SAN JOSE, CALIFORNIA
MAY 25, 2011
PAGES 1-78

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

KAMBER LAW
BY: SCOTT A. KAMBER AND
DEBORAH KRAVITZ
100 WALL STREET, 23RD FLOOR
NEW YORK, NEW YORK 10005

FOR APPLE:

HOGAN LOVELLS
BY: MICHAEL L. CHARLSON AND
MAREN J. CLOUSE
525 UNIVERSITY AVENUE, 4TH FLOOR
PALO ALTO, CALIFORNIA 94301

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BY: JEREMY R. WILSON
302 N. MARKET STREET, SUITE 501
DALLAS, TEXAS 75202

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APPEARANCES CONTINUED ON NEXT PAGE

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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595
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Case5:10-cv-05878-LHK Document138

Filed06/10/11 Page2 of 78

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APPEARANCES (CONTINUED)

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FOR ADMOB:

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DURIE TANGRI
BY: MICHAEL H. PAGE
217 LEIDESDORFF STREET
SAN FRANCISCO, CALIFORNIA

94111

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FOR ADMAR AND
MELLENIAL MEDIA:

COOLEY, GODWARD, KRONISH
BY: MICHAEL RHODES
101 CALIFORNIA STREET, 5TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111

FOR FLURRY AND
PINCH MEDIA:

GIBSON, DUNN & CRUTCHER
BY: JOSHUA A. JESSEN
3161 MICHELSON DRIVE
IRVINE, CALIFORNIA 92612

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FOR
TRAFFICMARKETPLACE.COM:

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K&L GATES
BY: DAVID A. BATEMAN
925 FOURTH AVENUE, SUITE 2900
SEATTLE, WASHINGTON 98104

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FOR NPR:

COVINGTON & BURLINGTON
BY: MALI B. FRIEDMAN
ONE FRONT STREET, 35TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111

FOR MOBCLIX:

DLA PIPER
BY: CARTER W. OTT
555 MISSION STREET, SUITE 2400
SAN FRANCISCO, CALIFORNIA 94105

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Case5:10-cv-05878-LHK Document138

Filed06/10/11 Page39 of 78

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PENDING AT THE FIRST CASE MANAGEMENT CONFERENCE ON

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APRIL 6TH THAT WE HAD.

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SINCE THAT POINT IN TIME, THERE WAS A

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CLUSTER OF CASES THAT WERE FILED IMMEDIATELY AFTER

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A PRESS STORY BROKE ABOUT ONE PARTICULAR

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APPLICATION, PANDORA, REVEALING IN ITS S.E.C.

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STATEMENT THAT THERE WAS A GRAND JURY PROCEEDING

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ASKING THEM QUESTIONS ABOUT THE APPLICATIONS.

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FRANKLY, IN MY EXPERIENCE, YOUR HONOR, TO

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CERTAIN ANTITRUST PLAINTIFFS' COUNSEL AND CERTAIN

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MASS TORT PLAINTIFFS' COUNSEL, WHEN THEY SEE THE

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WORDS "GRAND JURY" APPEAR, IT'S A LITTLE BIT LIKE

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THE BELL FOR PAVLOV'S DOGS.

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AND WHAT HAPPENED WAS THERE ARE -- ALMOST

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ALL OF THE COMPLAINTS THAT WERE THEN FILED IN A

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CLUSTER WERE VERBATIM COPIES OF THE COMPLAINTS THAT

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WERE FILED IN THE NORTHERN DISTRICT OF CALIFORNIA.

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SOME OF THOSE EVEN COPIED THE PLAINTIFFS'

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ALLEGATIONS, FORGETTING TO CUT AND PASTE OUT THE

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WORD -- FORGETTING TO TAKE OUT THE WORDS

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"RELOCATING TO SAN JOSE FOR INTRADISTRICT

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ASSIGNMENT."

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SOME ACTUALLY COPIED THE PLAINTIFFS'
ALLEGATIONS THEMSELVES.
SO I DON'T MEAN TO BE, YOU KNOW, FLIP
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Case5:10-cv-05878-LHK Document138

Filed06/10/11 Page40 of 78

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ABOUT SOME OF THE OTHER CASES, BUT WHEN ONE LOOKS

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BELOW THE SURFACE, YOU SEE THAT MOST OF THESE OTHER

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CASES ARE, IN FACT, NOT UNIQUE CASES AT ALL, BUT

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ARE MORE LIKE PLAYS BY PLAINTIFFS' COUNSELS TO TRY

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TO PULL A CASE THAT ALL OF A SUDDEN, SIX MONTHS

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AFTER IT WAS ORIGINALLY FILED, SEEMED INTERESTING

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TO THEM.

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THERE WAS ALSO A STORY THAT BROKE ON
LITERALLY THE SAME DAY THAT THE CONSOLIDATED

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COMPLAINT WAS FILED, IT PUBLICLY BROKE, WHICH DEALT

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WITH THE ISSUE THAT'S BEEN MENTIONED A FEW TIMES

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TODAY REGARDING THE ISSUE OF GEO LOCATION.

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THAT GEO LOCATION ISSUE DOES EXIST IN THE

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CONSOLIDATED COMPLAINT AND IT IS RELATED AND GROWS

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OUT OF THE SAME --

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THE COURT:

I'M SORRY TO INTERRUPT YOU,

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BUT HOW DO YOU SEE IT PLAYING OUT?

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TO THEN HAVE ONE COUNSEL FROM EACH OF THE CASES

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SERVE ON THE EXECUTIVE COMMITTEE?

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THINK YOUR --

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MR. KAMBER:

ARE YOU GOING

WHAT DO YOU

IT WOULD BE -- THE WAY I

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WOULD ENVISION IT, YOUR HONOR, WOULD BE THAT YOU

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WOULD NOT HAVE THAT, BECAUSE OBVIOUSLY IF YOU HAD

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18 MEMBERS OF THE EXECUTIVE COMMITTEE, YOU WOULD DO

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EXACTLY WHAT THIS COURT WAS CONCERNED ABOUT WHEN WE
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Case5:10-cv-05878-LHK Document138

Filed06/10/11 Page78 of 78

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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EXHIBIT B

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Case No. 5:11-md-02250-LHK
Declaration of Marc Zwillinger in Support of Apple Inc.’s Motion to Dismiss the First
Consolidated Class Action Complaint