Trujillo v. Apple Computer, Inc. et al

Filing 96

MOTION by Defendant AT&T Mobility, LLC for leave to file Supplemental Authority In Support of Its Motion to Compel Arbitration and Dismiss Action. AT&T Mobility LLC's Response to Plaintiff's Motion For Leave to File Notice of Supplemental Authority, Document #94. (Attachments: # 1 Exhibit 1, # 2 Supplement Second Supplemental Brief, # 3 Declaration Neal S. Berinhout, # 4 Declaration Harry Bennett, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3)(Reynolds, Sarah)

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Trujillo v. Apple Computer, Inc. et al Doc. 96 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOSE TRUJILLO, individually and on behalf of all others similarly situated, Plaintiff, v. APPLE COMPUTER, INC., a California Corporation, and AT&T MOBILITY LLC, a Georgia Corporation, Defendants. DEFENDANT AT&T MOBILITY LLC'S RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY AND MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF ITS MOTION TO COMPEL ARBITRATION AND DISMISS ACTION Plaintiff Jose Trujillo has requested leave to submit as supplemental authority an order denying ATTM's motion to compel arbitration in a case in federal district court in California. Stiener v. Apple Computer, Inc., 2008 WL 691720 (N.D. Cal. Mar. 12, 2008), appeal pending, No. 08-15612 (9th Cir.). Although ATTM has no objection to the Court's consideration of the Stiener order, that order has little bearing here. The court in Stiener evaluated ATTM's No. 07 CV 04946 Judge Kennelly Mag. Judge Ashman arbitration provision under California law. Under the court's view of California law--which we ubmit is mistaken--an arbitration provision requiring individual adjudication is unconscionable unless it "functions as well as a class action would" in ensuring "that all" putative class members "would recover more, on average," in individual arbitration than in a class action. Id. at *12, *13 (emphasis in original). By contrast, the Illinois Supreme Court has held that "[i]t is not unconscionable or even unethical for a business to attempt to limit its exposure to class Dockets.Justia.com arbitration or litigation" (857 N.E.2d at 278) so long as "the agreement containing the waiver is not burdened by other features limiting the ability of the plaintiff to obtain a remedy for the particular claim being asserted in a cost-effective manner." Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 274, 278 (Ill. 2006). As we have explained, ATTM's arbitration provision is fully enforceable under Kinkel. Arb. Mem. (Dkt. No. 37) 810; Reply Mem. (Dkt. No. 77) 613. To the extent that other states' views on unconscionability are relevant here, another federal district court has upheld ATTM's arbitration provision under Arkansas law. See Davidson v. Cingular Wireless LLC, 2007 WL 896349 (E.D. Ark. Mar. 23, 2007). It is true that the Stiener court held that the FAA, as interpreted by the Ninth Circuit, does not preclude California from deeming arbitration provisions requiring individual adjudication to be unconscionable. 2008 WL 691720, at *16*17. No other circuit, however, shares the Ninth Circuit's view. For example, Judge Buckwalter of the Eastern District of Pennsylvania recently held that, under the Third Circuit's interpretation of the FAA in Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007), the FAA does preempt Pennsylvania law deeming such arbitration provisions to be unconscionable. Weinstein v. AT&T Mobility Corp., 2008 WL 1914754, at *5 (E.D. Pa. May 1, 2008) (attached). ATTM respectfully requests leave to submit Weinstein as additional authority in support of its motion to compel arbitration. 2 Dated: May 5, 2008 Respectfully submitted, /s Sarah E. Reynolds Victoria Collado (#6204015) Sarah E. Reynolds (#6287186) MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Tel: (312) 782-0600 Fax: (312) 263-7711 Evan M. Tager (pro hac vice) Archis A. Parasharami (pro hac vice) Kevin Ranlett (pro hac vice) MAYER BROWN LLP 1909 K Street, N.W. Washington, DC 20006 Tel: (202) 263-3000 Fax: (202) 263-5000 Attorneys for Defendant AT&T Mobility LLC 3 CERTIFICATE OF SERVICE I, Sarah E. Reynolds, an attorney, I hereby certify that on May 5, 2008, I electronically filed the foregoing DEFENDANT AT&T MOBILITY LLC'S RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY AND MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF ITS MOTION TO COMPEL ARBITRATION AND DISMISS ACTION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: James R. Rowe THE LAW FIRM OF JAMES R. ROWE & ASSOCIATES 205 Wwest Randolph, Suite 1430 Chicago, IL 60603 (312) 345-1357 rowelegal@gmail.com Larry D. Drury LARRY D. DRURY, LTD. 205 West Randolph, Suite 1430 Chicago, IL 60603 (312) 346-7950 ldrurylaw@aol.com Patrick T. Stanton SCHWARTZ COOPER CHARTERED 180 North LaSalle Street, Suite 2700 Chicago, Illinois 60601 pstanton@scgk.com Penelope A. Preovolos Johanna W. Roberts MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 ppreovolos@mofo.com Respectfully submitted, /s/Sarah E. Reynolds Dated: May 5, 2008 Attorney for Defendant AT&T Mobility LLC

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