In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 235

MOTION to Compel Arbitration by Defendant Apple, Inc. . Motion set for 1/12/2012 02:00 PM before Judge Carl Barbier. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Reference: All Actions)(Urquhart, Quentin) Modified on 10/21/2011 (gec, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: APPLE iPHONE 3G AND 3GS
“MMS” MARKETING AND SALES
PRACTICES LITIGATION

CIVIL ACTION

THIS DOCUMENT RELATES TO:

SECTION “J”
JUDGE BARBIER

MDL No. 2116

All Actions
MAGISTRATE JUDGE WILKINSON
DEFENDANT APPLE INC.’S MOTION TO COMPEL ARBITRATION
NOW INTO COURT, through undersigned counsel, comes Defendant, Apple Inc.
(“Apple”), who moves this Court for an order compelling plaintiffs to arbitrate their claims
against Apple. For the reasons set forth more fully in the attached memorandum of points
and authorities in support of Apple’s motion, this Court should compel arbitration of
plaintiffs’ claims against Apple under plaintiffs’ ATTM wireless services agreement
(“WSA”).
The Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740
(2011) establishes that the arbitration provision in plaintiffs’ ATTM wireless services agreement
(“WSA”) is enforceable. Plaintiffs’ claims against both Apple and ATTM rely heavily – if not
entirely – on the WSA, and their claims against Apple and ATTM are inextricably intertwined.
Plaintiffs cannot deny Apple the right to compel the arbitration mandated by the WSA in light of
their heavy reliance on that contract to support their claims. Consequently, under applicable law,
plaintiffs are equitably estopped from refusing to arbitrate their claims against Apple.

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Moreover, Apple has not waived its right to arbitration. Plaintiffs have not and cannot
meet the required elements to show waiver. Consequently, this Court should compel arbitration
of plaintiffs’ claims against Apple under the WSA.
WHEREFORE, Defendant, Apple Inc., respectfully moves this Court to compel
arbitration of plaintiffs’ claims against Apple under plaintiffs’ ATTM wireless services
agreement.

Respectfully submitted,
__/s/ Quentin F. Urquhart___________
IRWIN FRITCHIE URQUHART & MOORE, LLC
QUENTIN F. URQUHART, JR. (#14475)
DAVID W. O’QUINN (#18366)
DOUGLAS J. MOORE (#27706)
400 Poydras Street, Suite 2700
New Orleans, Louisiana 70130
Telephone: [phone]
Facsimile: [phone]
PENELOPE A. PREOVOLOS (admitted pro hac vice)
STUART C. PLUNKETT (admitted pro hac vice)
SUZANNA P. BRICKMAN (admitted pro hac vice)
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: [phone]
Counsel for Apple Inc.

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing pleading has been electronically filed on
October 20, 2011, with the Clerk of Court by using the CM/ECF system which will send a notice
of electronic filing.
__/s/ Quentin F. Urquhart_
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