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

Filing 275

REPLY to Response to Motion filed by Defendant Apple Inc. re 268 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(B)(7). (Reference: All Cases)(gec, )

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

MDL No. 2116

THIS DOCUMENT RELATES TO ALL
CASES

SECTION “J”
JUDGE BARBIER
MAGISTRATE JUDGE WILKINSON

REPLY IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION TO DISMISS
PURSUANT TO FRCP 12(B)(7)

TABLE OF CONTENTS
Page
I.

INTRODUCTION .............................................................................................................. 1

II.

ARGUMENT ...................................................................................................................... 1
A.
B.

Because Plaintiffs’ Claims Against Apple Are Predicated on the
WSA and ATTM’s Conduct, ATTM is a Required Party Under
Rule 19 .................................................................................................................... 3

C.

This Case Cannot Proceed in ATTM’s Absence .................................................... 5

D.

Plaintiffs’ Analysis of Other Cases Involving Apple and ATTM Is
Flawed ..................................................................................................................... 7

E.
III.

Plaintiffs’ Claims Are Predicated on the WSA and ATTM’s
Alleged Conduct Under the WSA........................................................................... 1

Plaintiffs Cannot Avoid a Rule 19 Analysis By Relying on Rule 14 ..................... 9

CONCLUSION ................................................................................................................. 10

i

I.

INTRODUCTION
Plaintiffs ignore the express allegations of their own complaints as well as direct

representations they have repeatedly made to this Court in a transparent attempt to avoid
Concepcion’s requirement that their claims be arbitrated. This tactic cannot succeed. Plaintiffs’
claims place squarely at issue the meaning of ATTM’s Wireless Services Agreement (“WSA”)
and ATTM’s obligations thereunder. Plaintiffs’ argument that ATTM is not an indispensable
party to those claims is specious.
Plaintiffs have claimed, and continue to claim in their opposition, that the WSA allegedly
required ATTM to provide plaintiffs with MMS but that ATTM did not do so. Plaintiffs also
claim that ATTM billed plaintiffs for MMS services but did not provide them. Plaintiffs argue
that their claims are against Apple because Apple “failed to disclose” that ATTM allegedly did
not provide MMS services promised in ATTM’s WSA and that ATTM allegedly billed plaintiffs
for MMS services they did not receive. But those claims require that this Court or a jury first
find that ATTM violated the terms of the WSA or engaged in improper billing practices.
Plaintiffs’ claims thus cannot be adjudicated without ATTM, and plaintiffs’ effort to end run
Concepcion must be rejected.
Plaintiffs seek to avoid this obvious result by arguing that the Court should not reach the
indispensable party issue because Apple could implead ATTM. But that argument would
deprive Rule 12(b)(7) of all meaning and is wrong as a matter of law. Rule 12(b)(7) and Rule 19
preclude plaintiffs from adjudicating its claims against Apple without ATTM. Apple’s motion
should be granted.
II.

ARGUMENT
A.

Plaintiffs’ Claims Are Predicated on the WSA and ATTM’s Alleged Conduct
Under the WSA

Plaintiffs’ claims are based on the WSA and ATTM’s alleged obligations under the
WSA. Plaintiffs accuse Apple of trying to “confuse the Court as to the true nature of Plaintiffs’
claims against it,” but the contrary is true. Apple relies solely on plaintiffs’ own allegations and
1

statements to the Court to demonstrate that their claims against Apple are predicated on the WSA
and ATTM’s alleged conduct.
The underlying complaints, which plaintiffs do not even acknowledge in their opposition,
expressly allege that although MMS was a “standard feature” in the WSA (Carbine FAC ¶¶ 3, 7,
31, 57), ATTM failed to provide the service. (Carbine FAC ¶¶ 4-7) Similarly, plaintiffs allege
that ATTM wrongfully billed iPhone 3G and iPhone 3GS users for MMS services that they did
not receive. (Carbine FAC ¶¶ 10, 55, 56, 58) Plaintiffs’ allegations regarding Apple’s supposed
“failure to disclose” squarely depend on these allegations regarding ATTM and the WSA.
Moreover, plaintiffs have made numerous statements to the Court making clear that, contrary to
their current argument, their claims rely on the WSA and ATTM’s conduct under the WSA.
(Mot. at 4-5)
Rather than confront the complaints’ allegations and other statements to the Court about
the basis of their claims against Apple, plaintiffs rely instead on an inaccurate and misleading
description of how their three theories against Apple — first set forth in a November 2011 filing
(Dkt. Nos. 262, 264) — have nothing to do with the WSA or ATTM. Notwithstanding plaintiffs’
protestations to the contrary, their three theories depend entirely on an interpretation of the terms
of the WSA and on adjudication of ATTM’s obligations under the WSA. (Mot. at 5-6)
Plaintiffs respond by setting forth lists of the supposed elements they need to prove their
theories and argue that the elements are either “undisputed” or concern only Apple. (Opp’n at 56) Missing from plaintiffs’ lists, however, is the very crux of what plaintiffs must prove — that
ATTM breached a contractual duty owed to customers under the WSA or that ATTM engaged in
improper billing practices. To find that Apple “failed to disclose” that ATTM allegedly did not
provide MMS services promised in ATTM’s WSA or that ATTM engaged in improper billing
practices, the Court or a jury must first make findings regarding the WSA and ATTM’s conduct.
Plaintiffs attempt to evade the importance of ATTM and the WSA to their theory of
liability against Apple by arguing that certain “elements” of their theories are “undisputed.”
Plaintiffs’ argument is incorrect. The proper construction of ATTM’s WSA and ATTM’s billing
2

practices requires ATTM’s participation. Undoubtedly ATTM would dispute that it breached its
contractual obligations or engaged in improper billing. Plaintiffs’ belief that they could
overcome such arguments with supposedly “undisputed” facts is irrelevant.
In sum, plaintiffs’ complaints and numerous representations to the Court leave no room
for dispute that plaintiffs’ claims are predicated on the WSA and ATTM’s alleged conduct.
B.

Because Plaintiffs’ Claims Against Apple Are Predicated on the WSA and
ATTM’s Conduct, ATTM is a Required Party Under Rule 19

Plaintiffs’ opposition relies on their incorrect assertion that the allegations regarding the
WSA and ATTM are mere background and thus need not be resolved if the case proceeds against
Apple. As demonstrated above, plaintiffs are wrong. Plaintiffs’ assertion that ATTM is not a
required party (Opp’n at 8-13) thus necessarily fails.
Importantly, plaintiffs concede that parties to a contract are necessary litigants under
Rule 19 where claims require interpretation of the rights and obligations imposed by that
contract. (Opp’n at 8; see also Mot. at 12 (citing cases)) That is precisely the circumstance here,
because each of plaintiffs’ three theories hinges on interpretation of a contract (the WSA), the
terms of that contract, and on adjudication of ATTM’s alleged obligations to plaintiffs under that
contract. Accordingly, plaintiffs’ reliance on U.S. Marine, Inc. v. United States, No. 08-2572,
2008 WL 4443054 (Sept. 26, 2008), where — unlike the WSA here — the contract at issue was
merely “discussed” and was thus entirely contextual, is misplaced.1 Indeed, none of the cases
plaintiffs rely on supports their assertion that ATTM is not necessary to this litigation.2
1

In that case, plaintiff alleged that the defendant (the Department of Defense) misappropriated
trade secrets. The defendant argued that VT Halter, an absent party with which the defendant
had contracted, was necessary under Rule 19. U.S. Marine, 2008 WL 4443054, at *1. The Court
disagreed, finding that reference to the contract was merely contextual — it established only how
the Department of Defense learned of the alleged trade secrets but did not present any issue that
had to be decided. Id. at *2, 3 (although “it [was] clear to the Court that . . . the Halter-DOD
contract [would] be discussed . . ., it [was] not the basis of [the plaintiff’s trade secrets] cause of
action”). Moreover, the Court specifically noted that the plaintiff was not a party to the contract
and was not in privity with the purportedly necessary party. Id. Here, it is plaintiffs, not Apple,
who are in contract with the absent party. And that contract is at the core of plaintiffs’ theories
of liability. (See Dkt. No. 204 at 9 (plaintiffs’ “primary claims for relief” relate to whether
“AT&T [was] obligated by contract to provide [MMS],” “AT&T . . . charg[ing] iPhone users
purchasing a messaging plan [that is part of the WSA] for [MMS],” and Apple’s “failure to
3

The law is clear: when the resolution of an action will necessarily require interpretation
of a contract, the parties to that contract are required parties under Rule 19. (Mot. at 10 (citing
Sch. Dist. v. Sec’y of the U.S. Dep’t of Educ., 584 F.3d 253, 303 (6th Cir. 2009); Gulf Catering
Co. v. Kellogg Brown & Root Servs., Inc., No. H-09-cv-2990, 2010 U.S. Dist. LEXIS 5883, at
*15-16 (S.D. Tex. Jan. 26, 2010); Siemens Bldg. Techs., Inc. v. Jefferson Parish, No. 03-2272,
2004 U.S. Dist. LEXIS 16153, at *15 (E.D. La. Aug. 16, 2004))) Plaintiffs’ claims against
Apple fall squarely within this rule as ATTM and plaintiffs are the parties to the contract at issue.
Plaintiffs also attempt to argue that ATTM has no interest relating to the subject matter of
this litigation. (Opp’n at 10-12) But the arguments plaintiffs advance are inconsistent with the
underlying purpose of Rule 19(a). Plaintiffs make the nonsensical argument that “Apple does
not have a right to claim an interest on behalf of AT&T.” (Opp’n at 11) The purpose of Rule
19(a), however, is to require joinder of an absent party — like ATTM — that cannot, as a
practical matter, protect its interest in the subject of the action. Fed. R. Civ. P. 19(a)(B)-(B)(i).
If a party to a litigation could not “claim an interest” on behalf of the absent party to make a Rule
19 argument, Rule 19 would serve no purpose. It is no surprise, then, that plaintiffs’ cases are
inapposite.3 Plaintiffs’ then make the irrelevant argument that ATTM can intervene in this
inform its 3GS customers that its exclusive partner AT&T would be obligated to provide [MMS]
and would charge for it”); see also Mot. at 3-5, 11 (quoting plaintiffs’ earlier allegations and
descriptions of their case))
2
For example, in Jonesfilm v. Lion Gate Int’l, there was no question that the absent party
breached its contractual obligations regarding a trademarked movie title, because the absent
party conceded as much in a declaration. 299 F.3d 134, 142 (2d Cir. 2009). Thus, a decision
about whether the defendant, to whom the alleged necessary party transferred its trademark
rights, committed trademark infringement would not resolve any disputed issues with respect to
the absent party’s interests. Id. Here, by contrast, ATTM vehemently denies that it failed to
meet its contractual obligations relating to MMS. (See, e.g., Dkt. No. 148-1 at 2, 25-27). The
other cases on which plaintiffs rely are similarly inapposite. See Gibbs Wire & Steel Co. v.
Johnson, 255 F.R.D. 326, 330 (D. Con. 2009) (recognizing that “most of the time” “it is true that
parties to a contract are . . . necessary under Rule 19(a)”; however, company’s by-laws did not
create a contract with absent shareholders, and they were, in any case, not necessary parties to a
shareholder’s claims against the company); Orix Credit Alliance, Inc. v. Taylor Machine Works,
Inc., 844 F. Supp. 1271 (N.D. Ill. 1994) (absent debtor was not necessary party to creditor’s
claims against loan guarantor, since creditor alleged that loan guarantor was party to its contract
with debtor and that contract did not require creditor to pursue remedy against debtor first).
3
The cases plaintiffs do cite do not help them. See Pultizer-Polster v. Pulitzer, 784 F.2d 1305
(5th Cir. 1986) (the defendant claimed, and the Court agreed, that the plaintiff’s sister and
4

action to protect its interest. (Opp’n at 12) ATTM’s ability to intervene under Rule 24 has no
bearing on whether ATTM is a necessary party under Rule 19.4 The two cases plaintiffs cite do
not hold or suggest otherwise.5
In sum, resolution of plaintiffs’ claims requires interpretation of the WSA and
adjudication of the propriety of ATTM’s conduct, making ATTM a necessary party.
C.

This Case Cannot Proceed in ATTM’s Absence

Plaintiffs argue that even if ATTM is deemed a required party, this case can nonetheless
proceed without ATTM. (Opp’n at 13-16) Plaintiffs turn a blind eye to the prejudice ATTM
would suffer if this case were litigated in its absence. See Fed. R. Civ. P. 19(b). Plaintiffs’
principal argument is that ATTM will not be prejudiced because “a decision can be made as to
Apple’s liability without the need for a finding of liability on the part of AT&T.” (Opp’n at 14)
This argument is meritless. Plaintiffs’ theories against Apple hinge on interpretation of the terms
mother, who were named plaintiffs in substantially similar state court lawsuit, were necessary
and indispensable parties under Rule 19); Johnson v. Smithsonian Institution, 189 F.3d 180 (2d
Cir. 1999) (reversing district court’s holding that absent party was necessary on the grounds that
the district court used improper criteria — that the Court would need evidence from the absent
parties to decide the case — in its Rule 19 analysis); Northrop Corp. v. McDonnell Douglas
Corp., 705 F.2d 1030 (9th Cir. 1983) (noting that the allegedly absent party – the United States –
was not a party to the contract at issue in the case, and that the dispute was thus private and the
government’s interest was neutral or, at best, hypothetical); Powers v. City of Seattle, 242 F.R.D.
566 (W.D. Wash. 2007) (an interest by the absent party was not enough for Rule 19 to apply,
since the absent party would not suffer prejudice without being joined).
4
To the contrary, Rule 24 is a counterpart to Rule 19. See Fed. R. Civ. P. 24 Advisory
Committee’s Note (1966) (“Intervention of right is here seen to be a kind of counterpart to
Rule 19(a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a
party in an action, an absentee should be joined so that he may protect his interest which as a
practical matter may be substantially impaired by the disposition of the action, he ought to have a
right to intervene in the action on his own motion.”).
5
Plaintiffs’ citation to In re Chinese Manufactured Drywall Products Liability Litigation, 273
F.R.D. 380 (E.D. La. 2011), is misplaced. In that case, the Court rejected defendants’ Rule 19
arguments not because the absent party — co-insured subcontractors — did not intervene in the
action (although they could have), but, among other reasons, because of directly relevant
authority holding that an absent insured with an interest in a limited insurance fund is not a
required party, and similarly on point law rejecting the premise that an absent insured is a
required party where a co-insured seeks recovery of a shared insurance fund. 273 F.R.D. at 38687. Likewise, in Abbott v. BP Exploration & Production, Inc., 781 F. Supp. 2d 453 (S.D. Tex.
2011), although the court noted that the absent party (the Department of the Interior) had a right
under the Outer Continental Shelf Lands Act to intervene, it was not a required party for entirely
independent reasons — among others, because its absence did not preclude complete relief and
its interests were not impaired by the litigation. 781 F. Supp. 2d at 468-69.
5

of the WSA, including whether ATTM was required to provide MMS before it was available,
and on adjudication of ATTM’s alleged obligations to plaintiffs under the WSA, including
whether ATTM engaged in improper billing practices.
Courts uniformly hold that interpreting an agreement in a contracting party’s absence is
the type of prejudice that warrants dismissal. (Mot. at 12 (citing Envirotech Corp. v. Bethlehem
Steel Corp., 729 F.2d 70, 75 (2d Cir. 1984); F&M Distribs., Inc. v. Am. Hardware Supply Co.,
129 F.R.D. 494, 498-99 (W.D. Pa. 1990); Gellman v. Paul, 85 F.R.D. 357, 358 (S.D.N.Y. 1980);
Shell Oil Co. v. Aetna Cas. & Sur. Co., 158 F.R.D. 395, 401 (N.D. Ill. 1994)) Plaintiffs offer no
response to this authority. Furthermore, this Court cannot “in equity and good conscience”
determine whether ATTM breached the WSA, improperly billed plaintiffs for MMS services, or
engaged in other conduct alleged in the complaints in ATTM’s absence.6
Plaintiffs next argue that “no decision by this Court should influence or even be
applicable to future arbitration proceedings, where the issue of AT&T’s liability would likely be
raised.” (Opp’n at 15) But this argument is, yet again, based on plaintiffs’ erroneous contention
that “an interpretation of the WSA and/or a finding of liability on the part of AT&T will not be
necessary.” (Id. (emphasis in original)) As demonstrated above, plaintiffs are wrong. Thus, as
demonstrated in the motion, ATTM is potentially prejudiced because any decisions this Court
makes regarding the terms of the WSA or ATTM’s alleged conduct may influence future
arbitration proceedings. (Mot. at 13)7
Finally, plaintiffs contend that they will not have an adequate remedy if the action is
dismissed for nonjoinder. (Opp’n at 15-16) This is incorrect. Plaintiffs can pursue their claims
against ATTM and Apple through arbitration. (Mot. at 13) Plaintiffs respond that Apple’s
argument assumes ATTM will be ordered to arbitrate. This argument is frivolous, because
plaintiffs concede that the WSA at issue here, including its arbitration clause, is essentially the
6

Plaintiffs contend that Apple “does not argue that it will be prejudiced by failure to join
AT&T.” (Opp’n at 14). This is incorrect. (See Mot. at 11-13)
7

Furthermore, the prejudice to ATTM cannot be lessened through limitations on relief. See
Fed. R. Civ. P. 19(b)(2)(B). Plaintiffs decline to address this point. (See Opp’n at 15)
6

same agreement that the United States Supreme Court considered in AT&T Mobility LLC v.
Concepcion, 131 S. Ct. 1740, 1753 (2011). Plaintiffs contend that they will not necessarily
receive “adequate redress” in arbitration for Apple’s alleged misconduct, because the “arbitration
will focus on AT&T’s misconduct, not that of Apple.” (Opp’n at 16) This contention is also
meritless. Plaintiffs’ claims against Apple are premised on the WSA and ATTM’s alleged
conduct — the very issues that would be the subject of any arbitration.
In sum, this case cannot “in equity and good conscience” continue in ATTM’s absence.
See Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102, 108 (1968).
D.

Plaintiffs’ Analysis of Other Cases Involving Apple and ATTM Is Flawed

Plaintiffs attempt to distinguish the iPhone 3G MDL on the ground that this action is
similar to that case “only insofar as they involve the same Defendants and relate to iPhones.”
(Opp’n at 18 (italics in original)) This argument is without merit. In the iPhone 3G MDL,
Judge Ware considered whether plaintiffs could proceed without ATTM after claims against it
were dismissed following Concepcion. Upon review of the operative MDL complaint, the court
determined that it was “based on the core allegation” that the 3G network could not
accommodate iPhone 3G users, and that Plaintiffs were “deceived . . . into paying higher rates”
for service which could not be delivered on the 3G network.” In re Apple iPhone 3G Prods.
Liab. Litig., No. C 09-02045 JW, 2011 U.S. Dist. LEXIS 138532, at *9-10 (N.D. Cal Dec. 1,
2011). Accordingly, the court held that ATTM was a necessary party.
Plaintiffs trumpet the fact that, unlike this case, “Apple’s liability in [the iPhone 3G
MDL] would have required the Court to make a determination as to the technical sufficiency of
AT&T’s 3G network.” (Opp’n at 19) But this is a distinction without a difference. Judge Ware
unambiguously held that where Apple’s liability hinges on ATTM’s actions (in that case, the
sufficiency of its 3G network), “cosmetic modifications” — i.e., “simply delet[ing] references to
ATTM” — do not “alter[] the gravamen of [the] allegations.” 2011 U.S. Dist. LEXIS 138532, at
*13. The same circumstances are present here. Plaintiffs have done exactly what the iPhone 3G
MDL plaintiffs did — they dropped ATTM to avoid arbitration but did not change their factual
7

allegations or legal claims; nor did they even attempt to make “cosmetic modifications” like
those addressed in the iPhone 3G MDL. Plaintiffs’ cases here remains firmly grounded in the
factual allegations regarding ATTM’s obligations to provide MMS under the WSA and alleged
billing practices. The Court here is thus faced with the same issue that Judge Ware resolved:
can plaintiffs proceed against Apple alone on claims that require adjudication of facts in which
ATTM has a significant interest? The answer, as Judge Ware has held, is no.
Plaintiffs then cite Weisblatt v. Apple Inc., No. C-10-02553 RMW, 2010 U.S. Dist.
LEXIS 113663 (N.D. Cal. Oct. 18, 2010), a case in which the court declined to stay proceedings
against ATTM and Apple pending Concepcion. Weisblatt is inapposite. The allegations in
Weisblatt were unrelated to the terms of the WSA. The plaintiffs — some of whom had not even
signed up for an ATTM WSA — alleged that Apple and ATTM misrepresented the availability
of certain data plans. 2010 U.S. Dist. LEXIS 113663, at *3-4, 6-7. Here, by contrast, plaintiffs
have expressly argued that their claims are premised on the WSA. Weisblatt is thus
distinguishable from this case for the same reason Judge Ware distinguished it from the iPhone
3G MDL. iPhone 3G MDL, No. C 09-02045 JW, 2010 U.S. Dist. LEXIS 144055, at *9 (Dec. 9,
2010) (“[u]unlike the [Weisblatt] case before Judge Whyte,” a stay was appropriate as to both
ATTM and Apple because claims against Apple were inextricably tied to ATTM).
Furthermore, the Weisblatt court was presented with neither of the issues presented here:
whether ATTM is an indispensable party and whether equitable estoppel applies, compelling
arbitration. Rather, the order plaintiffs cite relates to a motion to stay filed by ATTM (which
Apple joined). 2010 U.S. Dist. LEXIS 113663, at *7. The court denied that motion as to Apple
and ATTM.8 Plaintiffs’ reliance on Weisblatt is baseless.

8

When faced with the same question of a stay in this case, the Court granted a stay as to both
Apple and ATTM, finding that this case presents potentially dispositive issues as to both parties.
(Dkt. No. 206 at 1-2)
8

E.

Plaintiffs Cannot Avoid a Rule 19 Analysis By Relying on Rule 14

Plaintiffs attempt to avoid the indispensable party analysis required by Rule 19. They
assert that the “potentially dispositive question that the Court must first address is whether the
allegedly indispensable absent party can be impleaded under Rule 14.” (Opp’n at 7) This is
contrary to the Federal Rules, and is not supported by the case law. Indeed, courts have
expressly held that Rule 14 is not to be used as a means to “thwart” Rule 19. See Pasco Int’l
(London), Ltd. v. Stenograph Corp. 637 F.2d 496, 503 (7th Cir. 1980).
Plaintiffs cite several cases they claim support their invented rule, but in each case the
court underwent a thorough Rule 19 analysis before determining whether or not an absent party
needed to be joined. In Boone v. General Motors Acceptance Corp., the court concluded that the
absent party was not necessary because the plaintiff’s claims were unrelated to the conduct of the
absent party. 682 F.2d 552, 553-54 (5th Cir. 1982). The court concluded that, “[b]ased on the
pragmatic analysis required under Rule 19” dismissal was not proper. Id. at 554. Likewise, in
Lacoste Builders, L.L.C. v. Croft Metals, Inc. the court concluded that “in equity and good
conscience” the case should not be dismissed because there was “no support offered for how a
judgment without [the absent party] prejudices anyone or how a judgment without [the absent
party] is inadequate.” No. 01-1860 C/W 01-2312, 2001 U.S. Dist. LEXIS 17235, at *4 (E.D. La
Oct. 17, 2001). The court underwent a balancing of all of the factors under Rule 19, and
concluded on the equities that dismissal was not necessary. Id.9

9

Plaintiffs’ other cases are similarly inapposite. In Pasco Int’l the court held that “a careful
application of [the Rule 19] factors compels the conclusion that [the absent party] is not an
indispensable party.” 637 F.2d at 500. The Plaintiffs quote the Pasco court as stating that “the
existence of the Rule 14 provisions demonstrates that parties such as [the absent party] who may
be impleaded under Rule 14 are not indispensable parties within Rule 19(b).” (Opp’n at 7) This
language was taken out of context so as to distort its meaning. In fact, the court went out of its
way to note that it “[did] not use Rule 14 to thwart Rule 19” and carefully considered other
sources of potential prejudice to the parties. Pasco Int’l, 637 F.2d at 500. In Associated Dry
Goods Corp. v. Towers Financial Corp. the court did not base its decision on Rule 14, and in fact
the concurrence notes that the case was distinct from cases interpreting Rule 14. 920 F.2d 1121,
1126 (2d Cir. 1990). More importantly, the court found that the absent party was necessary
under Rule 19(a), but in equity and good conscience the absent party was not indispensable
under the factors of Rule 19(b). Id. at 1124-26.
9

In sum, not one of the decisions cited by plaintiff supports the position that “there is no
need for this Court to even address whether AT&T is a necessary and indispensable party under
Rule 19.” (Opp’n at 8)
III.

CONCLUSION
Because this case cannot proceed without ATTM, the case should be dismissed.

Alternatively, should the Court find that dismissal is not required in this case because ATTM
could be joined, the Court may choose, as Judge Ware did in the iPhone 3G MDL, to dismiss
without prejudice to permit plaintiffs to join ATTM pursuant to Rule 19.
Respectfully submitted,
/s/ Quentin F. Urquhart
QUENTIN F. URQUHART, JR. (#14475)
DAVID W. O’QUINN (#18366)
DOUGLAS J. MOORE (#27706)
IRWIN FRITCHIE URQUHART & MOORE, LLC
400 Poydras Street, Suite 2700
New Orleans, LA 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.

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing pleading has been electronically filed on
January 10, 2012, with the Clerk of Court by using the CM/ECF system which will send a notice
of electronic filing.

/s/ Quentin F. Urquhart

11