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

Filing 288

Response by Defendant Apple, Inc. to 286 Notice of Recent Decision. (Reference: All Cases)(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
APPLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE NOTICE OF
RECENT DECISION

Defendant Apple Inc. (“Apple”) respectfully submits the following response to plaintiffs’
motion for leave to file a notice of the Second Circuit’s recent decision in In re: American
Express Merchants’ Litigation, No. 06-1871-cv (2d Cir. Feb. 1, 2012). For the reasons set forth
below, the American Express decision is inapposite; it is not relevant to the arbitration and
equitable estoppel issues before this Court.
In American Express, the Second Circuit addressed the question whether a mandatory
arbitration provision is enforceable where plaintiffs are seeking to enforce federal statutory
rights. In re Am. Express Merchs. Litig., No. 06-1871-cv, 2012 U.S. App. LEXIS 1871, at *2425, 28-33 (2d Cir. Feb. 1, 2012). American Express purports to distinguish AT&T Mobility LLC
v. Concepcion, 131 S. Ct. 1740 (2011), on the ground that Concepcion did not involve federal
statutory rights. Id. The present litigation, like Concepcion, involves only state law claims
which were filed in federal court pursuant to the Class Action Fairness Act of 2005; plaintiffs
here allege no federal claims. (See, e.g., Dkt. No. 71, Carbine FAC ¶¶ 69-126) Accordingly,
American Express is irrelevant and Concepcion is controlling here.
Indeed, the ATTM arbitration provision at issue in the present cases is identical to that
upheld by the United States Supreme Court in Concepcion (See Dkt. No. 235 at 3; Dkt. No. 259
at 2)

Concepcion thus is binding on this Court with respect to the enforceability of the

arbitration clause in ATTM’s wireless service agreement.1

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American Express does not address the issue of equitable estoppel. Thus, plaintiffs’ purpose in drawing the
American Express decision to the Court’s attention can only be an effort to relitigate the enforceability of ATTM’s
arbitration clause. That effort directly undermines plaintiffs’ argument that this MDL can proceed in the absence of
ATTM. (See Apple’s Motion to Dismiss Pursuant to Rule 12(b)(7), Dkt. Nos. 268, 275)

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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)
ANDREW MUHLBACH (admitted pro hac vice)
HEATHER A. MOSER (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
February 9, 2012, 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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