Koschitzki v. Apple Inc. et al

Filing 58

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on February 20, 2009, before Judge Weinstein. Court Reporter/Transcriber Ronald E. Tolkin, Official Court Reporter, Telephone number 718-613-2647, [e-mail]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/13/2009. Redacted Transcript Deadline set for 3/23/2009. Release of Transcript Restriction set for 5/21/2009. (Tolkin, Ronald)

Koschitzki v. Apple Inc. et al

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1 1 2 ---------------X 3 AVI KOSCHITZKI 4 Plaintiff 5 -against6 7 8 9 10 11 12 13 APPEARANCES: 14 For the Plaintiff: 15 16 17 18 APPEARANCES VIA TELEPHONE: [phone] For the Defendant: AT&T Mobility LLC. MAYER BROWN LLP 1909 K Street, NW Washington, DC 20006 BY: KEVIN RANLETT ARCHIS A. PARASHARAMI For the Defendant: Apple, Inc. MORRISON & FOERSTER, LLP 1290 Avenue of the Americas New York, New York 10104 BY: JAMIE A. LEVITT RIGRODSKY & LONG, P.A. 585 Stewart Avenue Suite 304 Garden City, New York 11530 BY: JOSEPH RUSSELLO MARK S. REICH APPLE, INC. and AT&T MOBILITY LLC. Defendants : February 20, 2009 11:30 a.m. : U.S. Courthouse Brooklyn, N.Y. : 08-CV-4451 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------X BEFORE:

HONORABLE JACK B. WEINSTEIN United States District Judge

RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

Dockets.Justia.com

AVI KOSCHITZKI v. APPLE, INC., ET AL.

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For the Defendant: AT&T Mobility LLC.

CROWELL & MORING LLP 153 East 53rd Street New York, New York 10022 BY: STEVEN DAVID GREENBLATT

Court Reporter:

RONALD E. TOLKIN, RMR 225 Cadman Plaza East Brooklyn, New York 11201 718-613-2647

Proceedings recorded by mechanical stenography, transcript produced by Computer-Assisted Transcript.

*** MR. RUSSELLO: MR. REICH: THE CLERK: Good morning, Your Honor.

Good morning. Civil cause for status conference. Avi

Koschitzki versus Apple Inc., et al. Counsel note their appearances. Give your name, sir. MR. RUSSELLO: Joseph Russell, Rigrodsky & Long,

representing the plaintiff. MR. REICH: My name is Mark Reich from Rigrodsky &

Long, representing the plaintiff. THE COURT: plaintiff. I looked at the papers from the

Tell me what the claim is about. MR. REICH: Well, Your Honor, essentially, this case

is about the deficient and ineffective cellular network that

RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

AVI KOSCHITZKI v. APPLE, INC., ET AL.

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the iPhones are provided by AT&T and Apple.

only provider that is allowed to provided cellular or what they call their 3G network service for the iPhones. And

essentially, there really is no debate that the iPhones are not receiving the quality, the speed or the nature of the network that they were promised. There are widespread complaints all over the country about the problems that people are having, whether it be with respect to the speed of the data, dropped calls, slow and subpar data reception, and despite the fact that all these iPhone users were also paying a premium for that service. AT&T and Apple are and have been well aware of these problems. In fact, iPhone users were provided with several

patches, software patches that they could download to their phones to try to remedy some of the issues they were experiencing. These have been ineffective as well.

In fact, in November of 2008, AT&T purchased a company in Texas called Wayport, Inc., to gain access to the company's 80,000 Wi-Fi -THE COURT: MR. REICH: Slow down. 80,000 Wi-Fi access points were

available to them through the Wayport, Inc., which is a Texas company. This, again, was done to try and remedy the problems

that the iPhone users were experiencing by using -THE COURT: Slow down. The reporter can't take you

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if you read at that speed. MR. REICH: Understood. Thank you, Your Honor.

That's essentially the background for the nature of the claims. file. There are many other cases that are currently on

Many of the cases that have been filed throughout the

country have also been either withdrawn or transferred over to California. There are currently, as we're aware of, six cases pending in the Northern District of California. three previous cases that have been filed. one in Texas and one in Florida. posture of the case. THE COURT: Has it been before the MDL panel for There is also

One in New Jersey,

That's the procedural

consolidation before one judge? MR. REICH: this point. THE COURT: country? MR. REICH: All of these cases I just mentioned are None of them have been certified Is there any class action pending in the There has not any movement for MDL at

all class action litigation. as class action.

This case has probably progressed further

than all the other cases, as far as we're aware, at this point. The reason we're before Your Honor today is just based on a conversation I had with several members of defense

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counsel earlier this week.

When the request was made by the

Court to have -- an order was made by the Court to have an evidentiary hearing. At that point, there was some confusion

on the part of all the parties as to what and how that evidentiary hearing would be held. We had a conference call

and agreed that we would contact the Court to discuss that matter with the Court in further length. Also, during that period of time counsel at Mayer Brown submitted a letter to the Court at which time we had the conversation with them that they should reach out to the Court and get more guidance, and they agreed to do so. During the interim period of time, Your Honor signed a letter. It was sent over to defense counsel. We were

forwarded that letter a day or so later.

Still proceeded to

contact the Court so that we could seek further guidance, in terms of how the case would progress as we moved forward. THE COURT: Well, the defendants view that this is

subject to arbitration, correct? MR. RUSSELLO: THE COURT: AT&T's view, Your Honor.

Well, that would be the problem that an

evidentiary hearing would have to address, to see whether we have jurisdiction. MR. REICH: Well, that only really applies to AT&T.

First of all, Apple has no claim to compel arbitration at this point. It doesn't really have an arbitration clause at all.

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THE COURT: goes forward.

I know, but it may effect how the case

This is a contract -- who's here from AT&T? There are counsel on the phone, Your

MR. REICH: Honor, for AT&T. THE COURT: MR. RANLETT:

Who is on the phone? This is Kevin Ranlett from Mayer Brown

for defendant AT&T, Inc.. THE COURT: MR. RANLETT: You want this case to go to arbitration? That's correct, Your Honor. We

believe that discussion of the merits of the underlying case is premature because the case should go to arbitration. We also believe that Your Honor made the correct decision earlier this week by directing that the briefing on the motion to compel arbitration be completed and an oral argument heard before deciding whether an evidentiary hearing is necessary or appropriate. In our reply brief that we'll file next week, we will explain in detail and cite law establishing that an evidentiary hearing is unnecessary. THE COURT: Well, we have to, it seems to me, decide

the arbitration issue first. MR. RANLETT: We agree, Your Honor. Arbitration

issues should be decided first, and the Court should have the benefit of full briefing or oral argument on that arbitration motion.

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THE COURT:

All right.

I agree.

I take it that the codefendant doesn't disagree, is that right? MS. LEVITT: Morrison and Foerster. Your Honor, this is Jamie Levitt from We are not a party to the motion to

compel arbitration, but we do agree that Your Honor should hear oral argument briefing rather than an evidentiary hearing at this time, until the motion to compel arbitration is decided. THE COURT: All right. So everybody agrees and we

will go forward in accordance with my order. MR. REICH: In addition to that, though, we have

noticed the deposition, at least the affiant that were submitting affidavits in support of those motions. The

affidavits state that they reviewed personal records of Mr. Koschitzi relating to the contract that are at issue. relating to the contract, specifically, that compels arbitration. And those were not provided to the Court nor And

provided to us. THE COURT: Take that up with the Magistrate Judge,

who is -- why don't you go down now and see if you can arrange it with him. MR. RUSSELLO: There is also a question, Your Honor,

about whether it makes sense to go forward without an evidentiary hearing if the Court is going to consider the

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affidavits.

And so, that was sort of an ancillary issue that

was affected by Your Honor's order directing that an evidentiary hearing not take place, unless needed. And so, we were concerned that if the Court was going to consider the affidavits, that we should have an opportunity, of course, to conduct discovery, which we can speak to the magistrate about. But more importantly, if we do that, then perhaps we should, in our belief, have an evidentiary hearing to address some of those issues that may be brought up through deposition and discovery and, obviously, based on the affidavits that were submitted. THE COURT: On the arbitration issues? Yes. Correct.

MR. RUSSELLO: THE COURT:

Take that up with the magistrate judge.

If the magistrate judge decides on some discovery, it should be quite limited, only to the issue of arbitration. Or get

the issue of arbitration out of the way and decide how we should go forward. I'm surprised that, if there are cases pending all over, nothing has been done before the MDL panel. MR. REICH: We can't speak to that, Your Honor. But

in terms of the briefing and the oral argument that has currently been scheduled, in light of the fact that there won't be an evidentiary hearing, we would ask the Court that

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we have the oral argument for all the briefing held on that day. Considering the fact that if the Court is not going to entertain the motion to dismiss because it doesn't compel arbitration, that proceeding simply won't go forward. Which

is no reason that the motion to dismiss with respect to Apple should not proceed on that particular day. We can save, I

think, judicial resources by hosting all of those oral arguments at the same time on the same date. THE COURT: I think that's sensible. We'll do that.

If you need more time for the argument, we'll try to agree and stipulate and get in touch with Ms. Lowe who will give you another date. You may need more time. I just want to touch on one issue, It

MR. RUSSELLO:

Your Honor, with respect to some sort of an MDL issue.

appears that there are some cases, as my colleague said, in California. We're of the belief that the action should

proceed here regardless. We believe, based on the fact that no MDL action has been filed yet by anybody, that everyone else agrees, except, of course, for the plaintiffs in California. There may also

be some grumblings about possibly settling the matter in California and possibly settling it out from under everybody else. point. But of course, that cannot be substantiated at this We would like to just move forward here and see where

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the chips fall. THE COURT: proceeding. I have a case pending. There's no MDL

I will proceed with this case, but it does seem

to me that having a series of class actions pending in various states doesn't make much sense. MR. REICH: We certainly would agree with that. New

York, we believe, has if not the most, one of the most subscribers and users of the iPhone. We think that we would

represent the greatest number of people and it is the most suitable place to be. THE COURT: That is the MDL panel, it's up to them.

Nothing that I say has any bearing and should not have any bearing on what the panel does. Thank you, very much. Anything else those on the phone want to say? MR. RANLETT: for AT&T. This is Kevin Ranlet from Mayer Brown Thank you, Your

That covers everything for us.

Honor, for allowing us to speak and appear by telephone. THE COURT: Thank you. Thank you. Those present

All right, everybody.

will go down to see the magistrate judge, if they can, today. And I take it they have the telephone numbers of those on the telephone in case the magistrate judge wants to address everybody. MR. REICH: That's right.

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THE COURT: MR. REICH:

Thank you very much, gentleman. Thank you, Your Honor. Thank you, Your Honor.

MR. RUSSELLO:

(Proceeding concluded.)

RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

AVI KOSCHITZKI v. APPLE, INC. AND AT&T

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RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

AVI KOSCHITZKI v. APPLE, INC. AND AT&T
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RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

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N.Y [1] - 1:6 name [2] - 2:17, 2:20 nature [2] - 3:5, 4:3 necessary [1] - 6:16 need [2] - 9:11, 9:13 needed [1] - 8:3 network [3] - 2:25, 3:3, 3:6 NEW [1] - 1:1 New [8] - 1:15, 1:20, 2:2, 2:6, 4:10, 10:6 next [1] - 6:17 None [1] - 4:20 Northern [1] - 4:9 note [1] - 2:16 nothing [1] - 8:21 Nothing [1] - 10:12 noticed [1] - 7:13 November [1] - 3:17 number [1] - 10:9 numbers [1] - 10:22 NW [1] - 1:23

S
save [1] - 9:7 scheduled [1] - 8:24 see [4] - 5:21, 7:21, 9:25, 10:21 seek [1] - 5:15 seem [1] - 10:3 sense [2] - 7:24, 10:5 sensible [1] - 9:10 sent [1] - 5:13 series [1] - 10:4 service [2] - 3:3, 3:11 settling [2] - 9:22, 9:23 several [2] - 3:13, 4:25 signed [1] - 5:12 simply [1] - 9:5 six [1] - 4:8 slow [1] - 3:9 Slow [2] - 3:20, 3:25 software [1] - 3:14 sort [2] - 8:1, 9:15 specifically [1] - 7:17 speed [3] - 3:5, 3:9, 4:1 state [1] - 7:15 STATES [1] - 1:1 states [1] - 10:5 States [1] - 1:11 status [1] - 2:14 stenography [1] - 2:8 STEVEN [1] - 2:2 Stewart [1] - 1:14 Still [1] - 5:14 stipulate [1] - 9:12 Street [2] - 1:23, 2:1 subject [1] - 5:18 submitted [2] - 5:9, 8:12 submitting [1] - 7:14 subpar [1] - 3:10 subscribers [1] - 10:8 substantiated [1] - 9:24 suitable [1] - 10:10 Suite [1] - 1:15 support [1] - 7:14 surprised [1] - 8:20

O
obviously [1] - 8:11 OF [1] - 1:1 One [1] - 4:10 one [5] - 4:11, 4:14, 9:14, 10:7 opportunity [1] - 8:6 oral [6] - 6:14, 6:24, 7:7, 8:23, 9:1, 9:8 order [3] - 5:2, 7:11, 8:2

Q
quality [1] - 3:5 quite [1] - 8:17

R
Ranlet [1] - 10:16 Ranlett [1] - 6:6 RANLETT [5] - 1:24, 6:6, 6:9, 6:22, 10:16 rather [1] - 7:7 reach [1] - 5:10 read [1] - 4:1 really [3] - 3:4, 5:23, 5:25 reason [2] - 4:24, 9:6 receiving [1] - 3:5 reception [1] - 3:10 recorded [1] - 2:8 records [1] - 7:15 regardless [1] - 9:18 Reich [1] - 2:20 REICH [15] - 1:16, 2:13, 2:20, 2:24, 3:21, 4:2, 4:15, 4:19, 5:23, 6:3, 7:12, 8:22, 10:6, 10:25, 11:2 relating [2] - 7:16, 7:17 remedy [2] - 3:15, 3:23 reply [1] - 6:17 Reporter [1] - 2:5 reporter [1] - 3:25

P
P.A [1] - 1:14 panel [4] - 4:13, 8:21, 10:11, 10:13 papers [1] - 2:22 PARASHARAMI [1] - 1:25 part [1] - 5:4 particular [1] - 9:7 parties [1] - 5:4 party [1] - 7:5 patches [2] - 3:14 paying [1] - 3:11 pending [5] - 4:9, 4:17, 8:20, 10:2, 10:4 people [2] - 3:8, 10:9 perhaps [1] - 8:8 period [2] - 5:8, 5:12 personal [1] - 7:15 phone [3] - 6:3, 6:5, 10:15 phones [1] - 3:15 place [2] - 8:3, 10:10

RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R

AVI KOSCHITZKI v. APPLE, INC. AND AT&T

4

T
TELEPHONE [1] - 1:18 telephone [3] - 10:18, 10:22, 10:23 terms [2] - 5:16, 8:23 Texas [3] - 3:18, 3:22, 4:11 THE [22] - 2:14, 2:22, 3:20, 3:25, 4:13, 4:17, 5:17, 5:20, 6:1, 6:5, 6:8, 6:20, 7:1, 7:10, 7:20, 8:13, 8:15, 9:10, 10:2, 10:11, 10:19, 11:1 three [1] - 4:10 throughout [1] - 4:5 today [2] - 4:24, 10:21 TOLKIN [1] - 2:5 touch [2] - 9:12, 9:14 transcript [1] - 2:8 Transcript [1] - 2:9 transferred [1] - 4:6 try [3] - 3:15, 3:23, 9:11

U
U.S [1] - 1:5 under [1] - 9:23 underlying [1] - 6:10 Understood [1] - 4:2 UNITED [1] - 1:1 United [1] - 1:11 unless [1] - 8:3 unnecessary [1] - 6:19 up [4] - 7:20, 8:10, 8:15, 10:11 users [4] - 3:11, 3:13, 3:24, 10:8

V
various [1] - 10:4 versus [1] - 2:15 VIA [1] - 1:18 view [2] - 5:17, 5:19

W
wants [1] - 10:23 Washington [1] - 1:24 Wayport [2] - 3:18, 3:22 week [3] - 5:1, 6:13, 6:17 WEINSTEIN [1] - 1:10 Wi [2] - 3:19, 3:21 Wi-Fi [2] - 3:19, 3:21 widespread [1] - 3:7 withdrawn [1] - 4:6

Y
YORK [1] - 1:1 York [7] - 1:15, 1:20, 2:2, 2:6, 10:7

RONALD E. TOLKIN, RMR OFFICIAL C O U R T R E P O R T E R