itunes anti-trust plaintiff filing in response to apple motion to dismiss

8/10/2019 ITunes Anti-Trust Plaintiff Filing in Response to Apple Motion to Dismiss

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ROBBINS GELLER RUDMAN& DOWD LLP

BONNY E. SWEENEY (176174)ALEXANDRA S. BERNAY (211068)CARMEN A. MEDICI (248417)JENNIFER N. CARINGAL (286197)

655 West Broadway, Suite 1900San Diego, CA 92101Telephone: 619/231-1058619/231-7423 (fax)[email protected]@[email protected]@rgrdlaw.com

and

PATRICK J. COUGHLIN (111070)STEVEN M. JODLOWSKI (239074)Post Montgomery CenterOne Montgomery Street, Suite 1800San Francisco, CA 94104Telephone: 415/288-4545415/288-4534 (fax)[email protected]@rgrdlaw.com

Class Counsel for Plaintiffs

[Additional counsel appear on signature page.]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

THE APPLE IPOD ITUNES ANTITRUSTLITIGATION

This Document Relates To:

ALL ACTIONS.

))))))))

Lead Case No. C-05-00037-YGR

CLASS ACTION

NOTICE OF FILING PUBLICDOCUMENTS REGARDING PLAINTIFFSOPPOSITION TO APPLE INC.S MOTIONTO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION PURSUANT TO

FEDERAL RULES OF CIVIL PROCEDURE12(b)(1) AND 12(h)(3), OR RULE 50

Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page1 of 6


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989293_1 NOTICE OF FILING PUBLIC DOCUMENTS RE PLAINTIFFS OPP TO APPLE INC.S MOTION TO

DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION - C-05-00037-YGR -

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On December 6, 2014, Plaintiffs filed Plaintiffs Opposition to Apple Inc.s Motion to

Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(h)(3), Or Rule 50 (Opposition).

Portions of the Opposition were previously lodged under seal because Apple designated the

cited deposition testimony of Timothy ONeil ConfidentialAttorneys Eyes Only. The parties were

not able to agree to the filing of the materials publicly prior to the deadline for filing. On December

7, 2014, Apple agreed the materials need not be sealed. Accordingly, Plaintiffs hereby submit the

following documents which were previously the subject of Plaintiffs administrative motion to file

under seal (ECF 965) in public form:

Opposition;

Declaration of Alexandra S. Bernay in Support of Plaintiffs Opposition and Exhibits1-5 thereto. Though Plaintiffs previously filed Exhibits 1, 3-5 to the Bernay Declpublicly (seeECF 964), Plaintiffs are attaching those exhibits here for the Courtsconvenience;

Declaration of Marianna Rosen (Rosen Decl.). Through Plaintiffs previously filedthe Rosen Decl. publicly (see ECF 963), Plaintiffs are attaching it here for theCourts convenience.

DATED: December 7, 2014 ROBBINS GELLER RUDMAN& DOWD LLP

BONNY E. SWEENEYALEXANDRA S. BERNAYCARMEN A. MEDICIJENNIFER N. CARINGAL

s/ Bonny E. Sweeney

BONNY E. SWEENEY

655 West Broadway, Suite 1900San Diego, CA 92101Telephone: 619/231-1058

619/231-7423 fax


PATRICK J. COUGHLINSTEVEN M. JODLOWSKIPost Montgomery CenterOne Montgomery Street, Suite 1800San Francisco, CA 94104Telephone: 415/288-4545415/288-4534 fax



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989293_1 NOTICE OF FILING PUBLIC DOCUMENTS RE PLAINTIFFS OPP TO APPLE INC.S MOTION TO

DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION - C-05-00037-YGR - 2

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BONNETT, FAIRBOURN, FRIEDMAN& BALINT, P.C.

ANDREW S. FRIEDMAN

FRANCIS J. BALINT, JR.ELAINE A. RYAN2325 E. Camelback Road, Suite 300Phoenix, AZ 85016Telephone: 602/274-1100602/274-1199 fax

THE KATRIEL LAW FIRMROY A. KATRIEL1101 30th Street, N.W., Suite 500Washington, DC 20007Telephone: 202/625-4342202/330-5593 fax

BRAUN LAW GROUP, P.C.MICHAEL D. BRAUN10680 West Pico Blvd., Suite 280Los Angeles, CA 90064Telephone: 310/836-6000310/836-6010 fax

GLANCY BINKOW & GOLDBERG LLPBRIAN P. MURRAY122 East 42nd Street, Suite 2920New York, NY 10168Telephone: 212/382-2221212/382-3944 fax

GLANCY BINKOW & GOLDBERG LLPMICHAEL GOLDBERG1925 Century Park East, Suite 2100Los Angeles, CA 90067Telephone: 310/201-9150310/201-9160 fax

Additional Counsel for Plaintiffs



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CERTIFICATE OF SERVICE

I hereby certify that on December 7, 2014, I authorized the electronic filing of the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing to

the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I

caused to be mailed the foregoing document or paper via the United States Postal Service to the non

CM/ECF participants indicated on the attached Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on December 7, 2014.

s/ Bonn E. SweeneBONNY E. SWEENEY


655 West Broadway, Suite 1900San Diego, CA 92101-8498Telephone: 619/231-1058619/231-7423 (fax)

E-mail: [email protected]



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Mailing Information for a Case 4:05-cv-00037-YGR The Apple iPod iTunes Anti-Trust Litigation

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

Amir Q Amiri

[email protected],[email protected]

Francis Joseph Balint , Jr

[email protected]

Alexandra Senya [email protected],[email protected],[email protected]

Michael D [email protected]

Michael D. [email protected],[email protected]

Jennifer N. [email protected],[email protected]

Todd David [email protected]

Patrick J. [email protected],[email protected],[email protected],[email protected],[email protected]

John F. Cove , [email protected],[email protected],[email protected],[email protected],[email protected]

Meredith Richardson [email protected],[email protected]

Karen Leah [email protected]

Andrew S. [email protected],[email protected],[email protected]

Martha Lea [email protected]

Alreen [email protected],[email protected],[email protected]

William A. [email protected],[email protected]

Suzanne Elizabeth [email protected],[email protected]

Steven M. [email protected]

Roy Arie [email protected],[email protected]

Thomas J. [email protected]

David Craig [email protected],[email protected]

Carmen Anthony [email protected],[email protected]

Caroline Nason Mitchell

[email protected],[email protected]

Robert Allan [email protected],[email protected],[email protected]

Brian P. [email protected]

Page 1 of 2CAND-ECF-

12/7/2014https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?113759388205935-L_1_0-1



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and



[Additional counsel appear on signature page.]



OAKLAND DIVISION



ALL ACTIONS.

))))))))


CLASS ACTION

PLAINTIFFS OPPOSITION TO APPLE

INC.S MOTION TO DISMISS FOR LACK

OF SUBJECT-MATTER JURISDICTIONPURSUANT TO FEDERAL RULES OF

CIVIL PROCEDURE 12(b)(1) AND 12(h)(3)

OR RULE 50

Date: TBDTime: TBDCourtroom: 1, 4th FloorJud e: Hon. Yvonne Gonzalez Ro er

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page1 of 17


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TABLE OF CONTENTS

Page

PLAINTIFFS OPP TO APPLE INC.S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER

JURISDICTION PURSUANT TO FRCP 12(b)(1) & 12(h)(3), OR RULE 50 - C-05-00037-YGR -

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I. INTRODUCTION ...............................................................................................................1

II.

LEGAL ARGUMENT .........................................................................................................1

A. Apples Rule 12 Attack Is Meritless ........................................................................1

B. Ms. Rosens Trial Testimony Establishes Her Article III Standing ........................4

C. Ms. Rosen Has Standing Even as to Her September 2006 iPod 5th

Generation (iPod 5

thGen.) Purchase ....................................................................6

D. Even if Ms. Rosens Claims Were Mooted by Apples Change in Positionas to the Affected iPods, She Remains an Adequate Representative of theCertified Class ..........................................................................................................7

E.

Even if the Named Plaintiffs Claims Were Mooted, the Class ClaimsRemain and a Substitute Class Representative Should Be Appointed ....................8

III. CONCLUSION ..................................................................................................................11



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TABLE OF AUTHORITIES

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PLAINTIFFS OPP TO APPLE INC.S NOM & MTD FOR LACK OF SUBJECT-MATTER

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CASES

Aguilar v. Boulder Brands, Inc.,No. 3:12-cv-01862-BTM-BGS, 2014 U.S. Dist. LEXIS 122822(S.D. Cal. Sept. 2, 2014) ..........................................................................................................11

Association of Data Processing Service Organizations v. Camp,

397 U.S. 150 (1970) ...................................................................................................................3

Bates v. United Parcel Service, Inc.,

511 F.3d 974 (9th Cir. 2007) .....................................................................................6, 8, 10, 11

Binta B. ex rel. S.A. v. Gordon,

710 F.3d 608 (6th Cir. 2013) .....................................................................................................8

Cal Cartage Co., Inc. v. United States,

721 F.2d 1199 (9th Cir. 1983) ...................................................................................................4

Darley Leone Mart, Inc. v. Bechtel,No. 8K-JC-78, 1982 Del. Super. LEXIS 781

(Del. Super. Mar. 19, 1982) .......................................................................................................8

E. Texas Motor Freight Sys., Inc. v. Rodriguez,

431 U.S. 395 (1977) .................................................................................................................10

Everett v. MCI, Inc.,No. 05-2122-PHX-ROS, 2006 U.S. Dist. LEXIS 71871(D. Ariz. Sept. 29, 2006) ............................................................................................................2

Franks v. Bowman Transp. Co., Inc.,424 U.S. 747 (1976) ...................................................................................................................7

Frederic G. Krapf & Son, Inc. v. Gorson,

243 A.2d 713 (Del. 1968) ..........................................................................................................9

Fulfillment Servs. Inc. v. United Parcel Serv., Inc.,

528 F.3d 614 (9th Cir. 2008) .....................................................................................................4

In re ATM Fee Antitrust Litig.,686 F.3d 741 (9th Cir. 2012) .....................................................................................................3

In re Telectronics Pacing Sys., Inc.,

172 F.R.D. 271 (S.D. Ohio 1997) ..............................................................................................9



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In re TFT-LCD Antitrust Litig.,

No. M 07-1827 SI, MDL No. 1827, 2009 U.S. Dist. LEXIS 17792(N.D. Cal. Mar. 3, 2009) ............................................................................................................9

In re Urethane Antitrust Litig.,

768 F.3d 1245 (10th Cir. 2014) .................................................................................................7

Kirola v. City and County of San Francisco,No. C 07-3685 SBA, 2014 U.S. Dist. LEXIS 60919

(N.D. Cal. Apr. 29, 2014) .......................................................................................................10

Krechman v. Cnty. of Riverside,

723 F.3d 1104 (9th Cir. 2013) ...................................................................................................5

Kremens v. Bartley,

431 U.S. 119 (1977) .................................................................................................................10

Kuahulu v. Employers Ins. of Wausau,557 F.2d 1334 (9th Cir. 1977) .................................................................................................10

Lidie v. State of Cal.,478 F.2d 552 (9th Cir. 1973) ...................................................................................................10

Lierboe v. State Farm Mutual Auto. Ins. Co.,

350 F.3d 1018 (9th Cir. 2003) .............................................................................................9, 10

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...................................................................................................................6

Lynch v. Baxley,

651 F.2d 387 (5th Cir. 1981) ...................................................................................................10

Morgan v. Laborers Pension Trust Fund,

81 F.R.D. 669 (N.D. Cal. 1979) .................................................................................................9

Pitts v. Terrible Herbst, Inc.,653 F.3d 1081 (9th Cir. 2011) ...................................................................................................7

Preminger v. Peake,

552 F.3d 757 (9th Cir. 2008) .....................................................................................................3

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ...................................................................................................................5



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Rogers v. Paul,

382 U.S. 198 (1965) ...................................................................................................................9

Sosna v. Iowa,

419 U.S. 393 (1975) ...............................................................................................................7, 8

U.S. Parole Commn v. Geraghty,

445 U.S. 388 (1980) ...................................................................................................................6

Williams v. Boeing Co.,No. C98-761, 2005 U.S. Dist. LEXIS 27491 (W.D. Wash. Nov. 4, 2005) .............................10

STATUTES, RULES AND REGULATIONS

Del. Gen. Corp. Code,278............................................................................................................................................8

312(a) .......................................................................................................................................9

312 (c) .....................................................................................................................................9312 (e) ......................................................................................................................................9

61.075(6)(a)1.a., Fla. Stat. (2008) ..................................................................................................2

Federal Rules of Civil ProcedureRule 12 .......................................................................................................................................1

Rule 23(a)(4) ..............................................................................................................................8Rule 23(f) ...................................................................................................................................9Rule 50 .......................................................................................................................................5

Rule 50(a)...................................................................................................................................5

SECONDARY AUTHORITIES

Manual for Complex Litigation(Fourth) (2007)

21.26.........................................................................................................................................9



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I. INTRODUCTION

Apples motion to dismiss the claims for lack of Article III standing is meritless. Apples

entire motion hangs on a single document emblazoned with the signature of Plaintiff Marianna

Rosen (Ms. Rosen) and in Apples possession since September 11, 2008 that confirms rather

than refutes that Ms. Rosen purchased two iPod products during the Class Period with KVC and

DVC. Apples mid-trial bid to dismiss the Class members claims is likewise baseless, even i

Apples argument about Ms. Rosens iPod purchases were true (and it is not).

II. LEGAL ARGUMENT

A. Apples Rule 12 Attack Is Meritless

In its Rule 12 motion Apple belatedly disputes Ms. Rosens trial testimony based on a single

previously undisclosed document that it retrieved from its own records a document which

ironically,confirmsrather than refutes her continuing standing to assert claims on behalf of herself

and the Certified Class.

Specifically, post-testimony investigation1has confirmed that Ms. Rosen in fact purchased

for her own personal use two indisputably affected iPods directly from the Apple store at the Short

Hills, New Jersey mall on September 11, 2008 (collectively, the 2008 iPods), squarely within the

Class Period. Declaration of Marianna Rosen, dated December 6, 2014 (Rosen Decl.), filed

concurrently, 8, 13. The 2008 iPods, bearing serial numbers YM8361TK3QX and 1A836F5F201

are both models in which KVC and DVC were admittedly installed. ECF 813-6 (Supplemental Decl

of Farrugia) at 2-3. The Apple store contacted by Ms. Rosen confirmed her purchases on that date

and e-mailed her a copy of her receipt. Rosen Decl., 6-7. A true and accurate copy of the receipt

sent by Apple is attached as Rosen Decl., Ex. 2.

1 Following Ms. Rosens trial testimony, Apple requested and Plaintiffs voluntarily produced the

serial number to the iPod she brought with her to trial. Using that serial number, Apple in less than24 hours produced an internal document in Ms. Rosens name from the Short Hills Mall Apple store demonstrating that Apple has ready access to Plaintiffs purchase records. See alsoDeclaration ofAlexandra S. Bernay, filed concurrently (Bernay Decl.), Ex. 1, Trial Transcript at 637:2-7 (TheCourt: So what were you doing in 2011, four years ago, three years ago, to investigate this particularissue that you apparently resolved in less than 24 hours? Mr. Isaacson: I dont have an answer forthat, your honor. The Court: Well, thats a problem.).



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Upon delivery of Ms. Rosens receipt for the 2008 iPods, Apple for the first time disclosed

its own Internal Reprint Copy of the receipt, which Apple says shows that the 2008 iPods were

supposedly not purchased by Ms. Rosen but instead were ordered by her former husbands law

firm, The Rosen Law Firm. ECF 955 at 6:27-28. This is at odds with the facts.

Ms. Rosen purchased the 2008 iPods for her own use. Rosen Decl., 8, 13. She was no

asked or directed by anyone to buy the iPods. Id., 9. She gave one iPod to her son, as gift from her

for his personal use; it has never been used for any other purpose. Id.,8. She kept the other iPod

for her own personal use; it has never been used for any other purpose. Id. Ms. Rosens iPod is

reflected on her own personal iTunes account. Id.; Ex. 1 attached hereto. In fact, it was by

reviewing her iTunes account (information in Apples hands), that Ms. Rosen was able to see the

serial number for the 2008 iPod Touch, which is labeled as marianna Rosens iPod in her iTunes

account. Id.,5.

Ms. Rosen paid for the 2008 iPods with a credit card that she frequently used during the time

for personal purchases. Rosen Decl., 10, 12. The credit card had her name on it and she was

authorized to use it for such purposes. Id. This is true even if the card also had the name of the law

firm that her husband, Laurence Rosen, owned at the time and at which she worked as a bookkeeper

and office manager, known as The Rosen Law Firm, PA. Id. The Rosen Law Firm (the law

firm) is a Florida Professional Association, the stock of which was at the time 100% held as marita

property of both Ms. Rosen and Mr. Rosen. Id.,11; see generally61.075(6)(a)1.a., Fla. Stat

(2008) (marital assets include, among other things, [a]ssets acquired . . . during the marriage,

individually by either spouse or jointly by them). Because the law firm was solely owned by Mr

Rosen and thus the Rosens marital community, Ms. Rosen was named on and authorized to use, and

frequently did use, the firm credit card for personal purchases. Id.; see alsoEverett v. MCI, Inc., No

05-2122-PHX-ROS, 2006 U.S. Dist. LEXIS 71871, at *6 n.4 (D. Ariz. Sept. 29, 2006) (finding that

wife had standing to challenge overcharges on checking account she shared with her husband and

was authorized to use). Ms. Rosens purchases of the two 2008 iPods was not done at the direction

of the law firm, nor were those iPods property of the law firm. Id.



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Ms. Rosens declaration shows just how grossly Apple is elevating form over substance to

argue based only on its own internal reprint that Ms. Rosen was not the actual purchaser of the

2008 iPods from Apple. Apples entire (one paragraph) argument that the evidence does not permit

the reasonable conclusion that [Ms. Rosen] purchased one of the allegedly affected iPods hinges

solelyon the reference to The Rosen Law Firm on the document. Declaration of Tim ONeil (ECF

956), 9 and Exhibit 2. Mr. ONeil in his declaration fails, however, to explain how or why the

words The Rosen Law Firm appear on the document. Id.

At deposition, Mr. ONeil acknowledged that he did not have any basis to state that the

customer field is populated by the name on the credit card, conceding that aside from personal

experience at the Apple Store, he knew nothing about the data collection process at the point of sale

Bernay Decl., Ex. 2, ONeil Dep. at 52:20-24. The only effort he made to determine the point of sale

process was a five-minute call made before submitting his declaration, to an individual who could

not confirm with any certainty whether the customer field captures the name on the card. Id.at

57:10-61:14. When asked what information from the card Apples Point-Of-Sale (POS) system

would capture (such as from a card with multiple names), Mr. ONeil acknowledged, I dont know

because Im not an POS expert. Id.at 61:4-7, 61:14. Further, Mr. ONeil acknowledged that the

field can be changed by an employee at the point of sale and can be edited based on the customer

request. Id.at 39:16-40:5.

Apple has failed to raise any genuine issue of fact requiring the Court to adjudicate Ms.

Rosens continuing standing to assert her claims and represent the certified Class. The constitutional

requirements of standing are satisfied if the plaintiff alleges that the challenged action has caused

him injury-in-fact, economic or otherwise. Association of Data Processing Service Organizations

v. Camp, 397 U.S. 150, 152 (1970). The contours of the injury-in-fact requirement are very

generous: once the plaintiff has alleged a specific, identifiable trifle of injury that is fairly

traceable to the defendants conduct, the requirement of a constitutionally adequate stake in the

controversy is satisfied. Preminger v. Peake, 552 F.3d 757, 763 (9th Cir. 2008) (The injury may be

minimal.). Plaintiffs are, therefore, entitled to summary adjudication by the Court in their favor

with respect to Ms. Rosens standing, even before considering her unimpeached trial testimony. In



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re ATM Fee Antitrust Litig., 686 F.3d 741, 747-48 (9th Cir. 2012) (standing is a question of law for

the court to decide, and the court need not conduct evidentiary inquiry absent a genuine issue of

material fact).2

B.

Ms. Rosens Trial Testimony Establishes Her Article III Standing

Ms. Rosens trial testimony unequivocally establishes her Article III standing. She testified

that she purchased at least two affected iPods during the Class Period: (1) an iPod nano, and (2) an

iPod touch:

Q. And you understand that youre here today to discuss some issues related toyour purchases of iPods; is that right?

A. Right.

Q. And have you ever owned an iPod?

A. Yes.

Q. Have you when did you purchase your first iPod?

A. I believe that I purchased my first iPod in February, March of 2004. And Ibought another iPod, it was iPod nano for my little sister as a gift for hergraduation I think in July of the same year. Then I bought, I guess its nextgeneration iPod, a black iPod in September 2006. I bought an iPod nano. Ithink its called nano, the green kind of slick narrow iPod which is smallerthan the ones prior, in 2007, in the fall of 2007. And the last iPod I boughtwas the iPod touch. And I think I bought it as a Hanukkah gift for my son inDecember of 08.

Q. And did you purchase all of those iPods at an Apple store?

A. I think, you know, I dont remember a hundred percent, but I think its a verygood assumption that I bought it at the Apple store in Short Hills Mall, whichis not far from my house. Thats where I bought most of my Apple products.

Bernay Decl., Ex. 4, Trial Transcript at 583:10-584:10.3

2 Where the plaintiff is asserting a federal private cause of action,[t]he injury required by ArticleIII can exist solely by virtue of statutes creating legal rights, the invasion of which createsstanding. Fulfillment Servs. Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 618-19 (9th Cir. 2008)(citation omitted); Cal Cartage Co., Inc. v. United States, 721 F.2d 1199, 1203 (9th Cir. 1983)(holding that once it is established that a private cause of action exists, the inquiry shifts fromwhether Article III standing exists to whether prudential standing concerns are satisfied). Applechallenges only Article III standing in its motion.

3 Ms. Rosens trial testimony also establishes her purchase of an iPod 5

thGen. in September 2006

discussed infra.



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During cross-examination Apple chose not to question Ms. Rosen on any perceived

inconsistencies with past interrogatory answers or deposition testimony. Bernay Decl., Ex. 4, Tria

Transcript at 593:4-611:13. Nor did Apple use any of its own apparently extensive internal records

Id. In short, Apple elicited no trial testimony from Ms. Rosen at all undermining the accuracy of her

testimony regarding the nature and timing of her purchases.

Beyond her iPod purchases, Ms. Rosen also testified as to the adverse economic lock-in

which effectively forced her to continue to purchase iPods rather than other mp3 players:

Q. Why have you purchased so many Apple products?

A. Well, you know, I like Apple products. I think they are good products. I also,after I bought my first iPod, which was in 2004, I immediately proceeded inbuilding the library which consisted of a good percentage of songs that I

bought from iTunes store, which came together with the software. And alsocopying my cd library. So once I build that library, I sort of had to use iPodproducts because I couldnt use any others, mp3 players. So I was just usingmy library and loading it there.

Bernay Decl., Ex. 4, Trial Transcript at 584:18-585:3; see also,id. at 590:13-18 (So in that, I was in

a way a little bit forced to buy certain products. Even if I would have chosen Apple at the end, I

wanted to be my free choice not because I already invested time and money in the library. I felt like

I [was] stuck.).

There is, then, absolutely nothing in the current trial record that precludes the jury from fully

crediting Ms. Rosens testimony that she purchased the specified iPods from Apple and was

otherwise economically injured during the Class Period, which in turn necessarily precludes Apples

Rule 50 motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000); Krechman

v. Cnty. of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (district court can grant a Rule 50(a)

motion for judgment as a matter of law only if there is no legally sufficient basis for a reasonable

jury to find for that party on that issue) (citation omitted). [I]n entertaining a motion for judgmen

as a matter of law, the court . . . may not make credibility determinations or weigh the evidence.

Reeves, 530 U.S. at 150; id.at 149-50 (the court must view the evidence in the light most favorable

to the nonmoving party and draw all reasonable inferences in that partys favor).

The Court thus cannot under Rule 50 weigh the credibility of trial testimony especially

where, as here, it is stands uncontroverted. See, e.g., Krechman, 723 F.3d at 1110-11 (reversing



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grant of motion for judgment as a matter of law). Under the present record, there is an ample

evidentiary basis for the jury to find that Ms. Rosen suffered economic loss during the Class Period

fairly traceable to Apples alleged misconduct.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992) (alleged overcharges are a concrete, particularized, and actual injury-in-fact).

C. Ms. Rosen Has Standing Even as to Her September 2006 iPod 5th

Generation (iPod 5

thGen.) Purchase

If the named plaintiffs claim remains a live controversy at the time of class certification, the

case will not become moot even if the named plaintiffs personal claim later expires. U.S. Parole

Commn v. Geraghty, 445 U.S. 388, 398-99 (1980). Standing and mootness are two sides of the

same coin. Bates v. United Parcel Service, Inc., 511 F.3d 974, 986 (9th Cir. 2007) ([M]ootness is

described as the doctrine of standing set in a time frame.).

Here, Apple does not in its motion dispute Ms. Rosens trial testimony regarding her

September 2006 purchase of the iPod 5th

Gen. within the Class Period, except to argue that the iPod

5th

Gen. does not include the KVC and DVC challenged by Plaintiffs. But at a minimum her

purchase of the iPod 5th

Gen. gave Ms. Rosen standing to assert a claim based on Apples prior

sworn testimony regarding affected models.

The Courts Order certifying the Class was premised on the list of iPods identified by

Apples Augustin Farrugia as affected by the changes in Updates 7.0 and 7.4. Bernay Decl, 3. The

Class certified by the Court: (a) defined a Class Period of September 12 , 2006 through March 31

2009 (the Class Period); and (b) defined class membership in terms of the specific models of iPods

sold during the Class Period, including specifically the iPod 5th

Gen.(the Class Definition). Id.

6; see also, ECF 694 at 9 (Class Notice). The Class Notice was issued to more than 8 million

consumers in the spring of 2012. Bernay Decl., 7.

On July 2, 2013, after Class Notice and after Plaintiffs submitted Professor Roger Nolls

liability and damages report, Apple submitted a corrected declaration from Augustin Farrugia in

which he changed his previous testimony identifying the affected iPods. Bernay Decl., 10

Plaintiffs subsequently asked Apple to stipulate to revise the Class Definition to exclude the

purportedly unaffected models. Id.,11. Apple refused to do so. Id. Plaintiffs in the October 14



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2014 Joint Pre-Trial Conference Statement acknowledged, therefore, that they only sought damages

for the Class members who purchased affected iPods. ECF 823 at 1.

This chronology establishes two things. First, Ms. Rosen had standing at the time of

certification of the Class even with respect to her uncontested purchase of the iPod 5th

Gen. She

remains a member of the Class as currently certified.

Second, it is far too late for Apple to seek to alter the class definition. Apple made a strategic

decision not to modify the class definition to align with Farrugias changed testimony. Presumably

Apple did so because it seeks to attack Plaintiffs expert, Professor Roger G. Noll, at trial, and to

preserve any challenges to the certification of the Class. It is therefore unavailing for Apple to argue

that the governing class definition may include Class members who purchased only unaffected

models. Whatever the amount of damages awarded by the jury, Plaintiffs will engage in a post-

verdict allocation process among the certified Class as a whole, in which Apple has no standing to

participate or object. In re Urethane Antitrust Litig., 768 F.3d 1245, 1269 (10th Cir. 2014)

(defendant has no interest in the method of distributing the aggregate damages award among class

members).

D. Even if Ms. Rosens Claims Were Mooted by Apples Change inPosition as to the Affected iPods, She Remains an AdequateRepresentative of the Certified Class

Even if the Court were to find that Ms. Rosens individual claims were moot, she remains a

proper and adequate representative of the Class claims, which were certified nearly 2 yearsbefore

Apples change in designation of the affected models. Once a district court has certified a class

mooting the putative class representatives claim will not moot the class action because, upon

certification, the class acquires a legal status separate from the interest asserted by the class

representative, such that an Article III controversy then exists between the named defendant and

every member of the certified class. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir

2011) (citing Sosna v. Iowa,419 U.S. 393 (1975)).

Apple in its brief tries to limit Sosnato instances in which the disputed issue is capable of

repetition yet evading review (ECF 955 at 11:25-12:10), but that argument has since long been

discredited. See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 754 (1976). Apples cited cases



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declining to apply the capable of repetition exception where a plaintiff never had standing at all

(ECF 955 at 11-12) are inapplicable here because (a) Plaintiffs do not rely on that exception and (b)

Ms. Rosen at the absolute minimum had standing through the date of Class certification.

Under Sonsa, after class certification the analysis shifts from whether the case is justiciable to

Rule 23(a)(4)s fair and adequate representation requirement. Addressing this requirement, the

SonsaCourt concluded that even though the named plaintiffs personal claim may be moot, she stil

adequately protected the interests of the class because it was unlikely that segments of the class

[Sosna] represent[ed] would have interests conflicting with those she . . . sought to advance. 419

U.S. 393, 403 (1975). An appointed class representative may therefore continue to represent a

certified class even if her personal claims have become moot, at least until such time that there is

determination that representative is no longer adequate. Binta B. ex rel. S.A. v. Gordon, 710 F.3d

608 (6th Cir. 2013). By traveling across the country and testifying at trial, as well as submitting to

invasive discovery of her music purchases, sitting for a day-long deposition and taking an active role

in the litigation, Ms. Rosen has demonstrated her adequacy as a class representative through her

unflagging willingness to serve the best interests of the Class.

E. Even if the Named Plaintiffs Claims Were Mooted, the Class ClaimsRemain and a Substitute Class Representative Should Be Appointed

Finally, even if Ms. Rosens claims were deemed moot, and even if Ms. Rosen were for some

reason deemed inadequate to continue as the representative of the Class, the appropriate remedy is to

a name substitute class representative. Bates, 511 F.3d at 986-88

Plaintiffs have numerous Class members who are prepared to step in and serve as class

representatives without delay. First, K&N Enterprises, Inc. (K&N) is willing to serve as a class

representative. As the Court is aware, Plaintiffs believe that K&N has standing to bring claims

against Apple. See Darley Leone Mart, Inc. v. Bechtel, No. 8K-JC-78, 1982 Del. Super. LEXIS 781

(Del. Super. Mar. 19, 1982); see alsoDel. Gen. Corp. Code 278. Moreover, K&N is ready and

willing to revive for that purpose (curing the concern of the Court expressed in its earlier order (ECF



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927))4, and its owner Ken Riegel has: (a) already been deposed by Apple; and (b) already testified a

trial. Bernay Decl., 13.

Numerous other absent members of the Certified Class have likewise contacted Plaintiffs

expressing a readiness and willingness to serve as Class Representative. Bernay Decl., 12. To the

extent the Court deems Ms. Rosen an improper or inadequate class representative in any respect, the

only fair and equitable remedy is to substitute one or more additional class representatives.

A motion to add a class representative should be granted where the proposed new plaintiff is

a member of the class and seeks the same relief for all of the reasons offered by the original

plaintiffs. Rogers v. Paul, 382 U.S. 198, 198-99 (1965). Courts within the Ninth Circuit often allow

either substitution or addition of new class representatives. See, e.g.,In re TFT-LCD Antitrust Litig.

No. M 07-1827 SI, MDL No. 1827, 2009 U.S. Dist. LEXIS 17792, at *10 (N.D. Cal. Mar. 3, 2009)

Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 673-75 (N.D. Cal. 1979) (permitting

plaintiffs to add new class representatives). The court may permit intervention by a new

representative or may simply designate that person as a representative in the order granting class

certification. Manual for Complex Litigation(Fourth) 21.26 (2007) (citingIn re Telectronics

Pacing Sys., Inc., 172 F.R.D. 271, 283 (S.D. Ohio 1997) (court named substitute new class

representative without formal intervention or joinder)). Bernay Decl., Ex. 5.

This is not a case likeLierboe v. State Farm Mutual Auto. Ins. Co., 350 F.3d 1018, 1023 (9th

Cir. 2003) where the named plaintiff never had standing and never was a member of the class she

was named to represent. There the Ninth Circuit, on an accepted Rule 23(f) interlocutory appeal of

class certification, dismissed a putative class case for lack of standing after it was determined, by

certified question to the state supreme court, that the plaintiff (Lierboe) had no claim from the

outset of her litigation. 350 F.3d at 1023 n. 6. But the Ninth Circuit simultaneously noted: If

Lierboe initially had a viable . . . claim that later became moot, then our law in an appropriate case

would permit substituting proper class representatives to allow the suit to proceed. Id. (citing

4 SeeDel. Gen. Corp. Code 312(a), (c) and (e) (revival of a void company is immediate and

retroactive); Frederic G. Krapf & Son, Inc. v. Gorson, 243 A.2d 713 (Del. 1968). There isabsolutely no prejudice to Apple.



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Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334, 1336-37 (9th Cir. 1977) (If the district court

had certified appellants class prior to appellants own claim [ ] becoming moot, we would not

dismiss this appeal for mootness. In such a case, remand to the district court would be appropriate in

order to determine whether a substitute representative would be available.)). LikeLierboe, the

entire line of cases cited by Apple is premised on a finding that the plaintiff never had a viable claim

at the outset a finding that cannot be made here. See, e.g.,Lidie v. State of Cal., 478 F.2d 552, 555

(9th Cir. 1973) (substitution denied where the original plaintiffs were never qualified to represent

the class); Williams v. Boeing Co., No. C98-761, 2005 U.S. Dist. LEXIS 27491, at *32-*33 (W.D

Wash. Nov. 4, 2005) (same; plaintiffs failed to allege actionable claims at the outset); Kirola v. City

and County of San Francisco, No. C 07-3685 SBA, 2014 U.S. Dist. LEXIS 60919, at *4 (N.D. Cal

Apr. 29, 2014) (same; plaintiffs lacked standing to bring lawsuit in the first instance).

Even considering her uncontested iPod 5th

Gen. purchase alone, Ms. Rosen had standing

when the operative complaint was filed and when the Class was certified, and she remains a member

of the Class as such to this very day. But she furthermore unquestionably had (and has) standing

based on her purchase of the 2008 iPods, which place her squarely within the certified Class and

within Plaintiffs expert damages analysis.

Apples suggested course that the Court dismiss the entire case rather than providing an

opportunity to substitute a new class representative conflicts with the law of this Circuit. As an en

bancpanel of the Ninth Circuit observed inBates, the Supreme Court has held it would be error for a

district court to dismiss class allegations where it had already certified a class and only later had it

appeared that the named plaintiffs were not class members or were otherwise inappropriate class

representatives. 511 F.3d at 986 (citing and quotingE. Texas Motor Freight Sys., Inc. v. Rodriguez

431 U.S. 395, 406 n.12 (1977)); Kremens v. Bartley, 431 U.S. 119 (1977) (the claims of the narrower

class remain live, even after the contours of the class have changed or the class has been truncated

by intervening legislation);Lynch v. Baxley, 651 F.2d 387, 387-88 (5th Cir. 1981) (finding that the

district court committed reversible error in dismissing the class after it found that the class

representative lacked standing). Even in the situation of a not-yet-certified class, the Ninth Circuit



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BONNETT, FAIRBOURN, FRIEDMAN& BALINT, P.C.

ANDREW S. FRIEDMAN

FRANCIS J. BALINT, JR.ELAINE A. RYAN2325 E. Camelback Road, Suite 300Phoenix, AZ 85016Telephone: 602/274-1100602/274-1199 fax

THE KATRIEL LAW FIRMROY A. KATRIEL1101 30th Street, N.W., Suite 500Washington, DC 20007Telephone: 202/625-4342202/330-5593 fax

BRAUN LAW GROUP, P.C.MICHAEL D. BRAUN10680 West Pico Blvd., Suite 280Los Angeles, CA 90064Telephone: 310/836-6000310/836-6010 fax

GLANCY BINKOW & GOLDBERG LLPBRIAN P. MURRAY122 East 42nd Street, Suite 2920New York, NY 10168Telephone: 212/382-2221212/382-3944 fax

GLANCY BINKOW & GOLDBERG LLPMICHAEL GOLDBERG1925 Century Park East, Suite 2100Los Angeles, CA 90067Telephone: 310/201-9150310/201-9160 fax

Additional Counsel for Plaintiffs



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and





OAKLAND DIVISION



ALL ACTIONS.

))))))))


CLASS ACTION

DECLARATION OF ALEXANDRA S.BERNAY IN SUPPORT OF PLAINTIFFSOPPOSITION TO APPLE INC.S MOTIONTO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION PURSUANT TOFEDERAL RULES OF CIVIL PROCEDURE12(b)(1) AND 12 (h)(3), OR RULE 50

Date: TBDTime: TBD

Courtroom: 1, 4th Floor

Judge: Hon. Yvonne Gonzalez Roger



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989262_1 BERNAY DECL ISO PLTFS OPP TO APPLES MOTION TO DISMISS FOR LACK OF SUBJECT-

MATTER JURISDICTION PURS TO FRCP (b)(1) & 12 (h)(3), OR RULE 50 - C-05-00037-YGR -

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I, ALEXANDRA S. BERNAY, declare as follows:

1. I am an attorney duly licensed to practice before all of the courts of the State of

California. I am a member of the law firm of Robbins Geller Rudman & Dowd LLP, one of the

counsel of record for plaintiff in the above-entitled action. I have personal knowledge of the matters

stated herein and, if called upon, I could and would competently testify thereto.

2. I submit this declaration in support of Plaintiffs Opposition to Apple Inc.s Motion to

Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Federal Rules of Civil Procedure 12

(b)(1) and 12(h)(3), or Rule 50.

3. At the time of class certification in 2011, Plaintiffs relied upon a list of iPod models

identified by Apples Augustin Farrugia as models affected by the software and firmware updates

(the keybag verification code and the database verification code) in iTunes 7.0 and 7.4.

4. The Court requested supplemental information regarding those models on June 22

2011.

5. The list of affected models included a number of types of iPods and various

generations within iPod type. The list included iPod Classic models, iPod nanos, iPod touch models

and iPod shuffles. The iPod Classic Fifth Generation was included on that list.

6.

After the Court certified the class and approved the list of models in the class period, I

worked with Apples counsel and the class administrator, Rust Consulting Group, to effectuate a

notice plan. The parties worked extensively on the notice plan, carefully crafting the language to be

used in mailed and publication notice as well as the case information that would appear on the case

website, www.ipodlawsuit.com. That list of models remains available on the Court-approved site

7. The notice to the class took place in the spring of 2012, with more than 8 million

consumers and more than 500 resellers receiving direct notice.

8. In March of 2013 I received a phone call from Apples counsel informing me that Mr

Farrugia had determined that the list of affected models Apple provided was incorrect.

9. I later received an email from Apples counsel which detailed this list of affected

models. Because this was not an official statement from Apple, Plaintiffs requested a sworn

statement regarding which models were actually affected.



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CERTIFICATE OF SERVICE

I hereby certify that on December 6, 2014, I authorized the electronic filing of the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing to

the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I

caused to be mailed the foregoing document or paper via the United States Postal Service to the non

CM/ECF participants indicated on the attached Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on December 6, 2014.

s/ Bonn E. SweeneBONNY E. SWEENEY


655 West Broadway, Suite 1900San Diego, CA 92101-8498Telephone: 619/231-1058619/231-7423 (fax)

E-mail: [email protected]



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NORTHERN DISTRICT OF CALIFORNIABEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE

THE APPLE IPOD ITUNES ) NO. C 05-00037 YGRANTITRUST LITIGATION )

) PAGES 623 - 874)) JURY TRIAL VOLUME 4)

)) OAKLAND, CALIFORNIA

____________________________) THURSDAY, DECEMBER 4, 2014

REPORTERS' TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFFS: ROBBINS GELLER RUDMAN & DOWD LLP655 WEST BROADWAY, SUITE 1900SAN DIEGO, CALIFORNIA 92101

BY: ALEXANDRA S. BERNAY,JENNIFER N. CARINGAL,PATRICK COUGHLIN,STEVEN M. JODLOWSKI,CHARLES MCCUE,CARMEN A. MEDICI,BONNY E. SWEENEY, ATTORNEYS AT LAW

BONNETT FAIRBOURN FRIEDMAN & BALINT PC4023 CAIN BRIDGE ROADFAIRFAX, VIRGINIA 22030

BY: FRANCIS J. BALINT, JR.ATTORNEY AT LAW

(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY: RAYNEE H. MERCADO, CSR NO. 8258

DIANE E. SKILLMAN, CSR NO. 4909

PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY;TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

Sheet 1

A P P E A R A N C E S (CONT'D.)

FOR DEFENDANT: BOIES, SCHILLER & FLEXNER LLP

5301 WISCONSIN AVENUE NWWASHINGTON, D.C. 20015

BY: WILLIAM A. ISAACSON,KAREN L. DUNN,MARTHA L. GOODMAN, ATTORNEYS AT LAW

BOIES, SCHILLER & FLEXNER LLP1999 HARRISON STREET, SUITE 900OAKLAND, CALIFORNIA 94612

BY: MEREDITH R. DEARBORN, ATTORNEYS AT LAW

JONES DAY555 CALIFORNIA STREET, 26TH FLOORSAN FRANCISCO, CALIFORNIA 94104-1500

BY: DAVID C. KIERNAN, ATTORNEYS AT LAW

APPLE1 INFINITE LOOP, MS 169-2NYJCUPERTINO, CALIFORNIA 95014

BY: SCOTT B. MURRAY,SENIOR LITIGATION COUNSEL

--O0O--


I N D E X

PLAINTIFFS' WITNESSES PAGE VOL.CUE, EDUARDO

DIRECT EXAMINATION BY MS. SWEENEY 651 4CROSS-EXAMINATION BY MR. ISAACSON 692 4REDIRECT EXAMINATION BY MS. SWEENEY 754 4

RECROSS-EXAMINATION BY MR. ISAACSON 765 4FURTHER REDIRECT EXAMINATION BY MS. SWEENEY 767 4

MARKS, AMANDA

DIRECT EXAMINATION BY MR. COUGHLIN 769 4CROSS-EXAMINATION BY MR. ISAACSON 806 4

SCHILLER, PHILLIP

DIRECT EXAMINATION BY MS. SWEENEY 791 4CROSS-EXAMINATION BY MR. ISAACSON 806 4REDIRECT EXAMINATION BY MS. SWEENEY 841 4RECROSS-EXAMINATION BY MR. ISAACSON 848 4

--O0O--


E X H I B I T S

PLAINTIFFS' EXHIBITS W/DRAWN IDEN EVID VOL.2 647 4

55 866 483 866 4118 855 4121 855 4124 854 4125 855 4128 854 4130 855 4147 856 4193 866 4222 856 4319 860 4383 864 4461 857 4816 857 4880 869 4940 865 4


Raynee H. Mercado, CSR, RMR, CRR, FCRR and Diane E. Skillman, CSR, RPR, FCRRRaynee H. Mercado, CSR, RMR, CRR, FCRR and Diane E. Skillman, CSR, RPR, FCRRRaynee H. Mercado, CSR, RMR, CRR, FCRR and Diane E. Skillman, CSR, RPR, FCRRRaynee H. Mercado, CSR, RMR, CRR, FCRR and Diane E. Skillman, CSR, RPR, FCRR



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EXHIBIT 2



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Page 11 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 OAKLAND DIVISION

4

5 THE APPLE iPOD iTUNES ) Lead Case No. C 05-00037

ANTI-TRUST LITIGATION )

6 )

)

7 ___________________________ )

)

8 This Document Relates To: )

)

9 ALL ACTIONS )

___________________________ )

10

11

12

13

14

15 CONFIDENTIAL - ATTORNEYS' EYES ONLY

16 VIDEOTAPED DEPOSITION OF TIMOTHY PATRICK O'NEIL

17 Friday, December 5, 2014

18 Oakland, California19

20

21

22

23 Reported By:

24 Hanna Kim, CLR, CSR No. 13083

25 Job No.: 10013785

Page 21 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 OAKLAND DIVISION

4

5 THE APPLE iPOD iTUNES ) Lead Case No. C 05-00037

ANTI-TRUST LITIGATION )

6 )

)

7 ___________________________ )

)

8 This Document Relates To: )

)

9 ALL ACTIONS )

___________________________ )

10

11

12

13

14 Confidential - Attorneys' Eyes Only,

15 Videotaped Deposition of TIMOTHY PATRICK O'NEIL, taken

16 on behalf of the Plaintiffs at 1999 Harrison Street,

17 Suite 900, Oakland, California 94612, beginning at

18 4:21 p.m. and ending at 5:37 p.m., on Friday,19 December 5, 2014, before Hanna Kim, CLR, CSR No. 13083.

20

21

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23

24

25

Page 31 APPEARANCES OF COUNSEL:

2

3 For the Plaintiffs:

4 ROBBINS GELLER RUDMAN & DOWD, LLP

5 BY: CARMEN A. MEDICI, ESQ.

6 BY: ALEXANDRA S. BERNAY, ESQ.

7 655 West Broadway, Suite 1900

8 San Diego, California 92101

9 619.231.1058

10 [email protected]


12

13 For the Defendant, Apple Inc. and the Witness:

14 BOIES, SCHILLER & FLEXNER LLP

15 BY: KIERAN PAUL RINGGENBERG, ESQ.

16 1999 Harrison Street, Suite 900

17 Oakland, California 94612

18 510.874.1000


20

21 Also Present:

22 NOREEN KRALL, ESQ., Vice President Chief

23 Litigation Counsel of Apple Inc.

24 FRANK CLARE, Video Specialist

25

Page 41 INDEX OF EXAMINATION

2

3 WITNESS: TIMOTHY PATRICK O'NEIL

4

5 EXAMINATION PAGE

6 BY MR. MEDICI: 7, 57

7 BY MR. RINGGENBERG: 54

8

9

10 INDEX OF EXHIBITS

11 O'NEIL DEPOSITION EXHIBITS PAGE

12 Exhibit 1 "Declaration of Tim O'Neil in 15

13 Support of Apple Inc.'s Motion

14 to Dismiss for Lack of

15 Subject-Matter Jurisdiction

16 Pursuant to Federal Rules of

17 Civil Procedure 12(b)(1) and

18 12(h)(3) or Rule 50; Exhibits 1

19 and 2; 8 pages

20 Exhibit 2 "Internal Reprint Copy," dated 45

21 September 20th, 2006; Trial

22 Exhibit 2855; 2 pages

23 Exhibit 3 document dated September 20th, 45

24 2006; Trial Exhibit 2857; 2

25 pages


Timothy O'NeilConfidential - Attorneys' Eyes Only

The Apple iPod iTunes Anti-Trust Litigation

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Page 45

1 (O'Neil Deposition Exhibit 2 was marked.)


3 BY MR. MEDICI:

4 Q. Court reporter is going to hand you O'Neil 2

5 and O'Neil 3. O'Neil --

6 THE WITNESS: Here you go.

7 BY MR. MEDICI:

8 Q. I'm actually going to hand O'Neil 4 to you, as9 well.

10 MR. RINGGENBERG: I've got 2 and 4. I'm not

11 sure I got 3. What was 3?

12 Oh, thank you. Sorry.


14 BY MR. MEDICI:

15 Q. Okay. For the record, Exhibit -- O'Neil

16 Exhibit 2 is something that's entitled "Internal

17 Reprint Copy" dated September 20th, 2006. It's a

18 two-page document, Trial Exhibit 2855.

19 Exhibit 3, Trial Exhibit 2857. Has the same20 date.

21 And then Exhibit 4 is a one-page e-mail

22 attaching a receipt called a duplicate receipt from

23 September 11th, 2008.

24 Did I correctly identify those three

25 documents?

Page 461 A. Yeah, I believe so.

2 Q. Can you please turn to Exhibit 2 of your

3 declaration.

4 A. Mm-hmm.

5 Q. And then can you also turn to Exhibit 4. I'd

6 like to compare page 2 of Exhibit 4 to this Exhibit 2

7 of your declaration.

8 My first question is, what's the difference9 between an internal reprint copy and a duplicate

10 receipt?

11 A. So, I guess there -- the easiest way to

12 describe it is that, in POS, there's different --

13 different versions of the same data that you can pull.

14 I guess that's the best way to put it.

15 Q. Okay. Why -- why does the Exhibit 2 to your

16 declaration have a customer name and Exhibit O'Neil 4

17 does not?

18 MR. RINGGENBERG: Objection. Foundation as to

19 O'Neil 4.

20 THE WITNESS: I don't have an answer for that.

21 BY MR. MEDICI:

22 Q. Can you tell me what O'Neil Exhibit 4 is?

23 A. It's an e-mail to Marianna Rosen -- or, sorry,

24 from Marianna Rosen -- originally to Marianna Rosen

25 to --

Page 47

1 Q. Let me -- let me start again here.

2 Do -- do you see on the first page where it

3 says "[email protected]"?

4 A. Yeah.

5 Q. Do you recognize that to be the Short Hills,

6 New Jersey, Apple Store?

7 A. Yes.

8 Q. And then they're e-mailing

9 ; is that correct?

10 A. I understand that, yes.

11 Q. And then, attached to that e-mail is a -- a

12 duplicate receipt which has a bar code on it, and that

13 bar code is R0435033178.

14 You see that?

15 A. I do.

16 Q. And then, if you look over at Exhibit 2 to17 your declaration, Trial Exhibit 2884, do you see that

18 the receipt ID on that document matches the receipt ID

19 of the duplicate receipt?

20 A. I'm sorry, which -- which documents again?

21 Four and which document?

22 Q. Exhibit 2 to your declaration.

23 A. Oh.

24 Yes, I see that they are the same invoices.

25 Q. And does that tell you that these are the --

Page 48

1 this is about the same purchase?

2 A. Yes.

3 Q. Okay. Now, I'd like to -- I'd like to ask a

4 couple more questions about what the difference is

5 between an internal receipt -- an internal reprint copy

6 and a duplicate receipt.

7 Why -- why -- would you be able to pull, for

8 instance, a duplicate receipt?

9 A. So, this is the one that was actually sent to

10 a customer. I don't -- I don't know if it's a

11 different format or anything like that. It appears

12 that she requested it, and they e-mailed it to her.

13 And from my own recollection of having receipts

14 e-mailed to me, it looks similar to that.

15 The internal reprint is -- it's an -- it's the

16 reprint. It has more data on it.17 And aside from them being different versions,

18 I -- I don't know. Again, I'm not the -- the POS

19 expert or worked from -- in retail, so...

20 Q. Okay. The question was -- was, are you able

21 to pull a duplicate receipt rather than an internal

22 reprint copy?

23 A. So, in -- in this format, I -- I think it's

24 when it's e-mailed to a customer. And I don't do that,

25 so I don't know if it -- it looks like exactly the same



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Page 49

1 or anything like that.

2 Q. Same database?

3 A. I would probably say yeah, but I don't know

4 that functionality at all. I mean, it's POS, so it's

5 point-of-sale system.

6 Q. All right. Let's turn to your -- to your

7 declaration, please.

8 A. Okay.9 Q. You use the word "serialized" in here?

10 A. Yes.

11 Q. What does that mean?

12 A. So, GCRM tracks serialized Apple products.

13 And by serialized, it's products that have serial --

14 serial numbers associated with them. So it would be

15 Macs, iPods, iPhones, iPads, cinema displays, Apple

16 TVs, but it wouldn't be your keyboard or your mouse or

17 cables or anything like that. It's serialized

18 products.

19 Excuse me.20 And so, that's what GCRM has in it.

21 Q. Okay. Can you please turn to Exhibit 3,

22 O'Neil Exhibit 3.

23 A. Yep.

24 Q. Can you identify Trial Exhibit 2857, O'Neil 3?

25 A. Yes.

Page 50

1 Q. What is this?

2 A. That is -- if you recall earlier in the

3 conversation, I mentioned the installed product page

4 from GCRM. That's -- that's what it looks like. So

5 all of the serial numbers that we've been discussing

6 all have pages similar to this in GCRM.

7 Q. Are you able to search any of these fields

8 that are available on this page?9 A. I'm able for -- to find a product. This is

10 not the actual search screen.

11 Does that make sense?

12 This is the results screen after -- after you

13 do the search. So I'm only really able to do the

14 search via serial number in GCRM. I don't believe I

15 can -- yeah, I don't think I can pull any transactional

16 data. It's just associated with the serial number.

17 Q. But didn't you say earlier that you could run

18 searches by name?

19 A. Yeah, but that's a different -- you're asking20 about the installed product page, and I'm talking about

21 the installed product page. So I get to this page here

22 via serial number search.

23 Q. Okay. I -- on the right side, it says

24 "channel type." It's about three or four inches down

25 the page.

Page 51

1 What does indirect channel mean?

2 A. I'm -- I'm not in -- in sales, so I'm really

3 not sure it's -- exactly what it means.

4 Q. Down -- down at the bottom of the page, it has

5 "date created" and "date modified."

6 Do you see that?

7 A. Yep.

8 Q. Do -- do you know -- do you know what that --

9 what the -- what that means, aside from -- like do --

10 do you know what those particular fields mean, aside

11 from just your experience?

12 A. I -- I -- I don't. I believe it's kind of

13 tracked to, I mean, the actual -- the actual product

14 itself. Because all these products and stuff -- not to

15 get boring or too technical, but all the serial

16 numbers, even before they're sold, they live all in17 SAP and all -- who does the manufacturing and all the

18 stuff like that. But I would venture a guess that it

19 was created similarly when it was shipped. And then,

20 when it was purchased, that modified the record. I

21 mean, I -- I can only speculate.

22 Q. Okay. That's fine.

23 Is there any way that you can tell that --

24 from anything that we have here or that is -- any of

25 these exhibits, including your declaration -- strike

Page 52

1 that. I'll start over so I can get a clean question.

2 Is there -- is there anything here today that

3 indicates that any of these purchases were made

4 anywhere but in a physical store?

5 A. They all appear to have been made at a

6 physical store, an Apple retail store.

7 MR. MEDICI: Okay. Can we take two or three

8 minutes? I want to look over this document you gave

9 me, and then I'll probably I would have five minutes

10 left or so.

11 MR. RINGGENBERG: Fine.

12 MR. MEDICI: Thanks.

13 THE VIDEOGRAPHER: We're off the record at

14 5:19 p.m.

15 (Short recess taken.)

16 THE VIDEOGRAPHER: We're back on the record at17 5:26 p.m.

18 BY MR. MEDICI:

19 Q. Mr. O'Neil, I just a few more questions.

20 Aside from personal experience, you know

21 nothing about the data collecting process of -- at the

22 point-of-sale for the Apple point-of-sale database; is

23 that correct?

24 A. That's correct.

25 Q. I'd also like to request any -- any documents




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EXHIBIT 3



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1 1 1 1 1 ~

From Marianna osen [mail to :marianna [email protected]]

Sent: Thursday December 04 2014

8: AM

To

Xan

Bernay; Patrick Coughlin; Bonny Sweeney

Subject: Fwd: Your receipt from Apple Store Short Hills

Begin forwarded message:

From: [email protected]

Date:

December

4 2014

at

07:57:07

ST

To: mariann a o s c n ~ o

Cc:

shorthill

sC ctJW

Je.com

Subject: Your receipt from Apple Store Short Hills

Reply-To: Do not rcply V apple.com

Thank you for shopping at the Apple Store.

To tell us about your experience c lick here.



40/62

Apple Store, Short Hills

1200 Morris TPKE

STE

B102

Short Hills, NJ 07078

shorthi lls@app le.com

973-564-5813

DUPLICATE RECEIPT

www.app

le.

com

/ retail/ shorthills

September 11,2008 11:09 AM

iPod nano 8GB -

green

Part Number: MB745LL/ A

Serial

Number:

YM8361TK3QX

Return Date: Sep.

25,

2008

For Support, Visit : APPLE.COM/SUPPORT

iPod touch 8GB

Part

Number:

MB528LL/A

Serial

Number:

1A836F5F201

Return

Dat

e: Sep

.' 25,

2008

22.90 fee if

opened

For Support, Visit APPLE.COM/

SUPPORT

Shure SE110-

White

Part

Number:

TM267LL/A

Return Date: 5ep.

25,

2008

Customer

Support

800-516-2525 ext. 4

Sub-Total

Tax

@

7.0%

Total

Amount Paid Via Visa

(A)

xxxxxxxxxxxxxxxxxxxxxAban

081764

R0435033178

http://www.apple.com/legal/sales_policies/retail.html

Tell us

about

your experience at the Apple Store.

Visit www.apple.com /feedback/retail.html

149.00

229.00

99.95

477.95

33.46

511.41

511.41



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EXHIBIT 4



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NORTHERN DISTRICT OF CALIFORNIABEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE

THE APPLE IPOD ITUNES ) NO. C 05-00037 YGRANTITRUST LITIGATION )

) PAGES 402 - 622)) JURY TRIAL VOLUME 3)

)) OAKLAND, CALIFORNIA

____________________________) WEDNESDAY, DECEMBER 3, 2014

REPORTERS' TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFFS: ROBBINS GELLER RUDMAN & DOWD LLP655 WEST BROADWAY, SUITE 1900SAN DIEGO, CALIFORNIA 92101

BY: ALEXANDRA S. BERNAY,JENNIFER N. CARINGAL,PATRICK COUGHLIN,STEVEN M. JODLOWSKI,CHARLES MCCUE,CARMEN A. MEDICI,BONNY E. SWEENEY, ATTORNEYS AT LAW

BONNETT FAIRBOURN FRIEDMAN & BALINT PC4023 CAIN BRIDGE ROADFAIRFAX, VIRGINIA 22030

BY: FRANCIS J. BALINT, JR.ATTORNEY AT LAW

(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY: RAYNEE H. MERCADO, CSR NO. 8258

DIANE E. SKILLMAN, CSR NO. 4909

PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY;TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.


Sheet 1

A P P E A R A N C E S (CONT'D.)

FOR DEFENDANT: BOIES, SCHILLER & FLEXNER LLP

5301 WISCONSIN AVENUE NWWASHINGTON, D.C. 20015

BY: WILLIAM A. ISAACSON,KAREN L. DUNN,MARTHA L. GOODMAN, ATTORNEYS AT LAW

BOIES, SCHILLER & FLEXNER LLP1999 HARRISON STREET, SUITE 900OAKLAND, CALIFORNIA 94612

BY: MEREDITH R. DEARBORN, ATTORNEYS AT LAW

JONES DAY555 CALIFORNIA STREET, 26TH FLOORSAN FRANCISCO, CALIFORNIA 94104-1500

BY: DAVID C. KIERNAN, ATTORNEYS AT LAW

APPLE1 INFINITE LOOP, MS 169-2NYJCUPERTINO, CALIFORNIA 95014

BY: SCOTT B. MURRAY,SENIOR LITIGATION COUNSEL

--O0O--


I N D E X

PLAINTIFFS' WITNESSES PAGE VOL.MARTIN, DAVID

CROSS-EXAMINATION BY MR. ISAACSON 411 3

FARRUGIA, AUGUSTIN

DIRECT EXAMINATION BY MR. COUGHLIN 454 3CROSS-EXAMINATION BY MS. DUNN 514 3REDIRECT EXAMINATION BY MR. COUGHLIN 566 3

ROSEN, MARIANNA

DIRECT EXAMINATION BY MS. BERNAY 581 3CROSS-EXAMINATION BY MR. ISAACSON 593 3REDIRECT EXAMINATION BY MS. BERNAY 611 3

--O0O--


E X H I B I T S

PLAINTIFFS' EXHIBITS W/DRAWN IDEN EVID VOL.269 576 3271 576 3

316 577 3327 575 3371 577 3820 576 3871 577 3927A 576 2

DEFENDANT'S EXHIBITS W/DRAWN IDEN EVID VOL2239 575 32247 575 32265 575 32309 575 32329 578 32416 578 32446, 2446A 485 32776 575 32784 619 3

--O0O--





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itunes anti-trust plaintiff filing in response to apple motion to dismiss

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