4 Plaintiffs Move for Transfer, Consolidation of Apple Antitrust MDL to Calif.

Notices of appearance in In Re: Apple Inc. Smartphone Antitrust Litigation are due on or before April 17, said a text-only revised briefing schedule Friday at the Judicial Panel on Multidistrict Litigation. In their briefs, parties should address what steps they have taken to pursue alternatives to centralization including engaging in informal coordination of discovery and scheduling, said the order.

Jennifer Chiuchiarelli, April Yamaichi, Kiyomi Ishii and Richard Hopper moved for an order transferring 10 related putative class actions in In Re: Apple Inc. Smartphone Antitrust Litigation, plus any tag-along actions or other cases that may be filed asserting related or similar antitrust claims, to the Northern District of California for coordinated or consolidated pretrial proceedings, said their amended brief (docket 3113) in support of their motion to transfer Friday before the JPML.

Plaintiffs for actions listed in the amended brief are Chiuchiarelli, Deborah Collins, Jared Schermer, Richard Dwyer, Christopher Miller, Erick Loewen in the Northern District of California and Shoshi Goldfus, Christina Kolinsky, Louis Levine and Stacey Kurtz in the District of New Jersey. All these actions are brought by different law firms, said the brief. The related actions involve common questions of fact, assert overlapping and often identical claims and legal theories, seek similar relief, propose similar class definitions and are in preliminary procedural stages, said the amended brief.

The related actions are brought on behalf of consumers who bought iPhones and “overpaid” for them or otherwise suffered economic losses due to “Apple’s monopolization of the relevant smartphone markets,” the brief said. They have a common factual core, are brought against the same defendant and will rely upon common evidence, it said.

Plaintiffs also allege that Apple unlawfully maintains its monopoly power and “harms competition by imposing contractual restrictions, fees and taxes on app creation and distribution,” specifically super apps and cloud streaming apps, said the brief. They further allege that Apple uses “critical access points” in the smartphone ecosystem “to control the behavior and innovation of third parties” to “insulate itself from competition.”

All the related actions bring the same two claims: monopolization and attempted monopolization of the U.S. smartphone market in violation of the Sherman Act, 15 U.S.C. section 2, said the brief. Eight of the related actions also allege monopolization and attempted monopolization of the performance smartphone market under the same law, and seven related actions allege state law claims: the California Unfair Competition Law and the New Jersey Antitrust Act. Chiuchiarelli alleges a tying claim under the Sherman Act, it said.

Plaintiffs in the related actions all seek damages, declaratory relief, injunctive relief, attorneys’ fees and other relief. “As suggested by the nature of the allegations and the size of the putative class,” the related actions will involve “complex and voluminous electronic discovery,” including discovery and analysis of Apple’s software and hardware that will involve engineering experts, the brief said. The case will require a market analysis requiring economic experts, plus a damage analysis by experts, it said. If the cases remain in separate districts there will “inevitably be duplicative motions, depositions, and production of documents."

The proposed class definitions of the related actions overlap and are “largely similar,” said the brief. The 10 class actions all involve consumers who bought iPhones within a certain time period; if multiple proposed classes in the related actions were to be certified, “complicated and inconsistent outcomes would almost certainly ensue,” it said. All related actions, filed March 21-April 2, are in “similarly preliminary procedural postures,” it said. Six of the 10 actions are in the Northern District of California, where the causes of action arise, where Apple is headquartered and where witnesses reside, it said.

Transfer of the actions to a single district court for coordinated or consolidated pretrial proceedings is appropriate because the actions share numerous and complex common issues of fact and law. Also, centralization would promote the just and efficient conduct of the actions and serve the overall convenience of parties, witnesses and the courts, said the brief.

The cases should be centralized in the Northern District of California because it’s the district in which the cases with the broadest allegations are pending; it has experience in managing class actions and complex litigation; and the district is “the site of the occurrence of the common facts.” Apple is located in the district, its employees and witnesses who will be deposed for the actions reside there, it’s the site of the occurrence of most of the common facts, and it’s “geographically in the middle of” where the related actions are pending, it said.

In addition, the district also has “experienced, skilled and available judges to oversee” the MDL, it said. Judges in the district are particularly experienced in MDL litigation and the complex discovery that occurs with a defendant technology company such as Apple, the brief said.

Court records Monday showed 18 similar actions in California state court and district courts in Northern California, Illinois, Minnesota and New Jersey, where the DOJ brought the first iPhone antitrust suit vs. Apple March 21 (see 2403210042).