via: The Recorder 11/18/14:
OAKLAND — A class of iPod buyers suing Apple seems likely to make it to trial intact, after an eleventh hour challenge from the company’s legal team fell flat. U.S. District Judge Yvonne Gonzalez Rogers said Tuesday she’s not willing to hack apart plaintiffs’ class two weeks before antitrust claims over Apple’s iPods and iTunes music store are set to go to trial. The class will proceed as-is, with two individual plaintiffs representing both end users and iPod retailers, Gonzalez Rogers ruled tentatively from the bench in Oakland. Apple had attempted to decertify the retail portion of the class, arguing the named plaintifs, both consumers, have different interests and damages calculations than those of resellers like Amazon, Best Buy, and Wal-Mart.
But Gonzalez Rogers said it’s too late.
“To decertify at this juncture on the eve of trial, I think frankly more than anything else severely puts at a disadvantage those unnamed class members,” she said. “And I’m just not willing to do it.”
The judge promised to follow up with a written ruling.
Plaintiffs lawyers, led by Robbins Geller Rudman & Dowd partner Bonny Sweeney, have accused Apple of illegally rigging certain iPod models so they would only play music purchased from the Apple iTunes store. By tying the devices to the music store, Apple created a near monopoly over the MP3 music market, plaintiffs lawyers argue.
After 10 years of litigation, jury selection is scheduled to start Wednesday. Plaintiffs estimate damages at about $350 million, with retailers entitled to about $150 million.
Apple is represented by Jones Day and Boies, Schiller & Flexner. William Isaacson, a Boies Schiller partner in Washington, D.C., took the lead role for Apple at Tuesday’s hearing.
Last month Gonzalez Rogers expressed concern over allowing consumer plaintiffs to represent retailers in the suit and encouraged plaintiffs lawyers to add a retail representative.
But Gonzalez Rogers wasn’t happy with their choice. Kenneth Riegel, owner of iPod retailer K&N Enterprises Inc., doesn’t appear to have standing to sue Apple, the judge said. K&N Enterprises became a void corporation after the company stopped paying required fees to the state of Delaware, Apple’s lawyers pointed out, which they say means he has no legal right to sue.”This proposed class representative has not met the statutory requirements,” Gonzalez Rogers said. “So I don’t see how I can have him serve.”
Plaintiffs have argued that the class is valid without Riegel, insisting they sought to add him only out of an abundance of caution.
Gonzalez Rogers said she would let plaintiffs proceed and let a higher court have the final word. .
“After reading your briefs and weighing all the issues, it finally occurred to me I should just let you try the case the way you teed it up,” she said, “and then you’ll take it to the Ninth Circuit and they’ll deal with it the way they’re going to deal with it.”
LA Law Guy 