Case 2:24-md-03113-JXN-LDW Document 34 Filed 10/17/24 Page 1 of 12 PageID: 944
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`IN RE: APPLE INC. SMARTPHONE
`ANTITRUST LITIGATION
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`This Document Relates To: All Actions
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`Civil Action No. 2:24-md-03113
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`MDL 3113
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`OPINION
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`NEALS, District Judge:
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`This matter comes before the Court upon the following four groups of motions for the
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`appointment of interim co-lead counsel in this multi-district litigation: (1) Steve W. Berman of
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`Hagens Berman Sobol Shapiro, LLP (“Hagens Berman”), Dena Sharp of Girard Sharp LLP
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`(“Girard Sharp”), Christopher A. Seeger of Seeger Weiss, LLP (“Seeger Weiss”), and James E.
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`Cecchi of Carella Bryne Cecchi Brody & Agnello, P.C. (“Carella Bryne”; collectively with Hagens
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`Berman, Girard Sharp, and Seeger Weiss, “DIP Group 1”) on behalf of direct iPhone purchasers
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`(ECF No. 17); (2) Hausfeld LLP (“Hausfeld”) and Susman Godfrey LLP (“Susman Godfrey”;
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`collectively with Hausfeld, “DIP Group 2”) on behalf of direct iPhone purchasers (ECF No. 19);
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`(3) Schneider Wallace Cottrell Konecky LLP (“Schneider Wallace”), Berger Montague PC
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`(“Berger Montague”), Lockridge Grindal Nauen PLLP (“Lockridge Grindal”), and Spector
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`Roseman & Kodroff, P.C. (“Spector Roseman”; collectively, with Schneider Wallace, Berger
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`Montague, and Lockridge Grindal, “IIP Group”) on behalf of indirect iPhone purchasers (ECF No.
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`18); and (4) Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. (“Kellogg, Hansen”), Korein
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`Tillery LLC (“Korein Tillery”), and MoloLamken LLP (“MoloLamken”) (“DAWP Group”) on
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`behalf of direct Apple Watch purchasers. (ECF No. 20).
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`For the reasons set forth below, the DAWP Group’s motion to appoint Kellogg, Hansen,
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`1
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`Korein Tillery, and MoloLamken as co-lead interim counsel for the putative Direct Apple Watch
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`Purchaser Plaintiff Class and McElroy, Deutsch, Mulvaney & Carpenter, LLP (“McElroy,
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`Deutsch”) as liaison counsel (ECF No. 20) is GRANTED. The IIP Group’s motion to appoint
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`Schneider Wallace, Berger Montague, Lockridge Grindal, and Spector Roseman as co-lead interim
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`counsel for the putative Indirect iPhone Purchaser Plaintiff Class and Javerbaum Wurgaft Hicks
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`Kahn & Sinins, P.C. (“Javerbaum”) as liaison counsel (ECF No. 18) is GRANTED, but the Court
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`RESERVES decision on the request for appointment of an executive committee until after
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`supplementary briefing is submitted and reviewed by the Court. The Court similarly RESERVES
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`its decision on the DIP Group 1 and DIP Group 2’s competing motions for appointment as co-lead
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`interim counsel for the putative Direct iPhone Purchaser Plaintiff Class (ECF Nos. 17, 19) until
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`after supplementary briefing is submitted and reviewed by the Court. Upon reviewing the Groups’
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`supplementary briefings, the Court will determine whether oral argument is necessary to address
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`any outstanding issues pertaining to the leadership applications.
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`I.
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`BACKGROUND
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`On June 7, 2024, the Judicial Panel on Multidistrict Litigation transferred this matter to
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`this Court. (ECF No. 1). Thereafter, on July 25, 2024, this Court issued a Case Management
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`Order, which required Plaintiffs, in pertinent part, to meet and confer regarding proposed
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`leadership for all cases and submit applications outlining the proposed Interim Class Counsel.
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`(ECF No. 7).
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`On August 8, 2024, the Court received four motions from counsel for the following interim
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`lead counsel designations: (1) the DIP Group 1 on behalf of direct iPhone purchasers (“DIP Group
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`1 Br.”); (2) the DIP Group 2 on behalf of direct iPhone purchasers (“DIP Group 2 Br.”); (3) the
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`IIP Group on behalf of indirect iPhone purchasers (“IIP Group Br.”); and (4) the DAWP Group on
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`2
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`behalf of direct Apple Watch purchasers (“DAWP Group Br.”). (ECF Nos. 17-20). On August
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`22, 2024, the DIP Group 2, the DIP Group 1, and the DAWP Group filed responses.1 (ECF Nos.
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`21-23). This matter is now ripe for consideration.
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`II.
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`STANDARD OF REVIEW
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`Federal Rule of Civil Procedure 23(g)(3) provides the “court may designate interim class
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`counsel to act on behalf of the putative class before determining whether to certify the action as a
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`class action.” This typically occurs in cases where “a large number of putative class actions have
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`been consolidated or otherwise are pending in a single court.” Donaldson v. Pharmacia Pension
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`Plan, No. 06-3, 2006 WL 1308582, at *1 (S.D. Ill. May 10, 2006). Further:
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`Although neither the federal rules nor the Advisory Committee Notes expressly so
`state, it appears to be generally accepted that the considerations set out in Rule
`23(g)(1)(C), which govern the appointment of class counsel once a class is certified,
`apply equally to the designation of interim class counsel before certification.
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`Yaeger v. Subaru of Am., Inc., No. 15-864, 2014 WL 7883689, at *1 (D.N.J. Oct. 8, 2014) (quoting
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`In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006)); Waudby v.
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`Verizon Wireless Servs., Inc., 248 F.R.D. 173, 175-76 (D.N.J. 2008) (finding that courts choosing
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`interim class counsel can apply the same factors that apply in choosing class counsel at the time
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`of certification of the class, i.e., the standards set forth in Rule 23(g)(1)).
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`The factors courts consider for the appointment of interim lead counsel are:
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`(i) the work counsel has done in identifying or investigating potential claims in the
`action;
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`(ii) counsel’s experience in handling class actions, other complex litigation, and the
`types of claims asserted in the action;
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`1 The Court refers to the responses as the following:
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`• DIP Group 2’s Response Memorandum (ECF No. 21) – “DIP Group 2 Resp.”
`• DIP Group 1’s Response Memorandum (ECF No. 22) – “DIP Group 1 Resp.”
`• DAWP Group’s Response Memorandum (ECF No. 23) – “DAWP Group Resp.”
`3
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`(iii) counsel’s knowledge of the applicable law; and
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`(iv) the resources that counsel will commit to representing the class[.]
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`Fed. R. Civ. 23(g)(1)(A)(i)-(iv). “If more than one adequate applicant seeks appointment, the court
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`must appoint the applicant best able to represent the interests of the class.” Fed. R. Civ. P. 23(g)(2).
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`The Court also has the discretion to appoint more than one firm to act as co-lead counsel. See,
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`e.g., In re Air Cargo Shipping, 240 F.R.D. at 58-59 (appointing four law firms as co-lead counsel);
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`Nowak v. Ford Motor Co., 240 F.R.D. 355, 361-63 (E.D. Mich. 2006) (appointing two law firms
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`as interim co-lead counsel).
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`The Manual for Complex Litigation provides additional guidance regarding the propriety
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`of interim class counsel appointment prior to class certification:
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`If the lawyer who filed the suit is to be the only lawyer seeking appointment as
`class counsel, appointing interim class counsel may be unnecessary. If, however,
`there are a number of overlapping, duplicative, or competing suits pending in other
`courts, and some or all of those suits may be consolidated, a number of lawyers
`may compete for class counsel appointment. In such cases, designation of interim
`counsel clarifies responsibility for protecting the interest of the class during
`precertification activities, such as making and responding to motions, conducting
`any necessary discovery, moving for class certification, and negotiating settlement.
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`MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.11, at 246 (2004).
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`III. DISCUSSION
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`The Court has thoroughly reviewed and appreciates proposed counsels’ detailed
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`submissions regarding the appointment of interim class counsel. The Court finds that appointment
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`of interim class counsel in this matter will promote efficiency and avoid delay in the progress of
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`these consolidated purported class actions.
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`The Court first addresses Plaintiffs’ request for appointment of separate interim counsel
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`for the direct iPhone purchasers, indirect iPhone purchasers, and Apple Watches. (See IIP Group
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`4
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`at 10-11; DAWP Group at 7-12).2 Pursuant to Federal Rule of Civil Procedure 23(g)(4), “[c]lass
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`counsel must fairly and adequately represent the interests of the class.” As the IIP Group points
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`out, courts in this District have appointed separate counsel for direct and indirect purchasers in
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`antitrust class action litigation. See, e.g., In re Lipitor Antitrust Litig., Master Docket No. 12-2389,
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`ECF No. 109 (appointing separate interim counsel for direct purchaser and end-payors); In re:
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`Fragrance Indirect Purchaser Antitrust Litig., No. 23-3249, ECF No. 31 (appointing interim class
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`counsel fort indirect purchaser plaintiffs); In re: Vehicle Carrier Servs. Antitrust Litig., Master
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`Docket No. 13-3306, ECF No. 106 (appointing separate interim class counsel for direct purchaser
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`actions, end-payor actions, and automobile dealer indirect purchaser actions). The Court agrees
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`and finds separate counsel is necessary for the direct and indirect iPhone purchaser plaintiffs to
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`ensure that their interests are being “fairly and adequately represent[ed]” throughout litigation.
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`See Fed. R. Civ. P. 23(g)(4).
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`Additionally, the DAWP Group asserts the iPhone purchasers and direct Apple Watch
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`purchasers’ legal theories are distinct and warrant separate representation. (DAWP Group at 7-
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`12). The Court agrees. For instance, as the DAWP Group notes, the direct Apple Watch
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`purchasers allege “Apple’s conduct is a highly effective anticompetitive scheme to acquire and
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`maintain a monopoly in the market for iOS-connected smartwatches—restricting supply, harming
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`competition, and enabling Apple to charge supracompetitive prices for its Apple Watch as a
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`result.” Giamanco v. Apple Inc., No. 24-7238, ECF No. 1 ¶ 127. In contrast, the direct iPhone
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`purchaser plaintiffs that raise allegations pertaining to the Apple Watch allege Apple utilized
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`Apple Watches to prevent customers from purchasing other smartphones. See, e.g., Goldfus v.
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`Apple Inc., No. 24-4108, ECF No. 1 ¶ 118 (“Apple recognizes that driving users to purchase an
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`2 For sake of clarity, when citing the parties’ briefs, the Court cites to the page number listed in the ECF header. If
`there is no page number listed in the ECF header, the Court cites to the page number listed in the parties’ briefs.
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`Apple Watch, rather than a third-party cross-platform helps drive iPhone sales and reinforce the
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`moat around its smartphone monopoly.”); Chiuchiarelli v. Apple Inc., No. 24-7290, ECF No. 1 ¶
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`86 (“Apple uses smartwatches, a costly accessory, to prevent iPhone customers from choosing
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`phones other than iPhones. Apple prevents third-party developers from innovating and limits the
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`Apple Watch to the iPhone to bolster iPhone sales.”). To ensure the interests of the direct iPhone
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`purchasers, indirect iPhone purchasers, and direct Apple Watch purchasers are “fairly and
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`adequately” represented, the Court finds that the appointment of separate interim counsel is
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`appropriate. See Fed. R. Civ. P. 23(g)(4).
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`A. Direct Apple Watch Purchasers
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`Kellogg, Hansen, Korein Tillery, and MoloLamken seek appointment as co-lead interim
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`counsel for the putative Direct Apple Watch Purchaser Plaintiff Class. (See DAWP Group Br. at
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`12-31). As outlined in their uncontested motion, Kellogg, Hansen, Korein Tillery, and
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`MoloLamken are the only firms thus far to raise claims exclusively on behalf of Apple Watch
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`purchasers and “identify and bring monopolization and horizontal conspiracy claims on behalf of
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`Apple Watch purchasers.” (Id. at 13). Proposed co-lead interim counsel has also engaged in an
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`extensive investigation, which included conversations with class members, experts, and pertinent
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`third parties, along with engaging a technical expert. (Id. at 14). Additionally, proposed co-lead
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`interim firms, along with respective attorneys, are experienced in antitrust and class action
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`litigation, have “‘knowledge of the applicable law,’” and have “substantial resources . . . to ensure
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`this litigation is conducted as effectively and efficiently as possible.” (Id. at 15-32 (quoting Fed.
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`R. Civ. P. 23(g)(1)(A)). The Court appoints Kellogg, Hansen, Korein Tillery, and MoloLamken
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`as co-lead interim counsel for the putative Direct Apple Watch Purchaser Plaintiff Class.
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`McElroy, Deutsch, led by partners Thomas R. Curtin and Kathleen N. Fennelly, also seeks
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`appointment as liaison counsel for the putative Direct Apple Watch Purchaser Plaintiff Class. (Id.
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`at 31-33). The Court finds Mr. Curtin and Ms. Fennelly are experienced New Jersey litigators and
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`McElroy, Deutsch, along with Kellogg, Hansen, Korein Tillery, and MoloLamken, have the
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`necessary resources to effectively litigate the Apple Watch claims. (Id.) Accordingly, McElroy,
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`Deutsch is appointed as liaison counsel for the putative Direct Apple Watch Purchaser Plaintiff
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`Class.
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`B. Indirect iPhone Purchasers
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`Spector Roseman, Schneider Wallace, Berger Montague, and Lockridge Grindal seek
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`appointment as co-lead interim counsel for the putative Indirect iPhone Purchaser Plaintiff Class.
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`(See IIP Group Br. at 13-27). The Court finds that Spector Roseman, Schneider Wallace, Berger
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`Montague, and Lockridge Grindal, along with their highlighted attorneys, possess the knowledge,
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`experience, and resources needed to represent the interests of the putative Indirect iPhone
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`Purchaser Plaintiff Class fairly and adequately.
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`Javerbaum, led by partner Stanley King, also seeks appointment as liaison counsel for the
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`putative Indirect iPhone Purchaser Plaintiff Class. (See id. at 37-38). The Court finds Javerbaum,
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`along with Mr. King, have experience in class actions and complex litigation and are qualified to
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`serve as liaison counsel. As such, Javerbaum is appointed liaison counsel for the putative Indirect
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`iPhone Purchaser Plaintiff Class.
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`The IIP Group also seeks to appoint an executive committee to support its proposed interim
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`co-lead counsel. The Court finds at this juncture, however, it is not evident that a formal committee
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`of Plaintiffs’ counsel is either necessary or beneficial to the interests of the putative Indirect iPhone
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`Purchaser Plaintiff Class. The creation of a formal committee is “most commonly needed when
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`group members’ interests and positions are sufficiently dissimilar to justify giving them
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`representation in decision making.” MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.11, at 25
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`(2004). The IIP Group seemingly asserts appointment of the executive committee is necessary
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`because “Apple has vast resources at its disposal.” (IIP Group Br. at 12). However, the IIP Group
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`has already outlined the resources and qualifications of Spector Roseman, Schneider Wallace,
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`Berger Montague, and Lockridge Grindal, (id. at 13-27), and at this stage do not provide any
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`additional bases for appointing an executive committee. The Court is mindful of increased costs
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`and duplication of efforts that may come from appointing an executive committee. See MANUAL
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`FOR COMPLEX LITIGATION (FOURTH) § 21.11, at 25 (2004). As such, the IIP Group shall submit
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`supplementary briefing to provide the Court with further details regarding the necessity for, along
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`with the duties and responsibilities of, the proposed executive committee.
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`Accordingly, the Court grants the IIP Group’s motion to the extent it seeks the appointment
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`of Spector Roseman, Schneider Wallace, Berger Montague, and Lockridge Grindal as co-lead
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`interim counsel and Javerbaum as liaison counsel. The Court will address the IIP Group’s request
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`for appointment of an executive committee after reviewing the supplementary briefing.
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`C. Direct iPhone Purchasers
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`The DIP Group 1 and DIP Group 2 have submitted competing motions for appointment as
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`interim co-lead counsel for the putative Direct iPhone Purchaser Plaintiff Class. (See generally
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`DIP Group 1 Br.; DIP Group 2 Br.). In considering the qualifications of the applicant firms, the
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`Court is satisfied that both the DIP Group 1 and DIP Group 2, if appointed, would fairly and
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`adequately represent the interests of the Direct iPhone Purchaser Plaintiff Class.
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`The Court first considers “the work counsel has done in identifying or investigating
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`potential claims in the action.” Fed. R. Civ. P. 23(g)(1)(A)(i). The Court recognizes the unique
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`nature of these putative class actions as the Department of Justice completed its investigation and
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`filed its complaint on March 21, 2024, prior to the initial multi-district complaint, Goldfus, being
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`filed on March 22, 2024. See United States of Am. v. Apple Inc., No. 24-4055. The DIP Group 1
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`contends neither Group “can legitimately claim to have independently identified or investigated
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`potential claims in this action” because the private class actions filed in this multi-district litigation
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`were “largely, if not exclusively, based” on the Department of Justice’s investigation and
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`complaint. (DIP Group 1 Br. at 14). In contrast, the DIP Group 2 argues the proposed co-leads
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`have done significant work in identifying and investigating the claims because the Goldfus
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`complaint “expanded considerably” on the Department of Justice’s allegations. (DIP Group 2 Br.
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`at 17). As discussed infra, the Court requests supplemental briefing by both Groups regarding
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`their leadership proposals. Accordingly, the Court will not determine whether the first Rule
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`23(g)(1) factor weighs in one Group’s favor.
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`The Court next considers the proposed law firms and attorneys’ “experience in handling
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`class actions, other complex litigation, and the types of claims asserted in the action” and
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`“knowledge of the applicable law.” Fed. R. Civ. P. 23(g)(1)(a)(ii)-(iii); see also In re Imagine360,
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`LLC Data Sec. Incident Litig., No. 23-2603, 2023 WL 6810247, at *2 (E.D. Pa. Oct. 16, 2023)
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`(finding that the same supporting reasons for factor two supported factor three). Upon reviewing
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`the competing motions and documentary support, the Court finds the firms and their respective
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`attorneys are well-credentialled lawyers with significant antitrust and class action experience. (See
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`DIP Group 1 Br. at 16-24; DIP Group 2 Br. at 20-37).
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`Further, based on the record, the Court is confident that either set of counsel would devote
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`the necessary resources these actions require. See Fed. R. Civ. P. 23(g)(1)(a)(iv).
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`Notwithstanding, there are issues that remain that preclude the Court from appointing
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`interim co-lead counsel for the putative Direct iPhone Purchaser Plaintiff Class. First, both Groups
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`respectively propose the appointment of numerous attorneys. (See generally DIP Group 1 Br.;
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`DIP Group 2 Br.). The DIP Group 1 proposes sixteen lawyers broken down into four co-lead
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`counsel, a seven-member executive committee, and a five-member steering committee. (See
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`generally DIP Group 1 Br.). In support of its request for this structure, the DIP Group 1 cites to
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`several complex cases, such as In re National Prescription, MDL No. 2804, No. 17-2804 (N.D.
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`Ohio) and In re Apple Inc. Device Performance Litigation, MDL No. 2837, No. 18-2827 (N.D.
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`Cal.), where the Court has appointed “similar structures.” (See DIP Group 1 Br. at 40-42).
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`However, the Court finds the DIP Group 1 has not provided sufficient grounds for this structure
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`here.
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`The Court seeks to “achiev[e] efficiency and economy without jeopardizing fairness to the
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`parties.” MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.11, at 25 (2004). As discussed supra,
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`committees, such as steering committees and executive committees, “are most commonly needed
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`when group members’ interests and positions are sufficiently dissimilar to justify giving them
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`representation in decision making.” Id. However, the DIP Group 1 does not reference any
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`differing interests amongst putative Direct iPhone Purchaser Plaintiff Class members in its motion.
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`As such, the DIP Group 1 shall provide supplementary briefing addressing why the requested
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`leadership structure is warranted in this matter and the respective duties and responsibilities of the
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`proposed co-lead counsel, executive committee members, and steering committee members.
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`Moreover, the DIP Group 2 proposes that Hausfeld and Susman Godfrey serve as co-lead
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`counsel and further provides biographies for fifteen attorneys across the two firms, along with
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`attorneys from Lite DePalma Greenberg & Afanador (“Lite DePalma”) and Michael Critchley Sr.
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`of Critchley, Kinum & Luria. (See generally DIP Group 2). In its motion, the DIP Group 2 does
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`not provide a clear breakdown of responsibilities between the law firms and their respective
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`attorneys. As such, the DIP Group 2 shall provide supplementary briefing addressing the duties
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`and responsibilities of the proposed co-lead counsel firms and the fifteen attorneys, along with the
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`anticipated roles of Lite DePalma and Mr. Critchley.
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`Finally, the Court encourages the DIP Group 1 and DIP Group 2 to meet and confer
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`regarding a proposed modified leadership structure, which involves attorneys from the respective
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`Groups. As the Court discussed supra, both Groups are well-credentialled lawyers with significant
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`antitrust and class action experience that have the ability to devote the necessary resources required
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`by these actions. Additionally, both Groups have stated in their respective motions that they have
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`worked with counsel from the opposing Group on other matters. (See DIP Group 1 Resp. at 6 n.5;
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`DIP Group 2 at 6 n.1); see also O’Bannon v. Nat’l Collegiate Athletic Ass’n, No. 09-3329, ECF
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`No. 140 (N.D. Cal. Jan. 15, 2010) (appointing Hagens Berman and Hausfeld as interim co-lead
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`class counsel).
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`Accordingly, the Court will reserve its decision on appointment of interim counsel for the
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`putative Direct iPhone Purchaser Plaintiff Class to allow the Groups to address these issues in
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`supplementary briefings.
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`IV. CONCLUSION
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`For the reasons set forth above, the DAWP Group’s motion to appoint Kellogg, Hansen,
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`Korein Tillery, and MoloLamken as co-lead interim counsel for the putative Direct Apple Watch
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`Purchaser Plaintiff Class and McElroy, Deutsch as liaison counsel (ECF No. 20) is GRANTED.
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`The IIP Group’s motion to appoint Schneider Wallace, Berger Montague, Lockridge Grindal, and
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`Spector Roseman as co-lead interim counsel for the putative Indirect iPhone Purchaser Plaintiff
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`Class and Javerbaum as liaison counsel (ECF No. 18) is GRANTED, but the Court RESERVES
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`decision on the request for appointment of an executive committee until after supplementary
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`briefing is submitted and reviewed by the Court. The Court similarly RESERVES its decision on
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`the DIP Group 1 and DIP Group 2’s competing motions for appointment as co-lead interim counsel
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`for the putative Direct iPhone Purchaser Plaintiff Class (ECF Nos. 17, 19) until after
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`supplementary briefing is submitted and reviewed by the Court. Upon reviewing the Groups’
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`supplementary briefings, the Court will determine whether oral argument is necessary to address
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`any outstanding issues pertaining to the leadership applications.
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`An appropriate Order accompanies this Opinion.
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`DATED: 10/17/2024
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`s/
`JULIEN XAVIER NEALS
`United States District Judge
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`12
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