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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 1 of 12 PageID: 969
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`JAVERBAUM WURGAFT HICKS
`KAHN WIKSTROM & SININS, P.C.
`1000 Haddonfield-Berlin Road, Suite 203
`Voorhees, NJ 08043
`Phone: 856.596.4100
`BY: Stanley O. King
`Attorney ID No.: 034131996
`Interim Liaison Counsel for Indirect iPhone Purchasers
`
`
`
`
`
` UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`IN RE: APPLE INC. SMARTPHONE
`ANTITRUST LITIGATION
`
`This Document Relates to:
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`All Indirect iPhone Purchaser Cases
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`
`
`
`Civil Action No. 2:24-md-03113
`(JXN)(LDW)
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`
`
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`INDIRECT IPHONE PURCHASER PLAINTIFFS’
`MEMORANDUM OF LAW IN SUPPORT OF
`APPOINTMENT OF AN EXECUTIVE COMMITTEE
`
`Pursuant to the Court’s Order dated October 17, 2024 (ECF No. 34),
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`Interim Co-Lead Counsel Berger Montague PC, Lockridge Grindal Nauen
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`PLLP, Schneider Wallace Cottrell Konecky LLP, and Spector Roseman &
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`Kodroff, P.C.
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`(collectively “Interim Co-Lead Counsel”) submit
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`this
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`memorandum of law in support of their motion to appoint an executive
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`committee of Cohen Milstein Sellers & Toll PLLC (“CMST”), Freed Kanner
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`London & Millen LLC (“FKLM”), Israel David LLC (“Israel”), Preti, Flaherty,
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 2 of 12 PageID: 970
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`Beliveau & Pachios, Chartered, LLP (“Preti”), and Reinhardt Wendorf &
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`Blanchfield (“RWB”) (collectively the “Executive Committee”).
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`I.
`
`INTRODUCTION
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`On October 17, 2024, the Court appointed Interim Co-Lead Counsel for
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`the Indirect iPhone Purchasers (“IIPs”) in this litigation and ordered IIPs to
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`“submit supplementary briefing to provide the Court with further details
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`regarding the necessity for, along with the duties and responsibilities of, the
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`proposed executive committee.” In re Apple Inc. Smartphone Antitrust Litig.,
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`2024 U.S. Dist. LEXIS 188896, *28 (D.N.J. Oct. 17, 2024).
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`The Executive Committee proposed by Co-Lead Counsel has the support
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`of all IIPs and their counsel as the result of counsel’s efforts to reach a consensus
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`agreement about the best leadership structure for the IIP class. As explained
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`below, appointment of the Executive Committee is an efficient approach to meet
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`the vast needs of this indirect purchaser litigation, which concerns tens of
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`millions of class members and the laws of over thirty states. The Executive
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`Committee will perform work only at the request of, and subject to the direction
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`of, Co-Lead Counsel pursuant to the time and billing protocols. See ECF No. 18-
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`4. Additionally, Co-Lead Counsel will utilize the resources of the Executive
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`Committee in a targeted way. Executive Committee firms will be assigned to
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`specific projects directed at key initiatives as this litigation proceeds.
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 3 of 12 PageID: 971
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`Consequently, the appointment of the IIP Executive Committee will promote the
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`efficient prosecution of the case and benefit the IIP class.
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`II. BACKGROUND
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`Co-Lead Counsel propose to work with an Executive Committee
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`consisting of CMST, FKLM, Israel, Preti, and RWB. Each of CMST, FKLM,
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`Israel, Preti, and RWB have attorneys whom Interim Co-Lead Counsel have
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`identified as capable of making valuable contributions to the proposed IIP class.
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`See ECF No. 18-1 at 25-26 (Daniel H. Silverman, CMST); 27-28 (Kimberly
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`Justice, FLKM); 33 (Israel David, Israel) 32 (Michael S. Smith, Preti); 30 (Garrett
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`Blanchfield, RWB).
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`Co-Lead Counsel have noted their intention to “assign such work to
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`particular attorneys or firms among the Proposed Interim Co-Lead Counsel or the
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`Executive Committee, or to additional indirect purchaser plaintiffs’ counsel as
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`appropriate given the needs of the case at that time.” ECF No. 18-1 at 37. This
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`approach, which has been adopted and successfully implemented in many
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`significant antitrust cases, see, e.g., ECF No. 18-1 at 9-10, 17, 21, 30-31
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`(identifying antitrust cases in which courts appointed executive committees in
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`addition to lead counsel), is consistent with Co-Lead Counsel’s plan to efficiently
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`manage this litigation.
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`Rule 23(g)(1)(B) provides Interim Co-Lead Counsel the ability to delegate
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 4 of 12 PageID: 972
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`tasks to other attorneys to help serve the needs of class action litigation. Lindquist
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`v. NCB Mgmt. Servs., 2023 U.S. Dist. LEXIS 100386, *10 (E.D. Pa. June 5, 2023)
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`(ordering lead counsel to include executive committee in “use of specific, task-
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`oriented, work assignments”). Interim Co-Lead Counsel propose to employ the
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`Executive Committee firms for targeted tasks that match their strengths with the
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`needs of the case. For instance, Executive Committee members will likely have
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`significant responsibility for the following tasks, subject to the oversight of Co-
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`Lead Counsel:
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`• Plaintiff discovery. Document collection and production,
`preparing for and defending depositions, and assisting in trial
`strategy for testimony of IIP for potentially dozens of class
`representatives.
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`• Third-party discovery. Subpoenas to third-party retailers who sell
`iPhones to IIP class members, including phone carriers like AT&T,
`Verizon, and T-Mobile, and retailers like Best Buy and Walmart.
`This may involve meet and confers regarding the production of
`structured sales data and other documents, and depositions.
`
`• Government liaison. Outreach to, and communication and
`coordination with, government antitrust enforcers (the U.S.
`Department of Justice and state attorneys general).
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`• Briefing and legal research. There may be discrete research or
`briefing assignments related to motion practice, such as a motion to
`dismiss or class certification.
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`• Work with experts. Work with economic and potentially other
`experts in developing their expert reports and testimony.
`The proposed Executive Committee (like all IIP counsel) will be subject to
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`the time and billing protocol developed by Interim Co-Lead Counsel, to ensure
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 5 of 12 PageID: 973
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`efficacy and avoid duplication of efforts. See ECF No. 18-4.
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`III. ARGUMENT
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`Co-Lead Counsel have the resources to litigate this action without the
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`assistance of other lawyers. However, given the needs of the case, empowering
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`Interim Co-Lead Counsel with the authority to utilize a formal Executive
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`Committee will promote the efficient litigation of this case.
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`Courts appoint executive committees when class action litigation, as here,
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`concerns millions of potential class members and numerous state laws. See In re
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`Lipitor Antitrust Litig., No. 312CV2389PGSDEA, 2020 WL 5642175, at *2, *4
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`(D.N.J. Sept. 22, 2020) (interim co-lead counsel and six-member executive
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`committee appointed in case involving indirect purchasers and state laws); see
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`also Owens v. MGM Resorts Int’l, 2024 U.S. Dist. LEXIS 191355, *21-22 (D.
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`Nev. Oct. 21, 2024) (“[S]teering committee will provide support to interim co-
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`counsel, maximize efficiency of the litigation, and supply added diversity in
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`leadership” in case “involving plaintiffs from numerous states and millions of
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`potential class members.”); In re Data Breach Sec. Litig. Against Caesars Ent.,
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`Inc., 2024 U.S. Dist. LEXIS 104130, *24 (D. Nev. June 12, 2024) (appointing
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`steering committee citing “multiplicity of suits, complexity of claims, and
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`diversity of the plaintiffs”).
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`Courts also appoint executive committees to accomplish discrete tasks
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 6 of 12 PageID: 974
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`delegated to them by lead counsel, as it is typical in complex litigation such as
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`this for there to be many tasks needing attention at any given time. Indeed, the
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`Manual for Complex Litigation encourages the appointment of committees for
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`this very reason: “The court or lead counsel may task committees with preparing
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`briefs or conducting portions of the discovery program if one lawyer cannot do
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`so adequately.” Manual for Complex Litigation (Fourth) § 10.221 (2004)). There
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`is no lost efficiency when this occurs; deploying additional attorney resources,
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`either within Co-Lead Counsel firms or at Executive Committee firms, does not
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`change the fact that at times, the case will be busier and additional attorney work
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`is needed.
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`Although, as the Court observed (ECF No. 34 at 7-8), the Manual also
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`notes that “Committees are most commonly needed when group members’
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`interests and positions are sufficiently dissimilar” (§ 10.221), that is neither a
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`mandate nor a prerequisite.1 Even in cases without such concerns, there is utility
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`of an experienced executive committee working at the direction of lead counsel.
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`A. Co-Lead Counsel Will Use the Executive Committee to Maximize the
`Benefit to The Class.
`1. Co-Lead Counsel Will Deploy Executive Committee Resources
`
`
`1 While some courts have cited this provision of the Manual to reject an executive
`committee in class action litigation, they have usually done that where the
`litigation is “straightforward.” See, e.g., In re Amazon Return Pol'y Litig., 2024
`U.S. Dist. LEXIS 30916, *11 (W.D. Wash Feb. 22, 2024).
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 7 of 12 PageID: 975
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`to Specific Projects.
`Co-Lead Counsel have outlined above the specific tasks they would assign
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`the Executive Committee. Pursuant to the Manual, numerous courts in this
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`Circuit have appointed executive committees to accomplish assigned tasks when
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`it would be efficient. See § 10.221 (“The court or lead counsel may task
`
`committees with preparing briefs or conducting portions of the discovery
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`program...”); In re Lipitor Antitrust Litig., 2020 WL 5642175 at *4 (appointing
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`executive committee member specifically to “advis[e] on California consumer
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`issues”); Lindquist v. NCB Mgmt. Servs., Inc., No. CV 23-1236, 2023 WL
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`3914287, at *3 (E.D. Pa. June 5, 2023) (appointing four members to steering
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`committee and ordering that co-lead counsel may “direct[]” and “delegate
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`specific tasks to the Plaintiffs’ Steering Committee in a manner to ensure that
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`pretrial preparation for Plaintiffs…is conducted efficiently and effectively”); In
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`re Shop-Vac Mktg. & Sales Pracs. Litig., No. 4:12-MD-2380, 2013 WL 183855,
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`at *4 (M.D. Pa. Jan. 17, 2013) (appointing seven firms to executive committee
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`authorized to “perform any other function assigned by interim class counsel”).
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`Here, Co-Lead Counsel will utilize the Executive Committee in exactly
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`this way, delegating tasks at various stages of the litigation where it would be
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`efficient. For example, as described in more detail above, Executive Committee
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`personnel will work with Co-Lead Counsel on projects such as plaintiff
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 8 of 12 PageID: 976
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`discovery, third-party discovery, liaising with government enforcers, legal
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`research and briefing, and development of expert testimony.
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`In fact, Co-Lead Counsel have already leveraged the proposed Executive
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`Committee firms to assist with certain projects related to the forthcoming
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`consolidated complaint, including work with potential class representatives and
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`discrete research assignments. This work will benefit the class and has been
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`performed efficiently and effectively.
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`2. The Needs of this Litigation Favor Appointment of an Executive
`Committee for IIPs.
`This class action litigation concerns dozens of states’ laws and tens of
`
`millions of potential class members. Due to the complexity and scope of this
`
`class action, appointment of an Executive Committee is prudent.
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`Most iPhones are purchased indirectly, through telecommunications
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`carriers such as AT&T or at retail outlets such as Best Buy. IIPs will ultimately
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`need to prove that they paid supracompetitive prices for the iPhones they
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`purchased from those third parties. The potential for third-party discovery
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`involving downstream distribution, through third-party sellers to IIP class
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`members, is an additional layer of complexity involved only in the IIPs’ case.
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`Additionally, because state antitrust laws provide the only damages
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`remedies for indirect purchases, there are over thirty states’ laws implicated in
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`this antitrust litigation. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 9 of 12 PageID: 977
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`That means there may be dozens of class representatives and legal issues briefed
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`under the law of over thirty states, necessitating additional work unique to the
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`IIPs’ case. Courts have concluded that such litigation can support the
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`appointment of an executive committee. See Mack v. LLR, Inc., 2018 U.S. Dist.
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`LEXIS 229666, *15 (C.D. Cal. Jan. 31, 2018) (noting the claims concerned laws
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`of California, Texas, New Jersey, Ohio, and Oregon and agreeing that “the
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`proposed Executive Committee members here all serve an important role in
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`navigating any differences due to jurisdiction, location, and law”).
`
`3. Executive Committee Appointments Will Provide Additional
`Perspectives.
`The Manual also instructs that “[i]ncluding plaintiffs’ attorneys with
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`different perspectives and experience in lead or liaison counsel or as committee
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`members can be helpful.” § 22.62; see also In re Lipitor Antitrust Litig., 2020
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`WL 5739151 at *4 (“More diversity and a fresh approach may broaden the
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`perspective of the Interim Co-Lead Counsel,” noting that the “four Interim Lead
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`Counsel” and “six-member executive committee” provided a “diverse and
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`broader management structure”). The Executive Committee
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`includes
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`geographically diverse firms, firms of different sizes, and varied practice
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`backgrounds to provide additional perspectives in this important litigation.
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`Each of the Executive Committee firms are accomplished, and the
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`attorneys with primary responsibility for this litigation at each firm have
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 10 of 12 PageID:
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`strengths and experience that will supplement the leadership team working on
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`behalf of the proposed class. See ECF No. 18-1 at 25-26 (Daniel Silverman,
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`CMST); 27-28 (Kimberly Justice, FLKM); 30 (Garrett Blanchfield, RWB); 32
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`(Michael Smith, Preti); 33 (Israel David, Israel).
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`The members of the proposed Executive Committee will provide Interim
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`Co-Lead Counsel with input from a diverse group of attorneys with “a broad
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`range of experiences, background, and perspectives to their tasks.” See James F.
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`Humphreys Complex Litigation Center, George Washington Law School,
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`Inclusivity and Excellence: Guidelines and Best Practices for Judges Appointing
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`Lawyers to Leadership Positions in MDL and Class-Action Litigation (Mar. 15,
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`2021). This is particularly important where, as here, there are many class
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`members “and the class is likely to be diverse itself.” See Granata v. Pratt &
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`Whitney, No. 3:21-CV-01657 (SVN), 2022 WL 732271, at *5 (D. Conn. Mar.
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`11, 2022).
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`IV. CONCLUSION
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`The Court should appoint CMST, FKLM, RWB, Preti, and Israel as the
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`Executive Committee to help prosecute this litigation.
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 11 of 12 PageID:
`979
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`Dated: October 31, 2024
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`Respectfully submitted,
`
`
`JAVERBAUM WURGAFT HICKS
`KAHN WIKSTROM & SININS, P.C.
`
`
`BY: /s/ Stanley O. King
`STANLEY O. KING, ESQ.
`231 S. Broad Street
`Woodbury, NJ 08096
`Tel: 856.845.3001
`Fax: 856.845.3079
`Stanley O. King
`Attorney ID No. 03413-1996
`
`Proposed Liaison Counsel for Plaintiffs
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`/s/ Michael Dell’Angelo
`Michael Dell’Angelo (pro hac vice)
`BERGER MONTAGUE PC
`1818 Market Street, Suite 3600
`Philadelphia, PA 19103
`Tel: (215) 875-3000
`mdellangelo@bm.net
`
`/s/ Heidi M. Silton
`Heidi M. Silton
`Jessica N. Servais
`Joseph C. Bourne
`LOCKRIDGE GRINDAL NAUEN
`PLLP
`100 Washington Avenue South, Suite
`2200
`Minneapolis, MN 55401
`Tel: (612) 339-6900
`hmsilton@locklaw.com
`jnservais@locklaw.com
`jcbourne@locklaw.com
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`Case 2:24-md-03113-JXN-LDW Document 44 Filed 10/31/24 Page 12 of 12 PageID:
`980
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`/s/ Matthew S. Weiler
`Matthew S. Weiler (to file pro hac vice)
`Todd M. Schneider (to file pro hac vice)
`Jason H. Kim (to file pro hac vice)
`Mahzad K. Hite (to file pro hac vice)
`Raymond S. Levine (to file pro hac vice)
`SCHNEIDER WALLACE COTTRELL
`KONECKY LLP
`2000 Powell Street, Suite 1400
`Emeryville, CA 94608
`Tel: (415) 421-7100
`mweiler@schneiderwallace.com
`
`/s/ William G. Caldes
`William G. Caldes (SBN 00062-1995)
`Jeffrey L. Spector (SBN 03375-2007)
`Cary Zhang (SBN 37948-2021)
`SPECTOR ROSEMAN & KODROFF,
`P.C.
`2001 Market Street, Suite 3420
`Philadelphia, PA 19103
`Tel: (215) 496-0300
`bcaldes@srkattorneys.com
`jspector@srkattorneys.com
`czhang@srkattorneys.com
`
`Proposed Interim Co-Lead Counsel
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