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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 Direct Purchaser Plaintiff Actions
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`Case No. 24-MD-3113 (JXN-LDW)
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`HAUSFELD LLP’S & SUSMAN GODFREY LLP’S SUPPLEMENTAL
`BRIEF REGARDING LEADERSHIP FOR THE DIRECT iPHONE
`PURCHASER CLASS
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION ...................................................................................... 1
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`THE PROPOSED CO-LEADS HAVE ASSEMBLED EXPERIENCED
`COUNSEL FOR THE PROSECUTION OF THIS CLASS ACTION ....... 4
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`III. THE PROPOSED CO-LEADS ARE CONTINUING TO DEVELOP
`THE DIP CLASS’S ALLEGATIONS AND CLAIMS ............................... 6
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`CONCLUSION .......................................................................................................... 9
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`TABLE OF AUTHORITIES
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`In re Multiplan Health Insurance Provider Litigation,
`No. 23-cv-6795 (N.D. Ill.) ....................................................................................... 3
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`Rules
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`Fed. R. Civ. P. 23(g)(1) .............................................................................................. 7
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`Fed. R. Civ. P. 23(g)(1)(A)(i) .................................................................................... 6
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`Plaintiffs Shoshi Goldfus and Ira Polly respectfully submit this Supplemental
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`Brief to address the Court’s questions in its October 17, 2024 Order (ECF No. 35)
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`and in further support of Hausfeld’s and Susman’s application to serve as Interim
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`Co-Lead Counsel for the Direct iPhone Purchaser Plaintiff Class. (ECF No. 19).
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`INTRODUCTION
`I.
`America’s biggest companies, as sophisticated consumers of legal services for
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`high-stakes litigation, hire one or two law firms and local counsel to represent them.
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`Unsurprisingly here, when faced with one of the largest and most consequential
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`antitrust actions in decades, Apple has responded by retaining two elite national law
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`firms, Kirkland & Ellis and Gibson Dunn, and the local experts at Walsh Pizzi
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`O’Reilly Falanga, to defend against the suits.
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`The Direct iPhone Purchaser Class is entitled to the same efficient and
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`coordinated representation structure as Apple was able to obtain: two elite national
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`law firms, Hausfeld and Susman Godfrey (the “Proposed Co-Leads”), and New
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`Jersey experts Joseph DePalma and Michael Critchley (together, “DIP Group 2”).
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`The Proposed Co-Leads appreciate the Court’s recognition that they are “well-
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`credentialled lawyers with significant antitrust and class action experience” who
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`“would devote the necessary resources these actions require.” ECF No. 34 at 9. And
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`when two national antitrust firms, together with their local experts, have identified
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`appropriate lawyers and resources to do the work, no sophisticated consumer of legal
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`services would risk the inefficiency and waste of hiring sixteen firms instead, as
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`proposed by the competing DIP Group 1.
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`In response to the Court’s recent Opinion and Order, the Proposed Co-Leads
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`provide in Part II below additional details on the “duties and responsibilities of the
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`proposed co-lead counsel firms” and the “anticipated roles of” local expert New
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`Jersey counsel. See ECF No. 34 at 11. We emphasize at the outset that the Proposed
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`Co-Leads are a single coordinated team of attorneys with close working
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`relationships, including counsel who have tried an antitrust case to verdict together
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`as recently as a few months ago. Put simply, “what you see is what you get.” We
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`have expressly named each of the partner and counsel-level attorneys whom the
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`Court might reasonably expect to hear at arguments; to take significant depositions;
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`to lead the briefing on class certification, summary judgment, and other significant
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`motions; to work with expert witnesses; to guide the case strategically through
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`resolution or trial; to coordinate with other class and government plaintiffs; and to
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`be directly accountable to the DIP class and to the Court.
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`This transparent proposal differs markedly from DIP Group 1’s advocacy for
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`16 law firms—each of which has its own support staff, IT systems, and supporting
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`lawyers and paralegals—in leadership positions. Beyond the 16 lawyers identified
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`by DIP Group 1 for co-lead, executive committee, and steering committee positions,
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`a total of nearly 60 attorneys in total appear on the separate complaints filed by those
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`firms. For a single-defendant case in which DIP Group 1 has asserted that all of their
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`private class complaints were based on the action filed by the United States
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`Department of Justice (“DOJ”) and the States (see ECF No. 17 at 9), such a proposal
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`is neither efficient nor justifiable on the basis of any alleged dissimilarities in DIP
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`class members’ interests and positions.
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`Mindful of the Court’s request to seek a consensual resolution (ECF No. 34
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`at 11), the Proposed Co-Leads sought through direct outreach as well as mediation
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`before Judge Wettre to resolve the DIP class counsel leadership issues, but those
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`efforts have been unsuccessful. The two Proposed Co-Leads here are willing to work
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`in a balanced and manageable four-way leadership group, alongside two of the
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`proposed co-lead counsel from DIP Group 1 (affording the groups equal
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`representation and encouraging consensus in directing the litigation, as well as not
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`being too unwieldy). We would still welcome the contributions of other counsel, like
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`our local experts from Lite DePalma and Mr. Critchley, as appropriate. However,
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`there is no need for appointments beyond four such co-leads. Indeed, we believe that
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`any larger formal structure here is not only unnecessary but also at odds with the
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`best interests of the Class—as Judge Kennelly, presiding over a large antitrust MDL
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`in the Northern District of Illinois, recently found in rejecting a leadership structure
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`of nine firms, even in a multidefendant case. See In re Multiplan Health Insurance
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`Provider Litigation, No. 23-cv-6795 (N.D. Ill.), ECF No. 146 (order appointing
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`interim class counsel); id. ECF No. 117 (describing 3-firm leadership structure
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`appointed by the court); id. ECF No. 120 & 121-1 (describing 9-firm leadership
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`structure, plus additional liaison counsel, rejected by the court).
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`II. THE PROPOSED CO-LEADS HAVE ASSEMBLED
`EXPERIENCED COUNSEL FOR THE PROSECUTION OF THIS
`CLASS ACTION
`To answer succinctly the Court’s staffing question regarding DIP Group 2:
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`the duties and responsibilities of the Proposed Co-Leads will be to handle the day-
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`to-day litigation of the case just as Apple’s two law firms will handle the defense of
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`the case. At trial, lead counsel from Hausfeld and Susman will be joined by New
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`Jersey trial veteran Michael Critchley. Lite DePalma will serve in an advisory and
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`local counsel role and help coordinate the Plaintiff groups.
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`As explained in our application, the Proposed Co-Leads have been jointly
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`appointed to leadership in numerous recent significant antitrust cases, and they are
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`accustomed to integrating their teams as a “virtual firm” for that purpose. They also
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`have worked closely with Lite DePalma and Michael Critchley. While our DIP
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`Group 2 has identified lawyers to shepherd all anticipated phases of and work in the
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`litigation, some of them will of course figure more prominently than others. A deep
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`bench will enable the team to adjust staffing as needed for effective prosecution, and
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`a focused leadership team can nimbly integrate contributions of other counsel when
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`in the best interests of the class.
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`More specifically, here are the projected roles for each of the individual
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`lawyers involved in DIP Group 2. Melinda Coolidge and Scott Martin (both
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`Hausfeld) with Shawn Rabin and Cory Buland (both Susman) will share duties in
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`guiding the litigation day-to-day, as well as representing the DIP class at conferences
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`with the Court; arguing dispositive, class certification, and other significant motions;
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`and taking key fact and trial depositions. They will also divide oversight of
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`preparation of plaintiffs’ economic and industry experts, as well as discovery
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`directed to Apple’s experts, and related (Daubert) motion practice.
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`Sarah LaFreniere and Daniel Weick (both Hausfeld) with Mark Musico
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`and Elisha Barron (both Susman) will share day-to-day direction of written
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`discovery, including electronic discovery issues, as well as overseeing document
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`review and the synthesis of affirmative discovery into key document chronologies
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`and deposition preparation materials, along with assisting plaintiffs’ experts in that
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`regard. As the case may require, both firms have a vast source of other partners,
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`associates, and staff attorneys who can help with various tasks that a lawsuit like this
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`will require—just as Apple’s counsel at Kirkland and Gibson Dunn will call on
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`younger partners and associates to assist it in defending the case.1
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`1 For example, we may also call on Hausfeld partners Megan Jones for her expertise
`on privilege matters, Michael Lehmann for briefing and his expertise on additional
`evidence of Apple’s monopolistic practices, New Jersey-barred Katie Beran for
`“boots on the ground” during discovery, and former DOJ prosecutor Nick Murphy
`for coordination with DOJ attorneys and additional discovery support.
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`Lite DePalma attorneys have worked extensively with the Proposed Co-
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`Leads on fact discovery in significant antitrust matters for years and are prepared to
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`do so here, as well as coordinating communications with the Court and other
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`counsel, convening meetings of counsel, advising parties of developments, and
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`otherwise assisting in the coordination of activities among plaintiffs in the MDL.
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`William Carmody (Susman), Michael Hausfeld (Hausfeld), and Michael
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`Critchley will principally play high-level strategic roles before any trial, including
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`discussions with the team concerning trial themes and development of evidence, and
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`serve as lead trial counsel. They also will take a leading role in any settlement
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`discussions.
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`III. THE PROPOSED CO-LEADS ARE CONTINUING TO
`DEVELOP THE DIP CLASS’S ALLEGATIONS AND CLAIMS
`In the October 17 Order, the Court indicated that it was requesting
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`supplemental briefing and, accordingly, would not determine at that time whether
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`“the work counsel has done in identifying or investigating potential claims in the
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`action,” see Fed. R. Civ. P. 23(g)(1)(A)(i), weighed in favor of one DIP leadership
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`group. ECF No. 34 at 8-9. As detailed in the Proposed Co-Leads’ prior briefing, they
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`committed substantial resources and expertise to investigating the claims at issue,
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`such that named plaintiff Shoshi Goldfus was able to file the first private complaint
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`against Apple in connection with the antitrust violations at issue, the day after the
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`DOJ and the States filed their action, with allegations that expanded beyond those in
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`the DOJ’s complaint. See generally ECF No. 19-1 at 4-6, 8-11; ECF No. 21 at 20-
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`26.
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`Should the Court require further information concerning this Rule 23(g)(1)
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`factor, as indicated in our October 11, 2024 letter to the Court (ECF No. 33) the
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`Proposed Co-Leads’ team has continued research relevant to including additional
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`claims, beyond those pleaded by the DOJ and States, in an amended consolidated
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`DIP Class Complaint. Some of these additional allegations supporting DIP
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`plaintiffs’ claims of monopolization and attempted monopolization are summarized
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`below:
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`• Earlier this year, Apple announced that, with the introduction of iOS 18, it
`would provide artificial intelligence features (“AI”) for its iPhone and iPad.
`With respect to the former, however, the full scope of the new AI capabilities
`is not available to iPhone customers who did not purchase the most expensive
`version of iPhone 15 or the new iPhone 16, a fact that has caused significant
`discontent among such customers.2 This development also indicates that
`Apple distinguishes between its premium smartphones and its other
`smartphones.
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`• Also this year, under pressure from the European Commission (“EC”), Apple
`made numerous changes to its App Store and iOS that are available to
`customers in Europe3 but not to customers in the United States—resulting in
`widely-held perceptions among United States customers that they are treated
`as “second-class citizens.”4
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`2 https://www.forbes.com/sites/ewanspence/2024/06/20/apple-intelligence-ai-wwdc-iphone-15-
`pro-macbook-air-ipad-pro/.
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` https://www.macrumors.com/2024/09/10/apple-still-sells-these-lightning-products/.
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` https://pxlnv.com/linklog/ios-eu-changes-default-apps/;
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`• Similarly, in 2012, Apple introduced the proprietary (and often criticized)
`lightning connector for its iPhone, a move that was intended to entrench its
`“walled garden” and provide it with additional revenue. In 2023, again under
`pressure from the EC, Apple replaced that connector with a standard USB-C
`port for the iPhone 15 and subsequent models in both Europe and the United
`States—but as of 2024, Apple still uses lightning connectors for a number of
`its products sold domestically.5
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`• In May 2024, in proceedings in federal court in the Northern District of
`California concerning whether Apple complied with an order on anti-steering
`rules for the Apple App Store (which figures significantly in the allegations
`here), the court questioned Apple’s new program imposing 27% fees on out-
`of-app transactions, saying “all the new program does is maintain the anti-
`competitive environment” for the company's benefit.6
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`• While Apple in 2024 made changes that allowed Rich Communications
`Services to be used on the iPhone, so that Android phone users could send
`messages to iPhone users, the introduction of iOS 18 in September 2024 made
`that feature difficult to use for many iPhone users and was inferior to
`competing Android-based products.7
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`• And finally, recent reports indicate that Apple makes it nearly impossible for
`customers who want to switch from an iPhone to an Android phone to carry
`over much of their personal data, thus entrapping them permanently within
`Apple’s “walled garden.”8
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`https://mjtsai.com/blog/2024/09/10/eu-ios-envy/; https://mashable.com/article/5-best-new-ios-
`features-eu-dma; https://www.macworld.com/article/2440145/apples-greatest-fear-the-european-
`union-has-a-better-iphone.html.
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` 5
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` https://www.macrumors.com/2024/09/10/apple-still-sells-these-lightning-products/.
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` 6
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` https://www.law360.com/articles/1839898/antitrust-judge-questions-apple-s-phil-schiller-on-
`new-fees.
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`7https://discussions.apple.com/thread/255759205?sortBy=rank; https://www.pocket-lint.com/ios-
`18-rcs-rollout-issues/; https://www.forbes.com/sites/zakdoffman/2024/09/21/apples-ios-18-
`update-googles-new-warning-for-millions-of-phone-15-iphone-16-users/.
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` 8
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` https://www.tbsnews.net/bloomberg-special/iquit-my-hellish-attempt-leave-apples-walled-
`garden-666122.
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`IV. CONCLUSION
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`For all of the foregoing reasons, the undersigned counsel respectfully request
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`that the Court appoint the Hausfeld and Susman firms as co-lead counsel for the
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`proposed DIP class.
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`Dated: November 8, 2024
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`Respectfully submitted,
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`LITE DEPALMA GREENBERG
`& AFANADOR, LLC
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`/s/ Joseph J. DePalma
`Joseph J. DePalma
`570 Broad Street, Suite 1201
`Newark, NJ 07102
`Tel: (973) 623-3000
`jdepalma@litedepalma.com
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`Counsel for Plaintiff Ira Polly and the
`Putative Class
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`HAUSFELD LLP
`Michael D. Hausfeld*
`Melinda R. Coolidge*
`Sarah R. LaFreniere*
`Nick Murphy*
`Theodore DiSalvo*
`881 16th Street, NW Suite 300
`Washington, DC 20006
`Tel: (202) 540-7200
`mhausfeld@hausfeld.com
`mcoolidge@hausfeld.com
`slafreniere@hausfeld.com
`nmurphy@hausfeld.com
`tdisalvo@hausfeld.com
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`Katie R. Beran
`325 Chestnut Street
`Suite 900
`Philadelphia, PA 19106
`Tel: (215) 985-3270
`kberan@hausfeld.com
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`Scott Martin*
`Daniel P. Weick*
`33 Whitehall Street
`14th Floor
`New York, NY 10004
`Tel: (646) 357-1100
`smartin@hausfeld.com
`dweick@hausfeld.com
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`Michael P. Lehmann*
`Megan E. Jones*
`600 Montgomery Street
`Suite 3200
`San Francisco, CA 94111
`Tel: (415) 633-1908
`mlehmann@hausfeld.com
`mjones@hausfeld.com
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`Counsel for Plaintiffs Goldfus and Polly and
`their respective Putative Classes
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`SUSMAN GODFREY LLP
`William Christopher Carmody**
`Shawn J. Rabin**
`Cory Buland**
`Mark Musico**
`Elisha Barron**
`One Manhattan West, 50th Floor
`New York, NY 10001-8602
`Tel: (212) 336-8330
`bcarmody@susmangodfrey.com
`srabin@susmangodfrey.com
`cbuland@susmangodfrey.com
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`mmusico@susmangodfrey.com
`ebarron@susmangodfrey.com
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`Counsel for Plaintiff Polly and the Putative
`Class
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`CRITCHLEY & LURIA, LLC
`Michael Critchley
`75 Livingston Avenue
`Roseland, New Jersey 07068
`Tel: (973) 422-9200
`mcritchley@critchleylaw.com
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`Counsel for Plaintiff Goldfus and the
`Putative Class
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` *
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` admitted pro hac vice
`**pro hac vice forthcoming
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