Case 2:24-md-03113-JXN-LDW Document 51 Filed 11/08/24 Page 1 of 13 PageID:
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`James E. Cecchi, Esq.
`CARELLA, BYRNE, CECCHI
`BRODY & AGNELLO, P.C.
`5 Becker Farm Road
`Roseland, New Jersey 07068
`Telephone: (973) 994-1700
`jcecchi@carellabyrne.com
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`[Additional counsel appear on signature page]
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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:
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`DIRECT PURCHASER ACTIONS 
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`Civil Action No. 2:24-md-03113
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`(JXN)(LDW) MDL 3113 
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`DIRECT IPHONE PURCHASER GROUP 1’S
`SUPPLEMENTAL LEADERSHIP SUBMISSION
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`TABLE OF CONTENTS
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`TITLE
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`TABLE OF AUTHORITIES .................................................................................................................. ii
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`I.
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`II.
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`III.
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`INTRODUCTION ...................................................................................................................... 1
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`BACKGROUND ........................................................................................................................ 3
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`ARGUMENT .............................................................................................................................. 4
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`A. Executive Committees Are Appropriate in large MDLs ....................................................... 5
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`B. The Particular Demands of This Case Warrant an Executive Committee ............................ 6
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`C. The Members of DIP Group 1 Will Have Specific Responsibilities .................................... 8
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`i
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`In re Air Cargo Shipping Servs. Antitrust Litig.,
`240 F.R.D. 56 (E.D.N.Y. 2006) .................................................................................................5
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`In re Apple Inc. Device Performance Litig.,
`2018 WL 11360203 (N.D. Cal. May 15, 2018) .....................................................................6, 9
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`In re Juul Labs, Inc., Mktg., Sales Practices, and Prods. Liab. Litig.,
`No. 3:19-md-02931-WHO (N.D. Cal.), ECF No. 381 ...............................................................3
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`In re Lipitor Antitrust Litig.,
`2020 WL 5642175 (D.N.J. Sept. 22, 2020) ...............................................................................6
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`In re Meta Pixel Healthcare Litig.,
`2022 WL 18399978 (N.D. Cal. Dec. 21, 2022) .....................................................................5, 6
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`Owens v. MGM Resorts Int’l,
`2024 WL 4544787 (D. Nev. Oct. 21, 2024) ..............................................................................5
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`Other Authorities
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`MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004) .......................................................4, 5, 7, 8
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`William B. Rubenstein, 3 Newberg & Rubenstein on Class Actions, (6th ed. 2024) ..................5, 8
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`ii
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`I.
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`INTRODUCTION
`Consistent with this Court’s Order (ECF No. 34) and Magistrate Judge Wettre’s Text Order
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`(ECF No. 42), the Direct iPhone Purchaser Group 1 (“DIP Group 1”) respectfully submits this
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`supplemental memorandum providing a revised leadership proposal and supporting the appointment of
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`an executive committee.
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`There is no question that there are many talented lawyers before the Court, many of whom have
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`successfully litigated antitrust and consumer cases across the country. But success is not synonymous
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`with leadership, particularly in a large national MDL. Leadership is defined by building consensus and
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`inspiring lawyers to sublimate ego for the greater good of the whole. It is only through leadership that
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`a diverse multi-firm group of lawyers can function as a unified whole and maximize benefits for the
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`class.
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`DIP Group 1 has consistently demonstrated our leadership from the inception of the case and,
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`in fact, built consensus across every firm. It was our intention to submit a single consensus proposal to
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`the Court. After organizing that consensus proposal, and without any prefatory discussions, one firm
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`chose a different path, defected from the consensus proposal, and brought other lawyers into the case
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`for the sole purpose of buttressing their chances of appointment. That is the opposite of consensus
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`building and leadership. It is telling that not one of the firms that supports DIP Group 1’s proposal
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`chose to support them.
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`Despite the significant work that went into building our original consensus proposal, and despite
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`the unfortunate delay caused by competing applications, we are still willing to lead and to build
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`consensus. As will be detailed below, we have revised our proposal in a manner that integrates into the
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`case leadership every single firm from DIP Group 2. We do so because we believe that achieving
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`consensus now is in the Plaintiffs’ best interests and reflects the kind of leadership the MDL deserves.
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`1
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`It is imperative that we begin interfacing with the Government plaintiffs and move the private DIP case
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`forward efficiently.
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`Our new proposal adds most of DIP Group 2’s firms while maintaining an efficient structure.
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`For Co-Lead Counsel, we propose adding Susman Godfrey to form a five-firm group consisting of
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`James Cecchi of Carella Byrne, Chris Seeger of Seeger Weiss, Steve Berman of Hagens Berman, Dena
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`Sharp of Girard Sharp, and Shawn Rabin from Susman Godfrey. In addition, we propose drawing on
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`the experience of two esteemed counsel and their local firms from Group 2: Michael Critchley Sr. of
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`Critchley, Kinum & Luria as Trial Counsel, and either Joseph DePalma or Bruce Greenberg of Lite
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`DePalma Greenberg & Afanador as Liaison Counsel. Mr. Critchley is a renowned trial attorney, and
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`his addition would complement the skills of the other experienced trial lawyers in Group 1. The addition
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`of Mr. DePalma or Mr. Greenberg as Liaison Counsel is also sensible, given their firm’s decades-long
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`track record in class cases in this district (as well as Mr. Greenberg’s appellate skills).
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`Our Executive Committee, as revised, would add an attorney from the Hausfeld firm to DIP
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`Group 1’s proposed structure. As reflected below, appointment of an Executive Committee is warranted
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`because it will ensure that Co-Lead Counsel have access to the legal talent and substantial resources
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`this case will likely require, while promoting efficiency, economy, and cooperation, and reducing the
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`risk of fractious or redundant litigation efforts.
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`Finally, the lawyers who were initially proposed to sit on Group 1’s proposed Plaintiffs’
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`Steering Committee have each agreed to withdraw their applications in the interest of streamlining
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`Group 1’s proposal and achieving consensus. We propose that the Court afford Co-Lead Counsel the
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`authority to draw upon these firms for particular non-duplicative, discrete projects, should the case
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`warrant it, under the direction and oversight of Co-Lead Counsel.
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`2
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`To ensure efficiency and avoid duplication we would propose a timekeeping protocol that tracks
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`protocols entered in other multidistrict cases. It includes common-sense controls including: (1) periodic
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`submission of time and expenses (to be audited by a CPA or third party neutral in coordination with
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`Co-Lead Counsel); (2) detailed recording requirements, including sufficiently detailed descriptions of
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`work performed; (3) a prohibition on unauthorized, duplicative, or excessive time, or time
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`unnecessarily spent by a senior attorney; and (4) appropriate limitation on travel reimbursements. See,
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`e.g., Amended Case Management Order No. 5: Common Benefit Order—Timekeeping and Expenses
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`Protocol, In re Juul Labs, Inc., Mktg., Sales Practices, and Prods. Liab. Litig., No. 3:19-md-02931-
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`WHO (N.D. Cal.), ECF No. 381. Separately, as set forth in Exhibit A, and consistent with this Court’s
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`October 17 Order, our proposal assigns each executive committee member to a substantive committee
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`tailored to their experience, with specific Co-Lead Counsel assigned to oversee work performed by the
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`committees to avoid inefficiencies that may result from siloing.
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`In summary, our revised structure, which notably includes a role for each of the four firms from
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`Group 2, would consist of 13 firms. This is a manageable and appropriate structure for a case of this
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`magnitude and size. We hope that the Group 2 firms will agree to this proposal and that it will meet
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`with the Court’s approval, leading to a positive outcome for all involved.
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`II. BACKGROUND
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`On August 8, 2024, we, along with a separate group of direct iPhone purchasers (“DIP Group
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`2”), moved for appointment as interim Co-Lead Counsel. ECF Nos. 17, 19. Separately, two groups of
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`lawyers moved for appointment as interim class counsel on behalf of indirect iPhone purchasers (“IIP
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`Group”), and on behalf of direct purchasers of Apple watches (“DAWP Group”). ECF Nos. 18, 20. On
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`October 17, 2024, this Court appointed the IIP Group and DAWP as interim class counsel for their
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`respective classes, but encouraged DIP Groups 1 and 2 to meet and confer and propose a modified
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`leadership structure that is inclusive of attorneys from the respective groups. ECF No. 35. The Court
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`then set an in-person case management conference for October 30, 2024 before Magistrate Judge Leda
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`D. Wettre to seek to resolve the leadership issue without further briefing. ECF No. 36. Since the Court’s
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`October 17 Order, up to and through the October 30th case management conference, DIP Groups 1 and
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`2 have had many discussions to resolve their differences, but have been unable to reach consensus.
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`As to the proposals before the Court, DIP Group 1 notes that, from the moment the MDL was
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`formed through today, members of DIP Group 1 undertook the time-consuming and essential task of
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`attempting to achieve through private ordering a consensus-based leadership proposal that enjoyed the
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`support of all Plaintiffs’ Counsel. While DIP Group 1 believed we had reached an agreement consisting
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`of a five-firm co-lead structure with an Executive Committee and a Steering Committee that would be
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`presented to the Court on a consensus basis, ultimately one previous member of DIP Group 1 instead
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`formed DIP Group 2 and proceeded separately. DIP Group 1 notes that its proposal still enjoys the
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`support of nearly all Plaintiffs’ Counsel in the MDL, including the recently appointed IIP and DAWP
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`Groups.
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`III. ARGUMENT
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`Appointment of an Executive Committee in addition to Co-Lead and Liaison counsel is
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`warranted here. This case is massive in magnitude, centering on one of the world’s most popular
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`products, produced and sold by one of the world’s most well-capitalized companies. The case involves
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`highly specialized technological ecosystems, and raises specialized and difficult antitrust law issues. It
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`also includes four parallel private and government cases that need coordination. See MANUAL FOR
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`COMPLEX LITIGATION (FOURTH) § 10.21 (2004) (“Greater demands on counsel also arise from the
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`following: [1] the amounts of money or importance of issues at stake; and [2] the difficulties of having
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`to communicate and establish effective working relationships with numerous attorneys”). Managing
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`this case will require a deep bench with specialized experience relevant to the issues that can be flexibly
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`applied as the case progresses. As discussed below, proposed Co-Lead Counsel will ensure that work
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`is performed efficiently and economically by applying proven tools regularly used by lead counsel in
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`various MDLs to efficiently handle similarly complex cases—adoption of a time and expense protocol
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`with strict guidelines regarding compensable time and expenses, and formation of substantive
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`committees at the outset of the case to ensure each member of the leadership group is able to contribute
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`in areas tailored to their respective strengths.
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`A. Executive Committees Are Appropriate in Large MDLs
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`While the MANUAL FOR COMPLEX LITIGATION notes that committees are often needed when
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`group members’ interests and positions are “dissimilar,” the “most important” consideration is
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`“efficiency and economy” without jeopardizing fairness to the parties. MANUAL FOR COMPLEX
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`LITIGATION (FOURTH) § 10.221 (2004). As a result, in the most significant cases around the country,
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`which “demand a deep bench and substantial resources,” and which involve “many discrete topics that
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`may be parceled out,” committees serve the interests of ensuring that the class receives robust and
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`tailored representation with an eye toward efficiency and economy. In re Meta Pixel Healthcare Litig.,
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`2022 WL 18399978, at *3 (N.D. Cal. Dec. 21, 2022) (approving three firm executive committee).
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`Committees “provide support to interim co-counsel, maximize efficiency of the litigation, and supply
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`added diversity in leadership.” Owens v. MGM Resorts Int’l, 2024 WL 4544787 (D. Nev. Oct. 21,
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`2024); In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006) (describing
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`appointment of interim lead counsel as “essential for efficient case management”); MANUAL FOR
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`COMPLEX LITIGATION (FOURTH) § 10.22 (counsel so designated “assume a responsibility to the court
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`and an obligation to act fairly, efficiently, and economically in the interests of all parties and parties'
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`counsel.”); see also William B. Rubenstein, 3 Newberg & Rubenstein on Class Actions, § 10.9 (6th ed.
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`2024) (“In larger cases, particularly multidistrict litigations, a court may need a more elaborate
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`leadership structure for both the plaintiff and defendant side of the case. Cases may include lead
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`counsel, liaison counsel, trial counsel, steering committees, coordinating committees, management
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`committees, executive committees, etc.”).
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`For these reasons, courts routinely approve of committee structures in large antitrust cases and
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`MDLs, even those involving one or only a handful of defendants. See, e.g., In re Lipitor Antitrust Litig.,
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`2020 WL 5642175 (D.N.J. Sept. 22, 2020) (six member executive committee); In re Apple Inc. Device
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`Performance Litig., 2018 WL 11360203, at *1-2 (N.D. Cal. May 15, 2018) (“the Court is persuaded to
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`adopt the proposed [Executive Committee] structure based on counsels’ representations that it will be
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`in the best interests of the plaintiffs and provide the requisite cost savings”). For a case that is of
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`sufficient magnitude, a committee may be appropriate even if its group members have similar interests
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`so that the committee can flexibly respond to the needs of the case. See Meta Pixel Healthcare Litig.,
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`2022 WL 18399978, at *3 (appointing executive committee even though the “cases raise similar claims
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`and remain single-defendant matters”). In these instances, the burden falls on lead counsel to ensure
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`efficiency and “delegate appropriately and carefully monitor and approve time records to avoid
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`duplication of work product or unnecessary billing.” Id.
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`B. The Particular Demands of This Case Warrant an Executive Committee
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`Proposed Co-Lead Counsel for DIP Group 1 do not always or reflexively support appointment
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`of an executive committee. It depends on the needs of the case. In this case, there is a need. At least
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`three considerations have led proposed Co-Lead Counsel to this conclusion.
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`First, this is a historic case of truly massive proportions. It concerns the alleged monopolization
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`of a product that has come to define modern life—the smartphone—and one of the most well-resourced
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`defendants in the world. This case poses an existential threat to Apple, and Apple can be expected to
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`deploy an enormous war chest and an army of lawyers to defend these claims. While the proposed Co-
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`Leads for Group 1 are well-resourced firms, given the nature and stakes of this case, the proposed class
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`will benefit from an even deeper pool of resources that can be drawn from as needs arise in the litigation.
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`See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.21 (2004) (“[C]omplex litigation places greater
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`demands on counsel in their dual roles as advocates and officers of the court. The complexity of legal
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`and factual issues makes judges especially dependent on the assistance of counsel.”). The proposed
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`Executive Committee serves this purpose, ensuring that, whatever twists and turns the litigation takes,
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`the proposed class will have the resources, expertise, and person-power to match Apple. While the
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`resources of the Executive Committee are valuable to the proposed class, as addressed above, proposed
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`Co-Lead Counsel commits to use them judiciously and only as needed to maximize efficiencies.
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`Second, this case is multifaceted, involving four parallel actions, and involves a web of distinct
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`but interrelated alleged anticompetitive conduct. Plaintiffs, for example, assert that Apple imposed
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`several technological restraints that impede cross-platform competition, including restrictions on
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`“super apps,” cloud streaming games, messaging apps, smartwatches, and digital wallets. Mastering
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`the operation of these diverse restrictions and the underlying technologies is a significant undertaking
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`that underlies every other litigation effort in the case. And Plaintiffs start at a disadvantage given
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`Apple’s operating knowledge of its own technologies. That the Court convened a technology tutorial
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`before deciding Apple’s motion to dismiss the government action confirms deep technological
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`understanding that will be needed to prosecute Plaintiffs’ claims. Having an Executive Committee in
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`place helps ensure the requisite resources are available to the class.
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`Third, coordination with the government enforcers and the two other private plaintiff groups
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`participating in this MDL will also be required. The Court benefits from effective case coordination, as
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`do all parties. But as Co-Lead Counsel know from experience, effective case coordination—particularly
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`with the government—takes time and dedicated resources. An Executive Committee can assist with
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`these efforts to help ensure that this litigation is efficiently prosecuted.
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`C.
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`The Members of DIP Group 1 Will Have Specific Responsibilities
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`Each member of DIP Group 1 will have specific, discrete and non-duplicative responsibilities,
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`subject to the needs of the class and the case. Plaintiffs’ Co-Lead Counsel will be responsible for
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`managing the case and presenting positions on substantive and procedural issues to the Court in the
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`case. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.222 (2004). Trial counsel will oversee the
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`trial team. Id.; see also William B. Rubenstein, 3 Newberg & Rubenstein on Class Actions, § 10.9 (6th
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`ed. 2024) (“Trial Counsel will be specially appointed, particularly if Lead Counsel is busy coordinating
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`a series of simultaneous activities; in that circumstance, having an appointed counsel focused on trial
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`can facilitate efficient trial preparation.”). Liaison counsel will ensure the case proceeds following local
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`practice and serve as a vehicle for communication between the Court and all counsel. Id. As is common
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`in multidistrict litigations like this one, as is set out in Exhibit A, each member of the proposed
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`executive committee will be assigned to a distinct substantive committee, overseen by a member of
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`Proposed Co-Lead Counsel. The committees will be assigned to non-duplicative categories of work:
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`(1) law and briefing; (2) science and technology; (3) experts; (4) discovery (including discovery
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`coordination); (5) trial; and (6) settlement.1 See William B. Rubenstein, 3 Newberg & Rubenstein on
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`Class Actions , § 10.9 (6th ed. 2024) (“Similarly, committees may be appointed to oversee discovery
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`or other discrete projects”).
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`1 Separately, to ensure the next generation of MDL lawyers has an opportunity to develop, committee
`members will be required to include young, diverse lawyers who will be assigned non-duplicative and
`appropriate tasks under the supervision of seasoned lawyers with MDL experience, all subject to the
`proposed time and expense protocol.
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`Co-Lead Counsel will thus ensure the Executive Committee works efficiently and cost-
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`effectively. See Apple Device Performance Litig., 2018 WL 11360203, at *1 (approving Executive
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`Committee with similar framework).
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`Respectfully submitted,
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`By: James E. Cecchi______
`James E. Cecchi
`CARELLA BYRNE CECCHI
`BRODY & AGNELLO, PC
`5 Becker Farm Road
`Roseland, NJ 07068
`Tel: 973-994-1700
`Email: jcecchi@carellabyrne.com
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`
`Christopher A. Seeger
`SEEGER WEISS, LLP
`55 Challenger Road
`Ridgefield Park, NJ 07660
`Tel: 973-639-9100
`Email: cseeger@seegerweiss.com
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`Proposed Co-Lead Interim Counsel
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`Karin B. Swope
`COTCHETT, PITRE &
`MCCARTHY, LLP
`999 N. Northlake Way, Suite 215
`Seattle, WA 98103
`Tel: 206 802-1272
`Email: kswope@cpmlegal.com
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`Hae Sung Nam
`KAPLAN FOX
`& KILSHEIMER LLP
`800 Third Avenue
`38th Floor
`New York, NY 10022
`Tel: 212-687-1980
`Email: hnam@kaplanfox.com
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`9
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`DATED: November 8, 2024
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`
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`Steven W. Berman
`HAGENS BERMAN SOBOL SHAPIRO,
`LLP
`1301 Second Avenue
`Suite 2000
`Seattle, WA 98101
`Tel: 206-623-7292
`Email: steve@hbsslaw.com
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`Dena Sharp
`GIRARD SHARP LLP
`601 California Street, Suite 1400
`San Francisco, CA 94108
`Tel: 415-981-4800
`Email: dsharp@girardsharp.com
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`Linda P. Nussbaum
`NUSSBAUM LAW GROUP, PC
`1133 Avenue of the Americas,
`31st Floor
`New York, NY 10036
`Tel: 917-438-9189
`Email: lnussbaum@nussbaumpc.com
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`Joseph H. Meltzer
`KESSLER TOPAZ MELTZER
`& CHECK, LLP
`280 King of Prussia Road
`Radnor, PA 19087
`Tel: 610-667-7706
`Email: jmeltzer@ktmc.com
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`Peter A. Barile III
`LOWEY DANNENBERG, PC
`44 South Broadway, Suite 1100
`White Plains, NY 10601
`Tel: 914-997-0500
`Email: pbarile@lowey.com
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`Daniel J. Nordin
`GUSTAFSON GLUEK PLLC
`Canadian Pacific Plaza
`120 S. Sixth Street, Suite 2600
`Minneapolis, MN 55402
`Tel: 612-333-8844
`dnordin@gustafsongluek.com
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`Mark J. Dearman
`ROBBINS GELLER RUDMAN
`& DOWD LLP
`225 NE Mizner Boulevard, Suite 720
`Boca Raton, FL 33432
`Telephone: 561-750-3000
`Email: mdearman@rgrdlaw.com
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`Proposed Executive Committee
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