NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`NOV 13 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 18-16016
`
`
`D.C. No. 4:12-cv-05404-YGR
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`ZACK WARD; THOMAS BUCHAR, on
`behalf of themselves and all others similarly
`situated,
`
`
`
` v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Yvonne Gonzalez Rogers, District Judge, Presiding
`
`Argued and Submitted October 16, 2019
`Pasadena, California
`
`Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,** District
`Judge.
`
`
`Zack Ward and Thomas Buchar appeal the denial of class certification in
`
`this action against Apple Inc. under Section 2 of the Sherman Act, 15 U.S.C. § 2.
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The Honorable Eric N. Vitaliano, United States District Judge for the
`
`
`Eastern District of New York, sitting by designation.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`NOV 13 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 18-16016
`
`
`D.C. No. 4:12-cv-05404-YGR
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`ZACK WARD; THOMAS BUCHAR, on
`behalf of themselves and all others similarly
`situated,
`
`
`
` v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Yvonne Gonzalez Rogers, District Judge, Presiding
`
`Argued and Submitted October 16, 2019
`Pasadena, California
`
`Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,** District
`Judge.
`
`
`Zack Ward and Thomas Buchar appeal the denial of class certification in
`
`this action against Apple Inc. under Section 2 of the Sherman Act, 15 U.S.C. § 2.
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The Honorable Eric N. Vitaliano, United States District Judge for the
`
`
`Eastern District of New York, sitting by designation.
`
`
`
`
`
`
`
`
`
`They allege that Apple violated the antitrust laws by conspiring with AT&T
`
`Mobility LLC to monopolize the aftermarket for iPhone wireless service through
`
`certain undisclosed agreements, forcing iPhone purchasers to use AT&T even after
`
`the expiration of their initial two-year service contracts. We have jurisdiction under
`
`28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f), and we review the
`
`district court’s decision for abuse of discretion. Just Film, Inc. v. Buono, 847 F.3d
`
`1108, 1115 (9th Cir. 2017). We affirm.
`
`When confronted with a motion for class certification, the district court
`
`“must conduct a ‘rigorous analysis’” of whether the Rule 23 criteria are satisfied.
`
`Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (quoting Wal-Mart Stores, Inc.
`
`v. Dukes, 564 U.S. 338, 351 (2011)). That analysis requires looking beyond the
`
`pleadings: “A party seeking class certification must affirmatively demonstrate his
`
`compliance with the Rule—that is, he must be prepared to prove that there are in
`
`fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-
`
`Mart, 564 U.S. at 350.
`
`In an effort to demonstrate that antitrust injury could be assessed on a
`
`classwide basis, plaintiffs presented a declaration by an economist, Dr. Frederick
`
`Warren-Boulton, who set out two different “but-for” worlds corresponding to two
`
`different theories of the impact of Apple’s alleged anticompetitive conduct. Based
`
`on his review of “techniques standard among economists,” as well as data analyzed
`
`
`
`2
`
`
`
`
`
`by another expert in a separate litigation involving Apple, Dr. Warren-Boulton
`
`stated that he did “not expect to encounter any insurmountable difficulty in
`
`applying these techniques to form an estimate of the harm to consumers” in either
`
`of the but-for worlds.
`
`The district court did not abuse its discretion in determining that plaintiffs’
`
`submission was insufficient. Plaintiffs argue that the district court did not conduct
`
`the requisite “rigorous analysis,” but as the district court recognized, the court was
`
`“unable to fulfill its obligation” because plaintiffs gave the court little to analyze.
`
`Plaintiffs’ expert did not provide a workable method for classwide determination
`
`of the impact of the alleged antitrust violation. Instead, he merely asserted that he
`
`would be able to develop a model at some point in the future.
`
`Comcast demonstrates why that is not enough. In that case, the Supreme
`
`Court determined that certification was inappropriate because plaintiffs had offered
`
`a model that “failed to measure damages resulting from the particular antitrust
`
`injury on which [defendants’] liability in this action is premised.” 569 U.S. at 36.
`
`The plaintiffs here have done even less than the Comcast plaintiffs: Instead of
`
`providing an imperfect model, they have provided only a promise of a model to
`
`come.
`
`This case has been going on for seven years, and it is an outgrowth of
`
`litigation that began five years before that. Plaintiffs have had a long time to
`
`
`
`3
`
`
`
`
`
`develop a workable method for classwide determination of antitrust injury. The
`
`district court did not abuse its discretion in declining to certify a class based on
`
`plaintiffs’ assurance that they would do so later.
`
`AFFIRMED.
`
`
`
`4
`
`
`
`
`
`Ward v. Apple Inc., 18-16016
`
`NGUYEN, Circuit Judge, dissenting:
`
`FILED
`
`
`NOV 13 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
` As the majority acknowledges, the district court failed to conduct the
`
`
`
`required “rigorous analysis” of whether Rule 23 was satisfied. See Comcast Corp.
`
`v. Behrend, 569 U.S. 27, 33–35 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes,
`
`564 U.S. 338, 351 (2011)). The district court stated that it was “unable to fulfill its
`
`obligation” because “Dr. Warren-Boulton’s declaration [wa]s essentially lacking
`
`any data-driven analysis” and plaintiffs did not provide “properly analyzed,
`
`reliable evidence that a common method of proof exists to prove impact on a class-
`
`wide basis.” (emphasis in original). Contrary to the district court’s conclusion,
`
`plaintiffs presented evidence in support of their motion. The district court is free to
`
`reject such evidence as wholly insufficient, but it is not free to ignore it.
`
`
`
`The district court should have considered whether plaintiffs’ evidence—
`
`either in Dr. Warren-Boulton’s declaration or in Dr. Wilkie’s expert report from a
`
`related case, which plaintiffs attached to their motion—was sufficient to show that
`
`a common method of proof exists to prove classwide antitrust impact. In addition,
`
`the district court summarized, but did not analyze, the but-for worlds posited by
`
`Dr. Warren-Boulton. It should have considered, as required by Comcast, whether
`
`the antitrust impact identified by the but-for worlds is consistent with plaintiffs’
`
`aftermarket theory. Comcast, 569 U.S. at 35. Further, the district court should
`
`
`
`
`
`
`
`
`
`have analyzed both the criticisms of Dr. Warren-Boulton’s declaration raised by
`
`Apple’s expert—for example, that the benchmark approach is incorrect and
`
`unreliable—and Dr. Warren-Boulton’s rebuttal.
`
`
`
`Plaintiffs ultimately may not have met their burden to satisfy Rule 23, but
`
`the district court did not conduct the required “rigorous analysis” to find out. I
`
`would therefore reverse and remand for the district court to conduct the required
`
`analysis in the first instance.
`
`
`
`2
`
`
`
`
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