Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 1 of 13
`
`Honorable Kymberly K. Evanson
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`STEVEN FLOYD, et al., individually and on
`behalf of all other similarly situated,
`Plaintiff,
`
`v.
`AMAZON.COM INC. and APPLE INC.,
`Defendants.
`
`Case No. 2:22-cv-01599 KKE
`DEFENDANT APPLE INC.’S
`MOTION TO COMPEL
`Note On Motion Calendar: June 17, 2024
`
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 2 of 13
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`TABLE OF CONTENTS
`
`Page
`INTRODUCTION .................................................................................................................................1
`FACTUAL BACKGROUND ................................................................................................................1
`ARGUMENT .........................................................................................................................................3
`
`I.
`
`Floyd Should Be Compelled to Respond to Outstanding Discovery and Appear at
`His Properly Noticed Deposition ...............................................................................................3
`Floyd Should Be Required to Produce Documents and Information Relevant to
`Household Purchasing Practices ................................................................................................6
`CONCLUSION ......................................................................................................................................9
`
`II.
`
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`i
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 3 of 13
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. L.P.,
`247 F.R.D. 156 (C.D. Cal. 2007) ...................................................................................................... 8
`
`Benanav v. Healthy Paws Pet Ins. LLC,
`No. 2:20-CV-00421-LK, 2023 WL 5227702 (W.D. Wash. Aug. 15, 2023) .................................... 5
`
`Brantley v. NBC Universal, Inc.,
`675 F.3d 1192 (9th Cir. 2012) .......................................................................................................... 8
`
`Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co.,
` No. 09-CV-02757-WYD-KMT, 2011 WL 5865059 (D. Colo. Nov. 22, 2011) .............................. 4
`
`Coronavirus Rep. v. Apple, Inc.,
`85 F.4th 948 (9th Cir. 2023) ............................................................................................................. 7
`
`Dysthe v. Basic Rsch., L.L.C.,
`273 F.R.D. 625 (C.D. Cal. 2011) .................................................................................................. 4, 6
`
`Fraley v. Facebook Inc.,
`No. C 11-1726 LHK (PSG), 2012 WL 555071 (N.D. Cal. Feb. 21, 2012) .............................. 3, 4, 6
`
`Gallegos v. Atria Mgmt. Co.,
`No. ED-CV-16-888-JBG, 2016 WL 11824850 (C.D. Cal. Nov. 14, 2016) ............................. 3, 4, 5
`
`Gen. Tel. Co. of Sw. v. Falcon,
`457 U.S. 147 (1982) .......................................................................................................................... 7
`
`Haghayeghi v. Guess?, Inc.,
` No. 14-CV-20 JAH (NLS), 2016 WL 9526465 (S.D. Cal. Mar. 21, 2016) ..................................... 7
`
`Hogan v. Amazon.com, Inc.,
`No. 2:21-CV-00996-JHC, 2024 WL 1091671 (W.D. Wash. Mar. 13, 2024)................................... 7
`
`N. Brevard Cnty. Hosp. Dist. v. C.R. Bard, Inc.,
`No. 2:22-CV-00144-RJS-JCB, 2023 WL 8936389 (D. Utah Dec. 27, 2023) .................................. 8
`
`Roz v. Nestle Waters N. Am. Inc.,
`No. CV-16-4418 SVW, 2017 WL 6940512 (C.D. Cal. June 21, 2017) ....................................... 4, 5
`
`Sherman v. Yahoo! Inc.,
`No. 13-cv-0041-GPC-WVG, 2015 WL 473270 (S.D. Cal. Feb. 5, 2015) ........................................ 5
`
`Spinelli v. Cap. One Bank,
`265 F.R.D. 598 (M.D. Fla. 2009)...................................................................................................... 6
`
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ii
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 4 of 13
`
`Stearns v. Ticketmaster Corp.,
`655 F.3d 1013 (9th Cir. 2011) .......................................................................................................... 7
`
`Thurman Indus., Inc. v. Pay ‘N Pak Stores, Inc.,
`875 F.2d 1369 (9th Cir. 1989) .......................................................................................................... 7
`
`United States v. Abbott Lab’ys,
`No. 20-cv-286-W (MSB), 2023 WL 6612471 (S.D. Cal. Oct. 10, 2023) ......................................... 8
`
`Vinole v. Countrywide Home Loans, Inc.,
`571 F.3d 935 (9th Cir. 2009) ............................................................................................................ 3
`
`In re Vitamins Antitrust Litig.,
`198 F.R.D. 296 (D.D.C. 2000) .......................................................................................................... 5
`
`In re Wellbutrin XL Antitrust Litig.,
`268 F.R.D. 539 (E.D. Pa. 2010) ........................................................................................................ 5
`
`Other Authorities
`
`Fed. R. Civ. P. 1 ...................................................................................................................................... 6
`
`Fed. R. Civ. P. 26(b)(1)........................................................................................................................... 3
`
`Fed. R. Civ. P. 37 .................................................................................................................................... 6
`
`Bryan Koenig, New IPad Buyers And Complaint OK’d In Amazon-Apple Suit, Law360
`(May 7, 2024, 9:11 PM EDT), https://www.law360.com/articles/1834216/new-ipad-
`buyers-and-complaint-ok-d-in-amazon-apple-suit ........................................................................... 5
`
`Washington Rule of Professional Conduct 1.2(f) ................................................................................... 4
`
`W.D. Wash. Local Rule 37 ..................................................................................................................... 3
`
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`iii
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 5 of 13
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`INTRODUCTION
`The parties’ March 26, 2024 Joint Statement of Discovery Disputes addressed Plaintiff Steven
`Floyd’s refusal to provide information relevant to his household’s tablet and smartphone purchasing
`practices and his complete failure to respond to interrogatories. See Dkt. 90. The Court ordered the
`parties to confer regarding a briefing schedule and whether the Joint Statement should be re-briefed in
`light of the Court’s order granting leave to amend. See Dkt. 98. In short, this dispute remains ripe, as
`does one regarding Floyd’s refusal to testify in a deposition. Subsequent actions (and inactions) by Floyd
`and his counsel confirm this Court’s intervention is required. Floyd remains a named plaintiff in this
`action: He filed a Second Amended Complaint last week. See Dkt. 99. Yet, he refuses to participate in
`discovery. As Floyd’s counsel have correctly recognized, “discovery needs to be a two-way street.”
`Dkt. 92 at 6. Indeed, Floyd’s counsel do not even dispute that Apple (and Amazon) are entitled to take
`discovery of Floyd; they report only that he refuses to make himself available. The Court should now
`compel Floyd to meet his basic obligations as a named plaintiff by compelling him to respond to the
`already-propounded discovery and sit for his noticed deposition on May 28 (or by a date certain).1
`FACTUAL BACKGROUND
`Plaintiff Steven Floyd filed his first complaint as the sole plaintiff and proposed class
`representative on November 9, 2022. Dkt. 1. He subsequently filed a First Amended Complaint on
`February 27, 2023, again as the sole plaintiff and proposed class representative. Dkt. 37. The explicit
`purpose of this amendment was to revise the relevant market allegations in response to Defendants’ prior
`motions to dismiss. Id. ¶ 15. That First Amended Complaint survived a motion to dismiss solely under
`a rule of reason theory based upon Floyd’s allegations that the distribution agreement between Apple
`and Amazon harmed competition for the purchase of new iPhones and new iPads in a highly
`gerrymandered alleged market limited to “online marketplaces.” See, e.g., Dkt. 61 at 7–10 (recounting
`various allegations, including that of Floyd’s alleged purchase).
`Defendants answered Floyd’s First Amended Complaint (Dkts. 64, 65), and proceeded through
`lengthy discovery negotiations throughout 2023 and early 2024. The burden of discovery has fallen
`
`1 Defendant Amazon concurs that Floyd, as a current plaintiff, should be compelled to respond to the pending discovery
`requests and deposition notice.
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`1
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 6 of 13
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`disproportionately on Defendants. Apple has invested significant resources to substantively respond to
`interrogatory requests and to identify and collect responsive sources of information. In all, Apple will
`review more than a half-million documents from several custodial and central file sources and produce
`large quantities of data. See Dkts. 86, 90.
`Defendants served Floyd with requests for production, to which his counsel served objections in
`October 2023. See Dkt. 90, Ex. C. Floyd has not produced a single document. On February 8, 2024,
`Apple served Floyd with interrogatories, seeking information about Floyd’s purchases and use of
`smartphones and tablets. See Dkt. 90, Ex. A. Days later, on February 13, Floyd’s counsel advised
`Defendants that Floyd “has become difficult to reach,” but “has not withdrawn as a class
`representative[.]” See Declaration of Brian Liegel, Ex. 1. Counsel for Defendants requested Floyd’s
`availability for a deposition. Id. In response, Floyd’s counsel confirmed that Floyd “has not informed
`[them] of any intention to withdraw as a class representative,” but refused to provide deposition dates
`until they “hear from Mr. Floyd.” Id. Defendants made clear they would notice his deposition regardless
`of whether Floyd responded to his counsel. Id.
`On March 11, Floyd’s counsel served “Objections and Responses” to Apple’s interrogatories.
`See Dkt. 90, Ex. B. The Objections and Responses lodge only boilerplate and conclusory objections.
`See id. They provide no actual information from Floyd about basic, relevant issues such as his
`smartphone and tablet purchases, who uses the iPad referenced in the complaint, and what retailers he
`considered when making that purchase. See id. There is no indication that these Objections and
`Responses were made with Floyd’s input or participation. Indeed, Floyd’s counsel has confirmed that
`they had no contact with Floyd during this period. See Dkt. 81.
`On May 7, after this Court granted leave to amend, Floyd filed the Second Amended Complaint,
`now joined by two new named plaintiffs. See Dkt. 99. This filing confirms Floyd’s continued
`participation in this litigation as a named plaintiff. Having now filed the Second Amended Complaint,
`Floyd’s continued refusal to respond to discovery requests about his allegations is untenable.
`On May 8 (as previewed in February), Defendants served a notice of Floyd’s deposition upon his
`
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`2
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 7 of 13
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`counsel for May 28. See Liegel Decl., Ex. 2.2 His counsel responded only agreeing to produce him for
`deposition “[i]f Mr. Floyd reengages.” See id., Ex. 4. In short, notwithstanding properly served, timely,
`and relevant discovery requests, Floyd, along with his counsel, have repeatedly failed to make
`themselves available for deposition, or provide documents or interrogatory responses.3
`Because Defendants are entitled to discovery from Floyd—who has now filed three successive
`complaints against them yet refuses to provide any substantive information to support his allegations—
`Apple files this Motion to Compel.
`
`ARGUMENT
`A party may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s
`claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). In class action
`cases, “often the pleadings alone will not resolve the question of class certification and that some
`discovery will be warranted.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir.
`2009). Accordingly, “[d]iscovery is likely warranted where it will help resolve factual issues necessary
`for the determination of whether the action may be maintained as a class action[.]” Gallegos v. Atria
`Mgmt. Co., No. ED-CV-16-888-JBG (SPx), 2016 WL 11824850, at *4 (C.D. Cal. Nov. 14, 2016); see
`also Fraley v. Facebook Inc., No. C 11-1726 LHK (PSG), 2012 WL 555071, at *3 (N.D. Cal. Feb. 21,
`2012) (class representatives are obligated to “participate in discovery”).
`I.
`Floyd Should Be Compelled to Respond to Outstanding Discovery and Appear at His
`Properly Noticed Deposition
`
`Floyd’s counsel have refused to produce Floyd for his noticed deposition until he “reengages”
`with counsel, and they have declined to provide documents or substantive interrogatory responses given
`“Floyd’s non-responsiveness.” See Liegel Decl., Ex. 4; Dkt. 90 at 6. That is not a legitimate ground for
`refusing to comply with a properly served deposition notice, document request, or interrogatory in
`
`2 An amended notice was served on May 15, 2024 by counsel for Apple. See Liegel Decl., Ex. 3. The notice is substantively
`identical to that filed on May 10, but signed by all Defendants’ counsel.
`3 Pursuant to Local Rule 37, Apple certifies that it has engaged in good faith efforts to resolve the issues addressed herein,
`including through e-mail correspondence and videoconferences, but have been unable to reach a resolution. Most recently,
`on May 10, counsel for Apple (Brian Liegel) and counsel for Amazon (Ben Mundel) discussed the outstanding deposition
`request to Floyd with Plaintiffs’ counsel (Ben Harrington and Ben Siegel). Plaintiffs’ counsel repeated that they would
`provide discovery only if Floyd “reengages,” necessitating this Motion to Compel. The other issues have also been
`thoroughly discussed, including in the parties’ original Joint Statement. See Dkt. 90.
`3
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`APPLE INC.’S MOTION TO COMPEL
`401 Union Street, Suite 3300
`CASE NO. 2:22-CV-01599 KKE
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 8 of 13
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`federal court. Floyd has remained the original named plaintiff for 18 months and through two
`amendments of the complaint. Plaintiffs’ counsel must have had authority from Floyd to file the Second
`Amended Complaint last week (see Wash. R.P.C. 1.2(f));4 they cannot simultaneously refuse to produce
`the discovery that Defendants have long been seeking from Floyd.
`Floyd’s decision to file a lawsuit as a named plaintiff comes with the basic obligation to
`“participate in discovery and provide testimony.” Fraley, 2012 WL 555071, at *3. Here, that obligation
`means Floyd must produce documents in response to Defendants’ requests for production, respond to
`interrogatories, and testify at his deposition noticed for May 28. Floyd cannot avoid these obligations
`by ignoring his counsel, even if he intends to withdraw. See Gallegos, 2016 WL 11824850, at *9 (“A
`named plaintiff simply cannot avoid the obligation to sit for a deposition merely by filing a request to
`withdraw.”); Dysthe v. Basic Rsch., L.L.C., 273 F.R.D. 625, 628–29 (C.D. Cal. 2011) (“Hall is currently
`a named plaintiff and has not yet been dismissed. … Defendants are certainly entitled to take the
`deposition of a party.”) (emphasis omitted). And his counsel cannot shield Floyd from participation in
`discovery by merely asserting that he is hard to reach. See Roz v. Nestle Waters N. Am. Inc., No. CV-
`16-4418 SVW (JEMx), 2017 WL 6940512, at *1 (C.D. Cal. June 21, 2017) (if a plaintiff “fails to
`cooperate in arranging for his deposition, he can be held in contempt”).
`Courts routinely compel named plaintiffs to participate in discovery and provide depositions in
`these circumstances. For example, in Gallegos, the court compelled the original named plaintiff to be
`deposed and respond to interrogatories, notwithstanding an intent to withdraw, because “the plaintiff's
`claims formed the basis of the class action,” they had “been a named plaintiff from the start,” and they
`were “the only named plaintiff until a month ago.” See 2016 WL 11824850, at *5, *9. Likewise, in
`Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., the court compelled the deposition of
`a named plaintiff who wished to withdraw where his allegations were the basis of two substantive
`motions, his testimony was likely to be relevant to class certification issues, and he “remain[ed] a named
`plaintiff” at the time of the requests. No. 09-CV-02757-WYD-KMT, 2011 WL 5865059, at *2 (D. Colo.
`
`4 Washington Rule of Professional Conduct 1.2(f) states as follows: “A lawyer shall not purport to act as a lawyer for any
`person or organization if the lawyer knows or reasonably should know that the lawyer is acting without the authority of that
`person or organization, unless the lawyer is authorized or required to so act by law or a court order.”
`4
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`APPLE INC.’S MOTION TO COMPEL
`401 Union Street, Suite 3300
`CASE NO. 2:22-CV-01599 KKE
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 9 of 13
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`Nov. 22, 2011); see also Fraley, 2012 WL 555071, at *33 (denying plaintiff’s motion for protective
`order and holding the named plaintiff who wished to withdraw was obligated to provide testimony).
`This Court should not allow the original named plaintiff to simply “‘walk away’ [from] his
`discovery obligations when he has relevant information and chose to litigate this case” as the sole named
`plaintiff for 18 months. See Benanav v. Healthy Paws Pet Ins. LLC, No. 2:20-CV-00421-LK, 2023 WL
`5227702, at *10 (W.D. Wash. Aug. 15, 2023) (ordering deposition and interrogatory response as
`condition of withdrawal); see also Roz, 2017 WL 6940512, at *1. Floyd remains a current plaintiff, and
`cannot avoid a deposition by refusing to respond to his counsel’s messages. See Gallegos, 2016 WL
`11824850, at *9 (“A current plaintiff is not excused from being deposed.”). As noted, Floyd has not
`moved to withdraw—and the recent filing of the Second Amended Complaint should foreclose such a
`tactic.5 Even if Plaintiffs’ counsel were to attempt such a motion, however, it would not permit Floyd
`to evade his discovery obligations. As this Court recently noted, it is appropriate to condition any
`dismissal on the named plaintiff sitting for deposition and responding to interrogatories. See Benanav,
`2023 WL 5227702, at *9–*10.6 As previewed, Apple (and Amazon) should not be prejudiced by Floyd’s
`counsel trying to use him as a vehicle to toll the limitations period until other (presumably better in their
`view) named plaintiffs were identified. See Dkt. 86.
`When pressed for discovery of Floyd, Plaintiffs’ counsel have instead pointed to discovery that
`Defendants will receive from the new plaintiffs. See Dkt. 90 (offering the “new representatives”
`interrogatory responses, but refusing to offer Floyd’s). But that does not excuse Floyd from meeting his
`discovery obligations. Floyd was the “sole named plaintiff for most of this action and thus has a ‘unique
`status in this litigation’ that justifies [his] deposition.” Gallegos, 2016 WL 11824850, at *10.
`
`5 Oddly, on the same day that the Second Amended Complaint was filed, Plaintiffs’ lead counsel was publicly quoted as
`saying that “the existing class representative [Floyd] no longer wishes to serve.” Bryan Koenig, New IPad Buyers And
`Suit,
`Law360
`(May
`7,
`2024,
`9:11
`PM
`EDT),
`Complaint
`OK’d
`In
`Amazon-Apple
`https://www.law360.com/articles/1834216/new-ipad-buyers-and-complaint-ok-d-in-amazon-apple-suit. This is contrary to
`the filing of the Second Amended Complaint on Floyd’s behalf.
`6 See also, e.g., Sherman v. Yahoo! Inc., No. 13-cv-0041-GPC-WVG, 2015 WL 473270, at *6–7 (S.D. Cal. Feb. 5, 2015)
`(“Therefore, the Court concludes that Sherman’s withdrawal should be conditioned on his deposition.”); In re Wellbutrin XL
`Antitrust Litig., 268 F.R.D. 539, 543–47 (E.D. Pa. 2010) (conditioning voluntary dismissal of class representatives without
`prejudice on the production of ordered discovery); In re Vitamins Antitrust Litig., 198 F.R.D. 296, 303–06 (D.D.C. 2000)
`(conditioning named plaintiffs withdrawal on their responding to all previously noticed document requests and
`interrogatories).
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`5
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 10 of 13
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`Additionally, as the Court knows, Defendants have discovered that Floyd’s purchasing patterns diverge
`materially from the allegations in the complaint (including the most recent amendment). See Dkt. 86.
`“His testimony regarding his experience … is therefore highly likely to be relevant to class certification
`issues … even if he no longer wishes to be burdened with this litigation.” Dysthe, 273 F.R.D. at 629.
`Indeed, “[i]f anything, the fact that [Floyd] may soon be dismissed from the lawsuit makes even more
`relevant [Defendants’] discovery” into Floyd’s allegations. Fraley, 2012 WL 555071, at *3. Moreover,
`Floyd’s apparent disinterest in this lawsuit is itself relevant to class certification. See, e.g., Spinelli v.
`Cap. One Bank, 265 F.R.D. 598, 614 (M.D. Fla. 2009) (finding class representative inadequate based,
`in part, on “[h]er lack of interest in the lawsuit”). Beyond this, Defendants are also entitled to discover
`Floyd’s first knowledge of the Global Tenets Agreement for their statute of limitations defenses. See
`Dkt. 86 at 7 n.3.
`At bottom, Floyd was the original plaintiff in this case, confirmed his status as such just last week
`by filing the Second Amended Complaint, and has information highly relevant to this case. A bait-and-
`switch strategy to hide the original named plaintiff from his discovery obligations would run afoul of the
`basic requirement for this Court to ensure a “just, speedy, and inexpensive determination of [this]
`action[.]” Fed. R. Civ. P. 1. Apple therefore requests the Court compel responses and a deposition on
`May 28 (or by a date certain).7
`II.
`Floyd Should Be Required to Produce Documents and Information Relevant to Household
`Purchasing Practices
`
`Household purchasing practices are squarely relevant to the issues in this case. Floyd has made
`allegations regarding household purchasing behavior. Second Am. Compl. ¶ 101, 119. Apple’s records
`indicate that the only purchase Floyd alleges he made that could possibly give him standing to sue Apple
`and Amazon was an iPad purchased on Amazon for a family member. See Dkt. 90. Accordingly,
`Defendants have served targeted requests to obtain information about purchases and use of smartphones
`and tablets by all members of Floyd’s household. Specifically, Defendants’ Request for Production No.
`5 asks Floyd to provide documents sufficient to show basic information about each smartphone or tablet
`
`7 If Floyd continues to refuse to respond or sit for deposition, the Court should consider appropriate sanctions under Fed. R.
`Civ. P. 37.
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
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`6
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 11 of 13
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`purchased or obtained by Floyd or any member of his household. See Dkt. 90, Ex. C. Apple’s
`Interrogatories No. 4 and 6 ask for descriptions regarding the purchase of smartphones and tablets, as
`well as information regarding cellular phone carriers. See Dkt. 90, Ex. A. These household purchases
`are highly relevant to market definition, antitrust injury, and class certification.
`First, household purchases are relevant to the “threshold step” of accurately defining the relevant
`market—that is, “the field in which meaningful competition is said to exist.” Coronavirus Rep. v. Apple,
`Inc., 85 F.4th 948, 955 (9th Cir. 2023). To fulfill that obligation, Plaintiffs must define a market to
`include “‘the group or groups of sellers or producers who have actual or potential ability to deprive each
`other of significant levels of business.’” Hogan v. Amazon.com, Inc., No. 2:21-CV-00996-JHC, 2024
`WL 1091671, at *6 (W.D. Wash. Mar. 13, 2024) (quoting Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1120
`(9th Cir. 2018)). Here, Floyd’s proposed market definition is highly gerrymandered and makes no
`common or economic sense. It ignores the real world by excluding competition from many other
`retailers, including brick-and-mortar stores (e.g., Best Buy), cellular carriers (e.g., Verizon), and both
`the online and the brick-and-mortar operations of all retailers that are not (in Floyd’s words)
`“marketplaces” or “one-stop-shops.” Second Am. Compl. ¶¶ 77, 136. Limited discovery into household
`purchasing decisions will be one way for this Court to assess the disputed market definition. Where a
`plaintiff alleges an online marketplaces market defined by their “broad selection” and “one-stop
`shopping,” evidence as to customers’ “purchasing proclivity” is highly relevant. Thurman Indus., Inc.
`v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1374, 1376–77 (9th Cir. 1989). For example, if Floyd’s own
`household was not purchasing exclusively from online marketplaces or online one stop shops, it would
`demonstrate that the market is not well defined.8
`Moreover, the Second Amended Complaint (like its predecessors) makes several assertions
`regarding “households” in order to support its relevant market allegations. Plaintiffs assert that “82% of
`
`8 As Defendants have also detailed in the opposition to Plaintiffs’ motion to amend (Dkt. 86), purchasing history may also
`show that Floyd is not a typical plaintiff because his household purchasing behavior differs from class members in material
`respects. See Haghayeghi v. Guess?, Inc., No. 14-CV-20 JAH (NLS), 2016 WL 9526465, at *3–4 (S.D. Cal. Mar. 21, 2016)
`(noting that where plaintiff’s sister was associated with a phone number on defendant’s mailing list, household discovery
`“may be relevant to the determination of whether Plaintiff is atypical of the class.”); Stearns v. Ticketmaster Corp., 655 F.3d
`1013, 1019–20 (9th Cir. 2011) (actions of family members are relevant to typicality of class representative); see also Gen.
`Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (“[A] class representative must be part of the class and possess the same
`interest and suffer the same injury as the class members”) (citation omitted).
`7
`APPLE INC.’S MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
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`1 2 3 4 5 6 7 8 9
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`Case 2:22-cv-01599-KKE Document 104 Filed 05/17/24 Page 12 of 13
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`U.S. households have a Prime account” and that such households are “lock[ed]” into purchasing from
`Amazon. Second Am. Compl. ¶ 101 (emphasis added); see also id. ¶ 119 (“American households that
`have Prime memberships are effectively locked into Amazon for their online shopping.” (emphasis
`added)). Plaintiffs have also made the issue of household “lock in” relevant by their own allegations;
`Defendants are permitted to test the Second Amended Complaint’s allegations through discovery. See
`United States v. Abbott Lab’ys, No. 20-cv-286-W (MSB), 2023 WL 6612471, at *3 (S.D. Cal. Oct. 10,
`2023), aff’d, 2024 WL 304082 (S.D. Cal. Jan. 26, 2024) (“The allegations of the complaint logically
`shape the scope of discovery.”) (quotation omitted).
`Last, household purchasing behavior also goes directly to the antitrust injury element of every
`private Sherman Act claim. To meet this fundamental requirement, Floyd must show that he was
`“harmed by [Defendants’] anti-competitive contract, combination, or conspiracy” and that “this harm
`flowed from an ‘anticompetitive aspect of the practice under scrutiny.’” Brantley v. NBC Universal,
`Inc., 675 F.3d 1192, 1197 (9th Cir. 2012) (citation omitted). Here, Floyd claims that he suffered antitrust
`injury because the Global Tenets Agreement reduced the number of “third-party Apple resellers from
`the Amazon Marketplace.” Second Am. Compl. ¶ 158. He claims that he suffered that reduced choice
`because he must purchase within the alleged “online marketplaces” relevant market due to a “lock in”
`effect. Id. ¶¶ 36, 119. Thus, discovery is warranted to show that Floyd’s household has numerous,
`viable alternatives from which to purchase smartphones and tablets, such as Apple.com, the Apple Store,
`or cellular carriers (all entities outside the relevant market). The existence of these alternative channels
`used by household members would show that Floyd’s choice is not unlawfully reduced by the Global
`Tenets Agreement and, accordingly, he has suffered no antitrust injury. Without antitrust injury, Floyd’s
`claim fails and he certainly cannot be an adequate or typical class representative. See N. Brevard Cnty.
`Hosp. Dist. v. C.R. Bard, Inc., No. 2:22-CV-00144-RJS-JCB, 2023 WL 8936389, at *6 (D. Utah Dec.
`27, 2023) (plaintiff who lacked antitrust injury because of non-price preferences was subject to unique
`defense and not typical); Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. L.P., 247 F.R.D.
`156, 171 (C.D. Cal. 2007