Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 1 of 18
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`The Honorable Kymberly K. Evanson
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`STEVEN FLOYD, individually and on behalf
`of all others similarly situated,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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` Case No. 2:22-cv-01599-KKE
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`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE
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`NOTE ON MOTION CALENDAR:
`March 15, 2024
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`v.
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`AMAZON.COM, INC., a Delaware
`corporation, and APPLE INC., a California
`corporation,
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`Defendants.
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`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE
`Case No. 2:22-cv-01599-KKE
`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 2 of 18
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`I. 
`
`II. 
`
`TABLE OF CONTENTS
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`Page
`PRELIMINARY STATEMENT .........................................................................................1 
`
`BACKGROUND .................................................................................................................2 
`
`III. 
`
`ARGUMENT .......................................................................................................................5 
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`A. 
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`B. 
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`C. 
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`Leave to Amend Is Granted with “Extreme Liberality” in the Ninth
`Circuit. .....................................................................................................................5 
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`Courts Routinely Grant Leave to Add and Substitute Class
`Representatives Prior to Class Certification. ...........................................................5 
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`All Pertinent Factors Support Leave to Amend. ......................................................8 
`
`1. 
`
`2. 
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`3. 
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`4. 
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`No Prejudice.................................................................................................8 
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`Prior Amendments .......................................................................................8 
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`No Delay or Bad Faith. ................................................................................9 
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`No Futility. .................................................................................................10 
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`D. 
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`The New Representatives Can Intervene to the Extent Intervention
`is Required. ............................................................................................................10 
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`IV. 
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`CONCLUSION ..................................................................................................................12 
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`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE- i
`Case No. 2:22-cv-01599-KKE
`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 3 of 18
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`
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`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Aguilar v. Boulder Brands, Inc.,
`2014 WL 4352169 (S.D. Cal. Sept. 2, 2014) .........................................................................6, 8
`
`Beckman Indus., Inc. v. Int’l Ins. Co.,
`966 F.2d 470 (9th Cir. 1992) ...................................................................................................12
`
`Castillo v. United Rentals (N. Am.), Inc.,
`2018 WL 3429936 (W.D. Wash. July 16, 2018) ...................................................................6, 7
`
`Cedano v. Thrifty Payless, Inc.,
`2011 WL 5117930 (D. Or. Oct. 25, 2011) .................................................................................6
`
`Chen v. GEO Group, Inc.,
`2018 WL 2949449 (W.D. Wash. June 13, 2018).......................................................................6
`
`Chevron Env’t Mgmt. Co. v. Env’t Prot. Corp.,
`2022 WL 10966098 (9th Cir. Oct. 19, 2022) ...........................................................................10
`
`DCD Programs, Ltd. v. Leighton,
`833 F.2d 183 (9th Cir. 1987) .....................................................................................................9
`
`Desertrain v. City of L.A.,
`754 F.3d 1147 (9th Cir. 2014) ...............................................................................................1, 5
`
`Disimone v. Browner,
`121 F.3d 1262 (9th Cir. 1997) .................................................................................................11
`
`Eminence Cap., L.L.C. v. Aspeon, Inc.,
`316 F.3d 1048 (9th Cir. 2003) ...............................................................................................5, 8
`
`Fife v. Sci. Games Corp.,
`2020 WL 4933959 (W.D. Wash. Aug. 24, 2020) ............................................................6, 7, 10
`
`Gaddy v. Long & Foster Cos.,
`2023 WL 1926654 (D.N.J. Feb. 10, 2023) ................................................................................6
`
`Griggs v. Pace Am. Grp., Inc.,
`170 F.3d 877 (9th Cir. 1999) .....................................................................................................6
`
`Intellicheck Mobilisa, Inc. v. Honeywell Int’l Inc.,
`2017 WL 3772708 (W.D. Wash. Aug. 30, 2017) ......................................................................9
`
`Jacobs v. Wal-Mart Stores, Inc.,
`2018 WL 6304759 (W.D. Wash. Dec. 3, 2018) ........................................................................5
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`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE- ii
`Case No. 2:22-cv-01599-KKE
`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 4 of 18
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`Jalili v. Am. Fam. Mut. Ins. Co.,
`2016 WL 3566252 (W.D. Mo. June 27, 2016) ..........................................................................6
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`Kirby v. McMenamins Inc.,
`2023 WL 4623988 (W.D. Wash. July 19, 2023) ...........................................................5, 6, 7, 8
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`Mills v. Gen. Dynamics Info. Tech., Inc.,
`2018 WL 6321588 (M.D. Fla. Dec. 3, 2018) .............................................................................6
`
`Oppenheimer v. eXp Realty LLC,
`2023 WL 1805568 (W.D. Wash. Jan. 17, 2023)........................................................................9
`
`Philips N. Am., LLC v. Summit Imaging Inc.,
`2020 WL 7641200 (W.D. Wash. Dec. 23, 2020) ......................................................................9
`
`Phillips v. Ford Motor Co.,
`435 F.3d 785 (7th Cir. 2006) .....................................................................................................5
`
`Sherman v. Griepentrog,
`775 F. Supp. 1383 (D. Nev. 1991) .......................................................................................7, 10
`
`Smith v. Marsh,
`194 F.3d 1045 (9th Cir. 1999) .................................................................................................10
`
`Staton v. Boeing Co.,
`327 F.3d 938 (9th Cir. 2003) .....................................................................................................9
`
`Sw. Ctr. for Biological Diversity v. Berg,
`268 F.3d 810 (9th Cir. 2001) ...................................................................................................11
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`Sweaney v. Ada Cnty., Idaho,
`119 F.3d 1385 (9th Cir. 1997) .................................................................................................10
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`United States v. Alisal Water Corp.,
`370 F.3d 915 (9th Cir. 2004) ...................................................................................................10
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`Venegas v. Skaggs,
`867 F.2d 527 (9th Cir. 1989) ...................................................................................................12
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`Withers v. eHarmony, Inc.,
`2010 WL 11526733 (C.D. Cal. Jan. 25, 2010) ........................................................................12
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 1 ...............................................................................................................................8
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`Fed. R. Civ. P. 15(a)(2) ....................................................................................................................5
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`Fed. R. Civ. P. 16(b)(4)....................................................................................................................5
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`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE- iii
`Case No. 2:22-cv-01599-KKE
`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 5 of 18
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`I.
`PRELIMINARY STATEMENT
`An unfortunate but not uncommon development in this case necessitates this request for
`leave to file a Second Amended Complaint. The class representative in this matter, Steven
`Floyd, has recently ceased responding to inquiries from counsel for the proposed class (“class
`counsel”). Mr. Floyd has been a responsive class representative up until this lapse in
`communication, and class counsel wish to give him every opportunity to continue as a class
`representative should he reengage in time to meet his discovery obligations. There may be
`legitimate reasons for his recent non-responsiveness (e.g., health issues or other incapacitating
`events). Nevertheless, class counsel have an overriding duty to the proposed class and this is the
`appropriate juncture to add additional class representatives who can represent the class and
`progress this action should Mr. Floyd withdraw.
`Although Defendants are opposing leave to amend, they have no legitimate grounds for
`doing so. Leave to amend is granted with “extreme liberality” in this circuit, see Desertrain v.
`City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014), including in the precise circumstances
`presented here. When a class representative withdraws or ceases to communicate with class
`counsel, courts in this circuit (and elsewhere) routinely permit the addition or substitution of
`class representatives. This protects the interests of the putative class. It also serves judicial
`economy. As courts recognize, the alternative procedural course is for the proposed new
`representatives to file an entirely new action, which results in senseless duplication and
`inefficiencies. Defendants may see tactical advantages in starting from scratch on a new docket,
`particularly since their motions to dismiss were substantially denied in this case. But that is not a
`cognizable reason to deny leave to amend. See infra Point III.B.
`Amendment would in no way prejudice Defendants. The proposed new class
`representatives—Jolene Furdek and Jonathan Ryan (hereafter, “New Representatives”)—seek to
`assert the same Sherman Act claim, on the same facts, as Mr. Floyd. Discovery is in its infancy.
`No party has produced a single document. No party has taken a deposition. The New
`Representatives have agreed to treat Defendants’ prior discovery requests as having been
`propounded on them, and they will adopt Mr. Floyd’s responses. No adjustments to the schedule
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 1
`Case No. 2:22-cv-01599-KKE
`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 6 of 18
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`will be required. In these circumstances, all pertinent criteria favor granting leave to amend. See
`infra Point III.C.
`Although intervention of new class representatives is not ordinarily required, the New
`Representatives here are also entitled to intervene under Rule 24. As class members, the New
`Representatives possess a real stake in the outcome of these proceedings. Moreover, given the
`breakdown in communications with Mr. Floyd, the New Representatives’ interests are impaired
`and not adequately represented. These facts support intervention, should the court determine
`intervention is procedurally required.
`II.
`BACKGROUND
`This is an antitrust case of enormous consequence to consumers of Apple products.
`Plaintiff and the proposed class allege that Amazon and Apple violated (and continue to violate)
`the Sherman Act by agreeing to strictly restrict the number of third-party sellers permitted to
`offer Apple’s iPhones and iPads on Amazon’s marketplace. This ongoing restraint has virtually
`eliminated competition by third-party Amazon sellers. As was the intended result, Amazon itself
`has become the dominant seller of iPhones and iPads on its marketplace and prices have
`skyrocketed. See ECF No. 37 (FAC) ¶¶ 9-10. The proposed class here consists of consumers
`who purchased iPhones and iPads from Amazon’s marketplace at those inflated prices. See id.
`¶ 145.
`After Defendants initially moved to dismiss, Plaintiff amended the complaint as of right
`on February 27, 2023. ECF No. 37 (FAC). Plaintiff’s First Amended Complaint contained the
`same substantive claims and allegations as the initial complaint, but refined Plaintiff’s
`allegations regarding the relevant antitrust market in which Defendants’ restraints should be
`assessed. See id. ¶ 15.
`On June 8, 2023, Judge Coughenour resolved Defendants’ renewed motions to dismiss.
`Judge Coughenour held that while Defendants’ conduct could not be condemned “per se” under
`the Sherman Act, Plaintiff had stated a Sherman Act Section 1 claim under the “rule of reason”
`framework. Judge Coughenour reasoned that, among other things, Plaintiff had pled facts
`showing that Defendants’ conduct has “anticompetitive effects on the merchant side of the
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 2
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 7 of 18
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`market; on the consumers side of the market; and that it reduced output,” all of which “combined
`to benefit Defendants, and harm consumers.” ECF No. 61 at 10 (citations omitted).
`After reassignment, this Court entered an initial scheduling order on September 29, 2023
`(ECF No. 68), which set forth the following deadlines:
`
`Event
`Substantial completion of document and data
`productions
`Fact discovery cutoff
`Class certification motion
`Class certification opposition and supporting
`expert reports
`Class certification reply and expert rebuttal
`reports
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`Date
`4/3/2024
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`7/8/2024
`8/7/2024
`10/7/2024
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`11/21/2024
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`Despite Plaintiff’s best efforts, discovery has not progressed at the pace Plaintiff’s
`anticipated. After resolving certain threshold disputes, the Court entered a protective order and
`ESI protocols in December 2023. See ECF No. 73 & 77. The parties have exchanged discovery
`requests and have been actively negotiating discovery parameters for several months. But no
`party has produced a single document to date. No depositions have been conducted. While
`Plaintiff has made every effort to resolve discovery disputes without court intervention, it is
`likely that certain overriding disputes will need to be brought to the Court in the coming weeks.
`On February 13, 2024, class counsel notified Defendants of their intention to file a
`Second Amended Complaint (“SAC”), and requested Defendants’ consent pursuant to Fed. R.
`Civ. P. 15(a)(2). The proposed SAC, attached hereto as Harrington Decl. Ex. C, is substantively
`identical to the FAC. It asserts the same Section 1 claim based on the same facts. The only
`differences between the FAC and the proposed SAC is that the latter omits Plaintiff’s per se
`allegations (which Judge Coughenour dismissed)1 and includes the New Representatives. See id.
`Ex. D (redline between FAC and proposed SAC).
`
`
`1 As noted in the SAC, the per se allegations were removed without waiver of any appeal
`rights. See SAC ¶ 15 n.15.
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 3
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`011121-11/2446125 V1
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 8 of 18
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`As class counsel explained to Defendants on February 13, one reason for the proposed
`amendment is that named plaintiff Steven Floyd had become difficult to reach. See Harrington
`Decl. Ex. A. As Defendants have been advised, class counsel last communicated with Mr. Floyd
`on January 16, 2024. Since that time, class counsel has made numerous attempts to contact Mr.
`Floyd, but has not received a response. See id. ¶¶ 2, 10. Mr. Floyd has never affirmatively
`withdrawn as a class representative and, given his prior engagement on the case, class counsel is
`reluctant to interpret his silence as evincing an intent to withdraw. Given the passage of time
`since Mr. Floyd last communicated, it is possible that he has experienced some type of personal
`emergency.
`Nevertheless, to ensure the proposed class’s interests remained protected, class counsel
`proactively initiated outreach for additional plaintiffs on January 24, 2024. Ms. Furdek
`confirmed her willingness to serve as a class representative on February 1, and Mr. Ryan
`confirmed his willingness on February 12. The next day, on February 13, class counsel reached
`out to Defendants to obtain their position on the proposed amendment. Defendants responded by
`requesting additional time to consider the request. Defendants also requested account-
`identifying information for the New Representatives, which class counsel promptly provided.
`On February 22, Defendants provided notice that they would be opposing leave to amend and
`pursuing further discovery from Mr. Floyd. See id. ¶¶ 3-9.
`Class counsel have continued outreach to Mr. Floyd to determine the cause of his non-
`responsiveness and determine whether he wishes to continue as a class representative. Class
`counsel have not yet been able to renew contact with Mr. Floyd, and outreach efforts continue.
`Mr. Floyd was advised that this motion would be filed. See id. ¶ 10.
`In the meantime, class counsel took steps to ensure that the New Representatives will be
`able to abide by the existing schedule should leave to amend be granted. Specifically, class
`counsel have informed Defendants that the New Representatives will treat Defendants’ existing
`discovery requests as having been served on them; they also will adopt Mr. Floyd’s written
`responses. See id. ¶ 6. Class counsel have also begun the process of gathering the New
`Representatives’ documents so they will be positioned to meet the April 3, 2024 substantial
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 4
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 9 of 18
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`A.
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`completion deadline. With fact discovery open for another four months, leave to amend does not
`require any alteration of the case schedule.
`III. ARGUMENT
`Leave to Amend Is Granted with “Extreme Liberality” in the Ninth Circuit.
`The case schedule in this matter contains no deadline to amend pleadings. See ECF No.
`68. Accordingly, Rule 16(b)’s “good cause” standard does not apply here. See Fed. R. Civ. P.
`16(b)(4) (requiring “good cause” to amend scheduling order). Rather, the more liberal Rule 15
`framework governs.2
`Rule 15(a)(2) directs that courts “should freely give leave [to amend] when justice so
`requires.” This standard must be “applied with extreme liberality.” Desertrain, 754 F.3d at
`1154. Relevant factors include (1) prejudice to the nonmovant, (2) repeated failure to cure
`deficiencies by amendment, (3) undue delay or bad faith, and (4) futility of amendment. See
`Eminence Cap., L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Not all factors are
`weighted equally, however. The “touchstone” is whether the amendment will prejudice the
`opposing party. See id. “Absent prejudice, or a strong showing of any of the remaining []
`factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.
`The party “opposing amendment bears the burden to show why it should not be granted.”
`Kirby v. McMenamins Inc., 2023 WL 4623988, at *5 (W.D. Wash. July 19, 2023). Defendants
`cannot meet that burden here.
`B.
`Courts Routinely Grant Leave to Add and Substitute Class Representatives Prior to
`Class Certification.
`Adding and substituting class representatives is “an unexceptionable (routine) feature of
`class action litigation.” Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) (Posner,
`J.). By liberally granting leave to add or substitute class representatives, courts adhere to the
`
`
`2 Jacobs v. Wal-Mart Stores, Inc., 2018 WL 6304759, at *2 (W.D. Wash. Dec. 3, 2018)
`(holding that Rule 15, and not Rule 16, applies when the scheduling order “has no deadline for
`filing motions for leave to amend”).
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 5
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 10 of 18
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`Federal Rules’ permissive policy on amendments and, simultaneously, protect the putative class
`by ensuring adequate representation.
`Here, the proposed amendments merely add additional class representatives without
`removing Mr. Floyd, who has not affirmatively withdrawn. But even if the Court were to treat
`this as a motion to substitute, leave to amend should be granted. In an unbroken line of
`authority, courts in this district have granted precertification motions to substitute class
`representatives who have withdrawn or ceased communicating with counsel. See Kirby, 2023
`WL 4623988, at *3; Fife v. Sci. Games Corp., 2020 WL 4933959, at *3 (W.D. Wash. Aug. 24,
`2020); Castillo v. United Rentals (N. Am.), Inc., 2018 WL 3429936, at *3 (W.D. Wash. July 16,
`2018); Chen v. GEO Group, Inc., 2018 WL 2949449, at * 2 (W.D. Wash. June 13, 2018). Courts
`in other districts have likewise permitted substitution in precisely these circumstances. As one
`court observed: “The weight of authority allows for a sole named plaintiff and proposed class
`representative to be substituted prior to class certification.” Castillo, 2018 WL 3429936, at *3
`(quotation omitted).3
`In fact, failure to permit precertification substitution of class representatives can be
`reversible error. In Griggs v. Pace American Group, the Ninth Circuit reversed the district
`court’s precertification denial of leave to substitute the sole named plaintiff in a putative
`securities class action. See Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 881 (9th Cir. 1999).
`The court reasoned that such “amendment should be permitted unless it will not save the
`complaint or the plaintiff merely is seeking to prolong the litigation by adding new but baseless
`legal theories.” Id. at 881. Emphasizing the Ninth Circuit’s permissive approach to pleading
`amendments, the Griggs court concluded that “amendment to substitute [class representatives]
`
`
`3 See also Gaddy v. Long & Foster Cos., 2023 WL 1926654, at *5 (D.N.J. Feb. 10, 2023)
`(“Numerous courts in this Circuit and around the country routinely allow pre-certification
`substitution of lead plaintiffs in a variety of circumstances.” (quotation omitted)); Mills v. Gen.
`Dynamics Info. Tech., Inc., 2018 WL 6321588, at *4 (M.D. Fla. Dec. 3, 2018); Jalili v. Am. Fam.
`Mut. Ins. Co., 2016 WL 3566252, at *3 (W.D. Mo. June 27, 2016); Aguilar v. Boulder Brands,
`Inc., 2014 WL 4352169, at *8 (S.D. Cal. Sept. 2, 2014); Cedano v. Thrifty Payless, Inc., 2011
`WL 5117930, at *3 (D. Or. Oct. 25, 2011).
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE - 6
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`Case 2:22-cv-01599-KKE Document 80 Filed 02/29/24 Page 11 of 18
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`should have been permitted.” Id.; Castillo, 2018 WL 3429936, at *n.3 (relying on Griggs to
`grant precertification substitution); Kirby, 2023 WL 4623988, at *3 (same).
`As these authorities recognize, precertification substitution of class representatives can be
`“vital for [the] case to continue,” which provides more than good cause to amend. Fife, 2020
`WL 4933959, at *3. The only potential exception is when the claims asserted by the class
`representative seeking to withdraw are inherently defective (e.g., lack of standing). See Castillo,
`2018 WL 3429936, at *2. In that instance, some courts have reasoned that the withdrawing
`plaintiff was “never qualified to represent the class” and denied leave to amend prior to class
`certification on that basis. See id.
`But this limited exception has not been endorsed by the Ninth Circuit, nor could it apply
`in this case. Mr. Floyd’s claims are not inherently defective; they were substantially upheld on
`Defendants’ motion to dismiss. Moreover, even if Mr. Floyd affirmatively withdraws as a class
`representative, his claims would not dissipate. He has not settled or otherwise resolved his
`claims. If Mr. Floyd withdraws, he will remain a member of the putative class, meaning at no
`point would there cease to be a live case or controversy. Fife, 2020 WL 4933959, at *2; Castillo,
`2018 WL 3429936, at *3 (granting motion to substitute where withdrawing “named plaintiff has
`not settled his claims or otherwise had his claims dismissed—thus his claims persist and the case
`or controversy remains alive” (cleaned up)).
`Courts also recognize that denying leave to amend in these circumstances would waste
`judicial resources and serve no practical purpose. The New Representatives can always file an
`entirely new action. And if leave to amend were denied, and Mr. Floyd withdraws or does not
`reengage, the New Representatives will need to file a new action to safeguard the putative class’s
`interests. Defendants may prefer to start all over in this fashion. It would achieve delay and,
`Defendants may hope, a redo on motions to dismiss. But this is not the efficient course. As
`courts recognize, forcing would-be class representatives to file separate actions will “inevitably
`involve even greater duplication of efforts and would severely prejudice [the additional plaintiffs]
`and potential class members.” Fife, 2020 WL 4933959, at *3; Sherman v. Griepentrog, 775 F.
`Supp. 1383, 1386 (D. Nev. 1991) (“If the court were to deny his motion and dismiss the case, the
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`Plaintiff would file again using Mr. Edwards as the named class representative and both sides
`would have to duplicate its efforts to this point.”); accord Aguilar, 2014 WL 4352169, at *10.
`This would hardly serve Rule 15’s overarching purposes of achieving the “just, speedy, and
`inexpensive determination of every action.” See Fed. R. Civ. P. 1.
`C.
`All Pertinent Factors Support Leave to Amend.
`1.
`No Prejudice.
`The most critical factor—prejudice to the nonmovant—tips decidedly in favor of granting
`leave to amend here. This case is in the early stages of discovery. No party has produced a
`single document. No party has conducted a deposition. Accordingly, this is not a situation
`where amendment threatens to disrupt a case in advanced stages.
`Moreover, and as already noted, the New Representatives will treat Defendants’
`discovery requests as having been propounded on them, and they will adopt Mr. Floyd’s
`responses. See Harrington Decl. ¶ 6. In short, the New Representatives will step directly into
`Mr. Floyd’s position without any need to redo discovery. The New Representatives should be
`able to meet the April 3, 2024 substantial completion deadline for document productions. See id.
`¶ 11. And with fact discovery open until July 8, 2024, Defendants will have more than adequate
`time to take the New Representatives’ depositions. Kirby, 2023 WL 4623988, at *6 (no
`prejudice to amendment where defendant would have “sufficient time to conduct any additional
`discovery regarding the Additional Plaintiffs”).
`2.
`Prior Amendments
`Courts are reluctant to grant leave to amend to address deficiencies that the plaintiff has
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`repeatedly failed to cure with prior amendments. See Eminence, 316 F.3d at 1052. That is not a
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`concern here. The New Representatives’ substantive allegations are identical to Mr. Floyd’s and
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`were largely upheld on motions to dismiss. Mr. Floyd’s previous amendment was likewise not
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`directed to any identified pleading deficiency. Rather, Mr. Floyd amended prior to any ruling on
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`Defendants’ motions to dismiss, and only to refine his relevant market allegations. See ECF No.
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`37 ¶ 15.
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`3.
`No Delay or Bad Faith.
`The timeline leading to this proposed amendment does not reflect undue delay or bad
`faith. Far from it, amendment is being sought proactively to safeguard the interests of the class
`in the event Mr. Floyd is unable (or unwilling) to continue in his role as class representative.
`Counsel notified defendants of the proposed amendment within a month of Mr. Floyd’s last
`communication (even though Mr. Floyd had not affirmatively withdrawn), and within days of
`vetting additional class representatives. This motion to amend was then prepared and filed
`within a week of Defendants indicating their opposition.
`In assessing undue delay, courts consider “(1) the length of the delay from when the
`moving party obtained relevant facts; (2) whether discovery has closed; and (3) proximity to
`trial.” Philips N. Am., LLC v. Summit Imaging Inc., 2020 WL 7641200, at *2 (W.D. Wash. Dec.
`23, 2020). Delays of several months (or more) generally are not considered undue,4 and here not
`even one month passed between Mr. Floyd’s last communication and class counsel’s notice of
`the intended amendment. Discovery also has not closed, and a trial date has not been set, further
`confirming that class counsel acted reasonably in the circumstances. Finally, even if there was
`undue delay here (there is not), “delay, by itself, is insufficient to justify denial of leave to
`amend.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
`Nor is there a whisper of bad faith. Class counsel owe a “fiduciary responsibility to the
`class as a whole,” and this duty attaches when “the class complaint is filed.” Staton v. Boeing
`Co., 327 F.3d 938, 960 (9th Cir. 2003) (quoting In re GMC Pick-Up Truck Fuel Tank Prods.
`Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995)). Once it became apparent that Mr. Floyd may no
`longer be able to represent the putative class, class counsel acted appropriately (and
`transparently) to protect the proposed class’s interests.
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`4 Id. (“[T]hree months does not constitute undue delay”); Oppenheimer v. eXp Realty LLC,
`2023 WL 1805568, at *2 (W.D. Wash. Jan. 17, 2023) (“[T]hree or more months’ delay between
`a movant’s discovery of new circumstances and filing motions to amend is not unreasonable.”);
`Intellicheck Mobilisa, Inc. v. Honeywell Int’l Inc., 2017 WL 3772708, at *2 (W.D. Wash. Aug.
`30, 2017) (three-and-a-half months delay not undue).
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`4.
`No Futility.
`“[A] proposed amendment is futile only if no set of facts can be proved under the
`amendment to the pleadings that would constitute a valid and sufficient claim or defense.”
`Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997). Here, the New
`Representatives assert the same Sherman Act claim as Mr. Floyd, which was upheld (under the
`rule of reason framework) prior to reassignment, confirming that amendment will