Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 1 of 20
`
`Honorable Kymberly K. Evanson
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`STEVEN FLOYD, individually and on behalf
`of all others similarly situated,
`Plaintiff,
`
`v.
`AMAZON.COM INC. and APPLE INC.,
`Defendants.
`
`Case No. 2:22-cv-01599 KKE
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND FIRST
`AMENDED COMPLAINT AND TO
`INTERVENE
`Note on Motion Calendar: April 5, 2024
`ORAL ARGUMENT REQUESTED
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101
`tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 2 of 20
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`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ............................................................................................................................ 1
`FACTUAL BACKGROUND .......................................................................................................... 2
`ARGUMENT ................................................................................................................................... 4
`
`I.
`
`II.
`
`III.
`
`IV.
`
`Floyd was Never Qualified to Represent the Proposed Class, and Counsel
`Should Not Be Given a “Do Over” With Leave to Start the Class Action
`Anew ........................................................................................................................ 4
`
`Floyd Fails to Meet His Burden Under Rule 16 and Rule 15 .................................. 5
`
`Intervention Should Also Be Denied ....................................................................... 9
`
`Alternatively, Discovery of Defendants Should be Stayed Until Discovery Of
`The New Class Representatives Can Be Taken ..................................................... 10
`
`CONCLUSION .............................................................................................................................. 12
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 3 of 20
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`Am. Express Co. v. Italian Colors Rest.,
`570 U.S. 228 (2013) .................................................................................................................. 9
`Am. Pipe & Constr. Co. v. Utah,
`414 U.S. 538 (1974) .................................................................................................................. 7
`AmerisourceBergen Corp. v. Dialysist W., Inc.,
`465 F.3d 946 (9th Cir. 2006) ..................................................................................................... 9
`Bever v. CitiMortgage, Inc.,
`2014 WL 1577250 (E.D. Cal. Apr. 18, 2014) ........................................................................... 6
`Borden v. eFinancial, LLC,
`2020 WL 7324815 (W.D. Wash. Oct. 16, 2020)..................................................................... 11
`Briggs v. OS Rest. Servs., LLC,
`2021 WL 7448752 (C.D. Cal. Aug. 18, 2021) .......................................................................... 9
`Castillo v. United Rentals (N. Am.), Inc.,
`2018 WL 3429936 (W.D. Wash. July 16, 2018) ....................................................................... 4
`Cedano v. Thrifty Payless, Inc.,
`2011 WL 5117930 (D. Or. Oct. 25, 2011) ................................................................................ 4
`China Agritech, Inc. v. Resh,
`584 U.S. 732 (2018) .............................................................................................................. 7, 9
`Chodos v. W. Publ’g Co.,
`292 F.3d 992 (9th Cir. 2002) ..................................................................................................... 7
`Clarkson v. Alaska Airlines, Inc.,
`2020 WL 13311693 (E.D. Wash. Nov. 3, 2020) ....................................................................... 9
`Conrad v. Jimmy John’s Franchise, LLC,
`2021 WL 3268339 (S.D. Ill. July 30, 2021) .............................................................................. 5
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
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`ii
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` 401 Union Street, Suite 3300
` Seattle, Washington 98101
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 4 of 20
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`Eichman v. Fotomat Corp.,
`880 F.2d 149 (9th Cir. 1989) ..................................................................................................... 7
`In re Flash Memory Antitrust Litig.,
`2010 WL 2332081 (N.D. Cal. June 9, 2010) ............................................................................ 8
`Gen. Tel. Co. of Sw. v. Falcon,
`457 U.S. 147 (1982) .................................................................................................................. 5
`Harris v. Vector Mktg. Corp.,
`2010 WL 3743532 (N.D. Cal. Sept. 17, 2010) .......................................................................... 9
`Hesse v. Sprint Corp.,
`598 F.3d 581 (9th Cir. 2010) ..................................................................................................... 5
`Jacobs v. Wal-Mart Stores, Inc.,
`
`2018 WL 6304759 (W.D. Wash. Dec. 3, 2018) ....................................................................... 6
`Johnson v. Mammoth Recreations, Inc.,
`975 F.2d 604 (9th Cir. 1992) ..................................................................................................... 6
`Kirby v. McMenamins Inc.,
`2023 WL 4623988 (W.D. Wash. July 19, 2023) ....................................................................... 4
`Landis v. N. Am. Co.,
`299 U.S. 248 (1936) .......................................................................................................... 10, 11
`Lidie v. California,
`478 F.2d 552 (9th Cir. 1973) ................................................................................................. 1, 4
`LifeLast, Inc. v. Charter Oak Fire Ins. Co.,
`2015 WL 12910683 (W.D. Wash. July 6, 2015) ....................................................................... 7
`Lindblom v. Santander Consumer USA, Inc.,
`2018 WL 3219381 (E.D. Cal. June 29, 2018), aff’d, 771 F. App’x 454 (9th Cir.
`2019) .................................................................................................................................... 9, 10
`Lockyer v. Mirant Corp.,
`398 F.3d 1098 (9th Cir. 2005) ................................................................................................. 10
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 JCC
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`iii
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 5 of 20
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`Miller v. Mercedes-Benz USA LLC,
`2009 WL 1393488 (C.D. Cal. May 15, 2009) ........................................................................... 5
`Paz v. City of Aberdeen,
`2013 WL 6163016 (W.D. Wash. Nov. 25, 2013) ............................................................. 6, 7, 8
`PBTM LLC v. Football Nw., LLC,
`511 F. Supp. 3d 1158 (W.D. Wash. 2021) ................................................................................ 5
`Randall v. Rolls-Royce Corp.,
`637 F.3d 818 (7th Cir. 2011) (Posner, J.) ................................................................................ 10
`Rutman Wine Co. v. E. & J. Gallo Winery,
`829 F.2d 729 (9th Cir. 1987) ................................................................................................... 12
`Simon v. E. Kentucky Welfare Rts. Org.,
`426 U.S. 26 (1976) .................................................................................................................. 11
`Soto v. Castlerock Farming & Transp., Inc.,
`2011 WL 3489876 (E.D. Cal. Aug. 9, 2011) ............................................................................ 9
`Tavarez v. Moo Organic Chocolates, LLC,
`641 F. Supp. 3d 76 (S.D.N.Y. 2022) ....................................................................................... 11
`US Airways, Inc. v. Sabre Holdings Corp.,
`938 F.3d 43 (2d Cir. 2019) ........................................................................................................ 7
`Velazquez v. GMAC Mortg. Corp.,
`2009 WL 2959838 (C.D. Cal. Sept. 10, 2009) .......................................................................... 9
`Wilson v. PTT, LLC,
`2020 WL 1675909 (W.D. Wash. Apr. 6, 2020) ........................................................................ 8
`Withers v. eHarmony, Inc.,
`2010 WL 11526733 (C.D. Cal. Jan. 25, 2010) .......................................................................... 9
`Yohannes v. Olympic Collection Inc.,
`2019 WL 2515331 (W.D. Wash. June 18, 2019) ...................................................................... 8
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 JCC
`
`iv
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 6 of 20
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`Other Authorities
`Fed. R. Civ. P. 1 ............................................................................................................................ 10
`Fed. R. Civ. P. 15 .................................................................................................................... 1, 5, 6
`Fed. R. Civ. P. 16 ................................................................................................................ 1, 5, 6, 9
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 JCC
`
`v
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 7 of 20
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`INTRODUCTION
`Presumably without the consent or knowledge of Steven Floyd, the sole plaintiff in this
`action, the lawyers who filed two deficient complaints seek to add two new plaintiffs and
`proposed class representatives to fix a fatal flaw of their own making. This would prejudice
`Defendants and should be rejected. Specifically, Floyd’s actual shopping behavior refutes the
`market definition on which the complaint’s antitrust claim rests. The amended complaint alleges
`implausibly narrow markets: sales of smartphones and tablets only on “online marketplaces” like
`Amazon.com, and an alternative market that includes “online one-stop shops” like Bestbuy.com.
`See FAC ¶¶ 135-40. Yet Floyd’s own purchasing patterns demonstrate that there are no such
`narrow markets. Although the complaint alleges Floyd purchased an iPad on Amazon.com, he
`also bought an iPhone from T-Mobile last year—just weeks after the complaint was amended—
`replacing the one he obtained from T-Mobile in 2021. This was not a unique purchase by the
`allegedly “representative” plaintiff; Floyd has purchased many smartphones from cellular carriers
`over the past decade, both before and after the agreement at issue was signed. As a result, Floyd
`is not adequate to represent the putative class. The motion for leave to amend should be denied.
`First, this is an impermissible “back-door attempt to begin the action anew” with
`previously unknown plaintiffs where the originally named plaintiff was “never qualified to
`represent the class” in the first place. Lidie v. California, 478 F.2d 552, 555 (9th Cir. 1973).
`Second, the motion does not satisfy the Rule 15 factors, let alone Rule 16’s good cause
`standard. Modifying the Court-ordered schedule by adding additional plaintiffs would require
`expanded discovery and necessitate extending deadlines in a manner that would prejudice
`Defendants, who are shouldering the brunt of discovery. Granting this motion would also
`prejudice Defendants by evading a statute-of-limitations bar to class-action litigation.
`Third, for the same reasons, the Court should reject the attempt to add the new
`representatives via intervention. Intervention is not appropriate because Defendants will suffer
`prejudice, and the interests of two non-parties are not impaired because they may maintain their
`own individual suits (subject to any defenses).
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
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`1
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`Orrick Herrington & Sutcliffe LLP
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 8 of 20
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`Alternatively, if the Court grants leave to amend, it should stay discovery as to the
`Defendants for 90 days so that Defendants can take initial discovery of the new representatives
`before the case proceeds, if at all, on a revised schedule. That discovery could determine if the
`amendment is futile and would cause no harm to the new representatives as they have not
`participated in the months of discovery that have occurred so far.
`
`FACTUAL BACKGROUND
`Plaintiff’s counsel filed their original complaint on November 9, 2022, listing Floyd as the
`sole named plaintiff. After Defendants moved to dismiss, Plaintiff’s counsel sua sponte amended
`the complaint, again with Floyd as the only plaintiff, alleging relevant markets restricted to
`transactions (1) in “online marketplaces” such as Amazon and eBay and (2) alternatively, in
`“online one-stop shops.” Dkt. 37 ¶ 133. Both proposed markets artificially exclude sales of
`iPhones and iPads at retailers where most consumers purchase those devices, including (1) Apple
`itself, (2) big-box stores, and (3) cellular carriers. Id. ¶¶ 134-38. And for good reason: in a
`broader, more realistic market that includes other retailers that sell Apple products, it would be
`impossible to suggest that the agreement between Amazon and Apple had anticompetitive effects.
`Defendants again moved to dismiss on multiple grounds, including because the proposed
`market “arbitrarily and implausibly exclude[s] obvious sales-channel alternatives.” Dkt. 42 at 15.
`Plaintiff’s counsel responded that Floyd was “locked-in” to buying smartphones and tablets from
`“marketplace online stores,” and that consumers could not turn to “cell phone services providers”
`to get better deals. Dkt. 51 at 31-37. The Court granted Defendants’ motion in part, holding that
`the GTA is not a per se illegal horizontal agreement, but also concluded that its lawfulness should
`be assessed on an evidentiary record based on its economic effect in a properly defined market.
`Dkt. 61.
`Once discovery commenced and Plaintiff’s counsel turned over Floyd’s email address,
`Defendants learned that Floyd is not “locked-in” to online marketplaces. Indeed, cellular carriers
`appear to be Floyd’s preferred place to buy smartphones. Although Floyd has refused to provide
`any information, Apple’s records establish that he has purchased devices from a variety of
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`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
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`2
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`
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`
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`
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 9 of 20
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`sources.
`
`
`
`In May 2023—after filing the amended complaint—Floyd registered a new iPhone 14
`Pro Max purchased through T-Mobile.
`In June 2021 Floyd registered a new iPhone 12 Pro purchased from T-Mobile.
`In February 2018 Floyd registered an iPhone X purchased from AT&T.
`In all, Floyd has obtained over a dozen smartphones from AT&T, Verizon, T-Mobile
`and Cox Mobile.
` None of Floyd’s new iPhones were purchased through “online marketplaces” or
`“online one-stop shops.”
` Floyd’s Apple ID was associated with an iPad that was purchased by a different
`individual from the Apple store.
`See n.1 infra.
`This Court has entered a case-management schedule establishing a substantial completion
`deadline for productions of April 3, 2024. Dkt. 68, 83. Discovery has been a significant
`undertaking for Defendants. In July 2023, Plaintiff served voluminous document requests. The
`parties conferred extensively on search terms, custodians, and other issues. Defendants’ counsel
`and client representatives of Defendants have invested significant resources and hundreds of
`hours into discovery. Defendants will each review at least a half-million documents, and
`Plaintiff’s counsel continue to ask for more. Meanwhile, Floyd has not produced documents,
`responded substantively to interrogatories, or been made available for deposition.
`On February 13, 2024—less than two months before the substantial completion
`deadline—Plaintiff’s counsel disclosed that they wished to amend the complaint again to add two
`new plaintiffs and class representatives. Dkt. 81-1. Plaintiff’s counsel advised that Floyd had
`“become difficult to reach” and they were unsure whether he “wishe[d] to continue to serve as a
`class representative” or was “fully capable of doing so.” Id. Plaintiff’s counsel later disclosed
`they had not communicated with Floyd in nearly a month. Id. On March 8, 2024, Plaintiff’s
`counsel admitted they had been “unable to regain contact,” and that they were “working to regain
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
`
`3
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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 86 Filed 03/21/24 Page 10 of 20
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`contact” with Floyd. See Perry Decl., Ex. T, at 3-4. Floyd’s absence did not, however, prevent
`Plaintiff’s counsel from providing non-substantive responses and objections to discovery requests
`just three days later, without indication that Floyd ever saw those responses. Plaintiff’s counsel
`speculate that Floyd may be incapacitated or unwell. Dkt. 80. Fortunately, Floyd’s social media
`posts indicate he is fine. See Perry Decl., Ex. S.
`ARGUMENT
`
`I.
`
`Floyd was Never Qualified to Represent the Proposed Class, and Counsel Should
`Not Be Given a “Do Over” With Leave to Start the Class Action Anew
`
`Plaintiff’s lawyers attempt to excuse their failure to select an adequate class representative
`because of Floyd’s non-responsiveness, contending that courts routinely grant precertification
`motions to substitute class representatives in “precisely these circumstances.” Mot. 6. But the
`very cases on which they rely cut against substitution here because, unlike in those cases,
`rudimentary diligence at the outset of this case would have shown that Floyd was “w[as] never
`qualified to represent the class[.]” Lidie, 478 F.2d at 555; compare Cedano v. Thrifty Payless,
`Inc., 2011 WL 5117930, at *6 (D. Or. Oct. 25, 2011) (“nothing … suggests that Plaintiff’s
`counsel had reason to know Cedano … was otherwise an inappropriate representative ‘in the first
`instance.’”); Kirby v. McMenamins Inc., 2023 WL 4623988, at *4 (W.D. Wash. July 19, 2023)
`(counsel “only became aware of [defendant’s] allegations of [plaintiff’s] inadequacy as a class
`representative” two months earlier); Castillo v. United Rentals (N. Am.), Inc., 2018 WL 3429936,
`at *5 (W.D. Wash. July 16, 2018) (defendant “makes no mention” of how plaintiff was
`inadequate). Subjecting Defendants to the burdens of litigation for over a year with a plaintiff
`who is an inadequate representative of the putative class, while simultaneously refusing to
`produce documents or offer dates for deposition, is conduct that makes amendment inappropriate.
`The present motion is thus a “back-door attempt to begin the action anew” with new
`representatives where “the original plaintiff[ ] w[as] never qualified to represent the class[.]”
`Lidie, 478 F.2d at 555. Courts routinely rejected amendment where counsel offers new plaintiffs
`to address the inadequacy of the existing class representative. Id.; see also Miller v. Mercedes-
`
`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
`
`4
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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 86 Filed 03/21/24 Page 11 of 20
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`Benz USA LLC, 2009 WL 1393488, at *1–2 (C.D. Cal. May 15, 2009) (describing belated
`attempt to swap representatives as a “bait-and-switch tactic”). So too here.
`Given his purchasing history, Floyd is not, and has never been, an adequate class
`representative. Unlike the putative class of shoppers in the alleged “online marketplaces” market
`he purports to represent, Defendants’ records establish that Floyd does shop for Apple devices
`from cellular carriers. See Perry Decl., ¶¶ 3-18.1 The availability of these reasonable “economic
`substitutes” undermine his asserted relevant market. PBTM LLC v. Football Nw., LLC, 511 F.
`Supp. 3d 1158, 1179 (W.D. Wash. 2021) (“A product market ‘must encompass the product at
`issue as well as all economic substitutes for the product.’”). Floyd cannot adequately represent
`the proposed class because his purchasing behavior is flatly at odds with the narrow alleged
`relevant market and any claimed injury. See Conrad v. Jimmy John’s Franchise, LLC, 2021 WL
`3268339, at *10-11 (S.D. Ill. July 30, 2021) (“‘[C]ommon proof of actual injury to each class
`member requires that all class members operate in the same relevant market, otherwise, they
`could not be affected in a common manner by the challenged conduct.’”) (citing Exhaust
`Unlimited, Inc. v. Cintas Corp., 223 F.R.D. 506, 513 (S.D. Ill. 2004)). It is well-settled that “a
`class representative must be part of the class and ‘possess the same interest and suffer the same
`injury’ as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982). These
`conflicts between Floyd and the proposed class render him inadequate from the start. See Hesse v.
`Sprint Corp., 598 F.3d 581, 588-89 (9th Cir. 2010) (adequacy defeated by “conflict of interest”
`between the named plaintiff and the class).
`Although Defendants learned of Floyd’s inadequacy only after the motion to dismiss
`ruling, Plaintiff’s counsel had a duty to investigate whether Floyd was an appropriate
`representative to pursue a case alleging such narrow market definitions.
`II.
`Floyd Fails to Meet His Burden Under Rule 16 and Rule 15
`Beyond the overarching deficiency identified above, Plaintiff’s counsel also fail to satisfy
`
`1 Defendants’ records are sufficient to establish Floyd’s inadequacy for purposes of this motion
`(particularly since Plaintiff’s counsel have not tried to show adequacy). If this case were to proceed,
`however, Defendants will further demonstrate that Plaintiff’s counsel cannot meet their burden to show, in
`a motion for class certification, that Floyd adequately represents the class.
`5
`DEFENDANTS’ OPPOSITION TO
`Orrick Herrington & Sutcliffe LLP
`MOTION TO AMEND
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101
`tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 12 of 20
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`the independent requirements of Rule 16 and Rule 15. Amendment would prejudice Defendants
`and improperly delay this matter.
`A. Contrary to counsel’s assertion, Rule 16 applies to the motion. Mot. 5. When a motion
`to amend, “if granted, necessarily requires modification of the scheduling order,” the plaintiff
`must satisfy Rule 16(b)(4)’s good cause standard, which considers the diligence of the party
`seeking amendment. Paz v. City of Aberdeen, 2013 WL 6163016, at *3 (W.D. Wash. Nov. 25,
`2013). This is so even where the “Court’s scheduling order does not set a specific deadline for
`seeking amendments to the complaint[.]” Id.; see also Bever v. CitiMortgage, Inc., 2014 WL
`1577250, at *8 (E.D. Cal. Apr. 18, 2014) (denying motion to amend where the court had not set a
`deadline to amend the pleadings); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
`Cir. 1992) (denying amendment: “If that party was not diligent, the inquiry should end.”).2
`Granting the motion would require meaningful changes to the scheduling order. The Court
`set April 3, 2024, as the deadline for substantial completion of productions and July 8, 2024 as
`fact discovery cutoff. Dkt. 68. Despite assertions that these deadlines can be met (Mot. 8-9), that
`is unrealistic. First, this motion is not noted for consideration until after the substantial
`completion deadline, and Defendants have been unable to serve discovery requests on the new
`individuals, who are not parties. Counsel’s representation that these new individuals will consider
`requests to Floyd as served upon them does not enable Defendants to serve requests tailored to
`either. Second, the parties have not conferred over responses by the new plaintiffs, so it is
`impossible they could produce responses by April 3. Third, to obtain complete information about
`each new plaintiff’s purchasing histories, Defendants may need to serve third-party subpoenas on
`other manufacturers and retailers regarding purchases outside Amazon.com of smartphones and
`tablets. This process can begin only after the new representatives provide full purchasing
`information. Therefore, Plaintiff’s counsel’s claim that amendment will not disrupt the deadlines
`in the scheduling order is incorrect.
`B. Even under the Rule 15 standard, the motion falls short. See Paz, 2013 WL 6163016,
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`2 Jacobs v. Wal-Mart Stores, Inc., is not to the contrary because it did not involve other deadlines
`affected by amendment. 2018 WL 6304759, at *2 (W.D. Wash. Dec. 3, 2018).
`6
`DEFENDANTS’ OPPOSITION TO
`Orrick Herrington & Sutcliffe LLP
`MOTION TO AMEND
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 13 of 20
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`at *2. “Five factors are used to assess the propriety of a motion for leave to amend: (1) bad faith,
`(2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether
`the party has previously amended its pleading.” LifeLast, Inc. v. Charter Oak Fire Ins. Co., 2015
`WL 12910683, at *2 (W.D. Wash. July 6, 2015) (denying amendment); see also Chodos v. W.
`Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (denying amendment). The prejudice and delay
`factors preclude another amendment.
`Prejudice. Amendment would prejudice Defendants in at least two ways.
`First, the amendment appears designed to circumvent a potentially fatal statute of
`limitations issue. Any cause of action challenging the GTA accrued, at latest, when the
`supposedly illegal agreement, which was signed on October 31, 2018, was widely publicized. See
`Eichman v. Fotomat Corp., 880 F.2d 149, 160 (9th Cir. 1989) (summary judgment affirmed
`because statute of limitations had run); US Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43,
`69 (2d Cir. 2019) (similar). Because that agreement was publicized over four years before Floyd
`filed his original complaint, he and any other plaintiff are time-barred.3 But if Plaintiff’s counsel
`persuades the Court that the public did not have notice until later in 2018, such that Floyd’s suit
`was timely, they will likely argue the pendency of Floyd’s putative class action tolled individual
`suits by the new representatives as well. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538
`(1974). Critically, tolling would apply only to individual suits by the new representatives; it
`would not permit counsel to substitute them as representatives of any potential class. See China
`Agritech, Inc. v. Resh, 584 U.S. 732, 740 (2018).
`Thus, the motion would sidestep the Supreme Court’s ruling that tolling doctrines cannot
`be “stacked.” Id. at 738. Defendants would be prejudiced by having to defend against an untimely
`putative class action. By contrast, the new representatives would suffer no prejudice from a denial
`of the motion because the statute of limitations is tolled for individual capacity suits by the initial
`class action. Id. at 740; Wilson v. PTT, LLC, 2020 WL 1675909, at *1 (W.D. Wash. Apr. 6,
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`3 Cf. https://www.cnbc.com/2018/11/09/more-apple-products-are-coming-to-amazon-under-a-
`new-deal.html. Defendants did not raise this issue in their motions to dismiss because its
`resolution may depend on facts about events in 2018. Floyd must therefore sit for deposition.
`7
`DEFENDANTS’ OPPOSITION TO
`Orrick Herrington & Sutcliffe LLP
`MOTION TO AMEND
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101
`tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 86 Filed 03/21/24 Page 14 of 20
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`2020). If the new representatives believe they can sue without regard to the statute of limitations,
`they remain free to do so. There is no reason for them to be shoehorned into an already amended
`complaint with an existing representative whose actions show he disagrees with them about a
`fundamental issue in the case—whether consumers can turn to cellular carriers, Apple, and
`retailers that are not “one-stop shops” to buy smartphones and tablets.
`Second, amendment would inflict a disproportionate, unjustified discovery burden on
`Defendants. Defendants have devoted significant time and expense to discovery, and served
`requests for production and interrogatories that have been frustrated by Floyd’s failure to respond
`substantively. While Plaintiff’s counsel contends there is no harm in substituting new plaintiffs to
`make up for Floyd’s failure (Mot. 12), allowing substitution now “would require Defendants to
`conduct new and/or additional discovery that would not otherwise have been required had
`Plaintiff[ ] joined the appropriate representatives in the first instance.” In re Flash Memory
`Antitrust Litig., 2010 WL 2332081, at *17 (N.D. Cal. June 9, 2010). Beyond needing to take
`written discovery, document discovery, and depositions of the new representatives, Defendants
`will also need to expend resources on expanded third-party discovery to manufacturers and
`retailers from which the new representatives may have purchased smartphones and tablets. See
`Paz, 2013 WL 6163016, at *4 (prejudice may exist where “additional discovery would have to be
`undertaken” based on amended pleading). The effect of the prejudice is particularly unfair given
`Floyd’s “poor rationale” for adding new representatives, which could have been done earlier
`given the obvious problems with Floyd and with relying on one representative plaintiff. Wilson,
`2020 WL 1675909, at *1.
`Delay. Plaintiff’s counsel suggests that Floyd’s non-responsiveness provides reason for
`the late substitution request. But Plaintiff’s counsel “knew or should have known the facts and
`theories raised by the [amended]” complaint, including that Floyd was an inadequate class
`representative because of his shopping behavior. Yohannes v. Olympic Collection Inc., 2019 WL
`2515331, at *2 (W.D. Wash. June 18, 2019). Counsel was “obligated to know” when the
`complaint was filed and amended “whether [Floyd] adequately represented the claims they
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`DEFENDANTS’ OPPOSITION TO
`MOTION TO AMEND
`Case No. 2:22-cv-01599 KKE
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