Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 1 of 13
`
`
`
`BETSY C. MANIFOLD (182450)
`manifold@whafh.com
`RACHELE R. BYRD (190634)
`byrd@whafh.com
`MARISA C. LIVESAY (223247)
`livesay@whafh.com
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone: 619/239-4599
`Facsimile: 619/234-4599
`
`MARK C. RIFKIN (pro hac vice)
`rifkin@whafh.com
`MATTHEW M. GUINEY (pro hac vice)
`guiney@whafh.com
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`270 Madison Avenue
`New York, NY 10016
`Telephone: 212/545-4600
`Facsimile: 212/545-4653
`
`Plaintiffs’ Interim Class Counsel
`
`
`[Additional Counsel Appear on Signature Page]
`
`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`Case No. CV 11-06714-YGR
`
`NOTICE OF MOTION AND MOTION FOR
`LEAVE TO FILE FOURTH AMENDED
`COMPLAINT; MEMORANDUM OF
`POINTS AND AUTHORITIES
`
`
`DATE: November 16, 2021
`TIME:
`2:00 p.m.
`JUDGE: Hon. Yvonne Gonzalez Rogers
`ROOM: 1, Fourth Floor
`
`
`In re Apple iPhone Antitrust Litigation
`
`
`
`
`
`
`
`
`
`
`
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 2 of 13
`
`
`TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE ATTORNEYS OF
`RECORD:
`PLEASE TAKE NOTICE that on November 16, 2021, at 2:00 p.m., or as soon thereafter as
`this matter may be heard before the Honorable Yvonne Gonzalez Rogers, in Courtroom 1, 4th Floor,
`at the Oakland Courthouse, 1301 Clay Street, Oakland, California, 94612, plaintiffs Stephen H.
`Schwartz, Edward W. Hayter, Robert Pepper and Edward Lawrence (“Plaintiffs”), will, and hereby
`do, move this Court pursuant to Federal Rules of Civil Procedure, rule (“FRCP”) 15(a)(2) for an order
`granting leave to file a Fourth Amended Consolidated Class Action Complaint (“FAC”). (A true and
`correct copy of the proposed FAC is submitted herewith as Exhibit A to the contemporaneously filed
`Declaration of Rachele R. Byrd in Support of Motion for Leave to File a Fourth Amended Complaint
`(“Byrd Declaration” or “Byrd Decl.”).)
`The Third Amended Consolidated Class Action Complaint (“TAC”) currently includes
`allegations against Defendant Apple Inc. (“Apple”) for violations of Section 2 of the Sherman
`Antitrust Act. The proposed amendments, which would only add a claim for violation of California’s
`Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (the “UCL”), are not unfairly
`prejudicial to Apple because both the theory of the case and the operative facts remain the same.
`Therefore, no new discovery is required to support the UCL claim. The proposed amendments are
`also made in good faith, are not a result of undue delay, and are not an attempt to cure deficiencies
`that have been left uncured by prior amendments. No delay will be caused by the amendment.
`This Motion is based upon this Notice of Motion, the Byrd Declaration, the proposed FAC,
`attached as required under Civil Local Rule 10-1, the accompanying Memorandum of Points and
`Authorities and any Reply Memorandum subsequently submitted in support of the Motion, any
`argument entertained by the Court on the motion, and any other matters the Court deems proper.
`
`DATED: October 8, 2021
`
`
`
`
`
`
`
`
`
`
`
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`/s/ Rachele R. Byrd
`RACHELE R. BYRD
`
`
`
`
`
`
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 1 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 3 of 13
`
`
`BETSY C. MANIFOLD
`RACHELE R. BYRD
`MARISA C. LIVESAY
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone: (619) 239-4599
`Facsimile: (619) 234-4599
`manifold@whafh.com
`byrd@whafh.com
`livesay@whafh.com
`
`MARK C. RIFKIN
`MATTHEW M. GUINEY
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`270 Madison Ave
`New York, NY 10016
`Telephone: (212) 545-4600
`Facsimile: (212) 686-0114
`rifkin@whafh.com
`guiney@whafh.com
`
`Interim Class Counsel and Proposed
`Co-Class Counsel
`DAVID C. FREDERICK (pro hac vice)
`AARON M. PANNER
`KELLOGG, HANSEN, TODD, FIGEL &
`FREDERICK, P.L.L.C.
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`Telephone: (202) 326-7900
`Facsimile: (202) 326-7999
`dfrederick@kellogghansen.com
`apanner@kellogghansen.com
`
`Counsel for Plaintiffs and Proposed
`Co-Class Counsel
`
`CALCATERRA POLLACK LLP
`MICHAEL LISKOW
`mliskow@calcaterrapollack.com
`1140 Avenue of the Americas, 9th Floor
`New York, NY 10036-5803
`Telephone: (212) 899-1761
`Facsimile: (332) 206-2073
`
`Counsel for Plaintiff Robert Pepper
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 2 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 4 of 13
`
`
`
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`STATEMENT OF THE ISSUE TO BE DECIDED
`Should the Court grant Plaintiffs leave to file a Fourth Amended Consolidated Class Action
`Complaint?
`II.
`INTRODUCTION
`Plaintiffs Stephen H. Schwartz, Edward W. Hayter, Robert Pepper and Edward Lawrence
`(“Plaintiffs”) respectfully request leave to file a Fourth Amended Consolidated Class Action
`Complaint (“FAC”) to add a claim for violation of California’s Unfair Competition Law, Cal. Bus.
`& Prof. Code § 17200, et seq. (the “UCL”).1 Plaintiffs’ TAC currently brings claims against
`Defendant Apple Inc. (“Apple”), for monopolization of the iOS applications aftermarket and
`attempted monopolization of that market in violation of Section 2 of the Sherman Antitrust Act of
`1890, 15 U.S.C. § 2 (the “Sherman Act”). Plaintiffs now seek to amend their allegations to add a
`claim for violation of the UCL, a statute that this Court recently found—after a bench trial in a related
`case—Apple had violated. See Epic Games, Inc. v Apple Inc. Case No. 4:20-cv-05640-YGR
`(“Epic”).
`The Court should grant Plaintiffs’ motion for leave to amend because Plaintiffs’ proposed
`amendments will not be unfairly prejudicial to Apple, as they do not change the theory of the case.
`The UCL claim is based on the same allegations as the Sherman Act claims, therefore no new
`discovery will be required due to the addition of the UCL claim. Furthermore, the amendment would
`not be futile since Apple already litigated (and lost) a UCL claim in the related Epic action, which
`alleged the same antitrust conduct.2 Moreover, the amendments are not the result of undue delay
`
`                                                            
`1
`Both a clean and a redlined version of Plaintiffs’ [Proposed] FAC are attached to the
`Declaration of Rachele R. Byrd in Support of Motion for Leave to File a Fourth Amended Complaint
`(“Byrd Declaration” or “Byrd Decl.”) as Exhibits (“Exs.”) A and B, respectively, pursuant to Civil
`Local Rule 10-1 and so that the Court can easily view the limited amendments Plaintiffs seek to make
`to the Third Amended Consolidated Class Action Complaint (“TAC”).
`2
`Epic did not seek restitution but only injunctive relief. Plaintiffs here will seek restitution in
`addition to the remedies it currently seeks if the Court grants this motion.
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 1 -
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 5 of 13
`
`
`because, despite the many years this case has been pending, it was on appeal for more than five-and-
`a-half years. Plaintiffs bring this motion now because of the Court’s recent issuance of its decision
`in Epic, wherein it ruled in favor of Epic on the UCL claim and against it on all other claims, including
`its Sherman Act claims. Plaintiffs are confident that the Sherman Act clams at issue in Epic are
`distinguishable from this case and that they are therefore likely to prevail on their Sherman Act
`claims; nevertheless, the Court’s ruling underscores the additional legal breadth of the UCL in this
`context. The proposed amendments are not the result of repeated failures to cure deficiencies by
`amendment and will not cause any delay going forward. Plaintiffs’ reply brief in support of their
`motion for class certification is due October 19, 2021, and no other discovery will be required for the
`Court to also consider certification of the UCL claim. The same evidence Plaintiffs submitted in
`support of certification of the Sherman Act claims also supports certification of the UCL claim.
`Therefore, Plaintiffs propose they be given leave to file a supplemental brief to address certification
`of the UCL claim, and that Apple then be permitted to file an opposition. These two additional briefs
`will not delay the Court-ordered schedule in this case. The Court should therefore grant Plaintiffs’
`motion and permit the requested amendment.
`III. RELEVANT FACTS AND PROCEDURAL HISTORY
`This action was filed on December 29, 2011, on behalf of all persons who purchased apps
`from Apple’s “iTunes” site or “App Store” for use on an Apple iPhone. ECF No. 1. Plaintiffs alleged,
`inter alia, that Apple has violated Section 2 of the Sherman Act by monopolizing the aftermarket for
`iPhone apps and preventing the sale of any such apps outside the App Store, a closed market Apple
`created, and thereby forcing consumers to pay supracompetitive prices. On February 9, 2012, the
`Court related the first-filed Pepper action to two other cases (ECF No. 12), and on March 21, 2012,
`Plaintiffs filed their Consolidated Class Action Complaint. ECF No. 26.
`On July 7, 2012, this Court denied in part and granted in part Apple’s motion to dismiss that
`complaint, holding that AT&T Mobile LLC (“ATTM”) was a necessary party, not to the iPhone apps
`aftermarket claim but to voice-and-data services aftermarket claims which are no longer part of this
`case. ECF No. 75. On September 28, 2012, Plaintiffs filed their Amended Consolidated Class Action
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 2 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 6 of 13
`
`
`Complaint, and on August 15, 2013, the Court granted a motion to dismiss that complaint, with leave
`to amend, holding that under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) Plaintiffs had not
`established Article III standing. ECF No. 108. On September 5, 2013, Plaintiffs filed their Second
`Amended Consolidated Class Action Complaint (“SAC”) which added additional allegations, as
`instructed by the Court, demonstrating Article III standing. ECF No. 111. On December 2, 2013,
`the Court dismissed the SAC, again holding that Plaintiffs lacked standing under Illinois Brick. ECF
`No. 124.
`On December 31, 2013, Plaintiffs filed their notice of appeal to the Ninth Circuit. More than
`three years later, on January 12, 2017, the Ninth Circuit reversed the order of dismissal, holding that
`Plaintiffs do have standing under Illinois Brick. Pepper v. Apple Inc. (In re Apple iPhone Antitrust
`Litig.), 846 F.3d 313, 325 (9th Cir. 2017). Apple appealed to the United States Supreme Court, and
`on May 13, 2019, the Supreme Court affirmed the judgment of the Ninth Circuit. Apple Inc. v.
`Pepper, 139 S. Ct. 1514 (2019). On July 16, 2019, after this case had been on appeal for more than
`five and a half years, the Ninth Circuit remanded it back to this Court.
`Shortly before the remand, on June 28, 2019, the first of the two actions now consolidated as
`the Cameron action was filed on behalf of a class of apps developers, alleging Apple’s violations of
`the antitrust laws by monopolization of the iOS apps distribution market. No. 19-cv-03074
`(Cameron), ECF No. 1. On August 22, 2019, granting a motion by Apple, the Court issued an order
`relating Cameron to this case. ECF No. 168.
`On September 27, 2020, the Court granted a stipulation and proposed order permitting
`Plaintiffs to file a Third Amended Complaint such that the aftermarket now includes all iOS apps and
`in-app purchases (including subscriptions). ECF No. 229.
`Discovery is ongoing and is presently scheduled to be completed 60 days after the issuance of
`a decision on class certification, with the hearing on class certification set for November 16, 2021.3
`
`                                                            
`3
`On August 26, 2021, the developer plaintiffs in Cameron filed a motion for preliminary
`approval of a settlement in that action, which is set for a hearing on November 2, 2021. Cameron,
`ECF No. 396.
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 3 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 7 of 13
`
`
`On September 10, 2021, this Court issued its decision in Epic, wherein it found that, while not
`impossible, Epic Games failed in its burden to demonstrate that Apple is an illegal antitrust
`monopolist in the submarket for mobile gaming transactions. It did, however, find that Apple’s
`conduct in enforcing anti-steering restrictions is anticompetitive and a violation of the UCL. Epic,
`ECF No. 812 at 1, 179. The Court issued a permanent injunction to eliminate those provisions in
`order to “increase competition, increase transparency, [and] increase consumer choice and
`information.” Id.; see also Epic, ECF No. 813 (injunction).
`IV. ARGUMENT
`A.
`Applicable Standards
`Where, as here, a “Court’s scheduling orders do not set a deadline for amendments to the
`pleadings, a motion for leave to amend is evaluated under [Federal] Rule [of Civil Procedure] 15.”
`Via Techs., Inc. v. Asus Comput. Int’l, No. 14-cv-03586-BLF, 2017 U.S. Dist. LEXIS 17384, at *3-
`4 (N.D. Cal. Feb. 7, 2017). See also Castillo v. Nationstar Mortg. LLC, No. 15-cv-01743-BLF, 2016
`U.S. Dist. LEXIS 107157, at *2 (N.D. Cal. Aug. 11, 2016) (“Rule 15 is the proper legal standard by
`which to assess Plaintiffs’ motion here because the scheduling order did not set a deadline for
`amendment”).4 Requests for leave to amend should be granted with “extreme liberality.” Brown v.
`Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020). The “purpose of Rule 15 . . . [is] to
`facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203
`F.3d 1122, 1127 (9th Cir. 2000) (en banc) (emphasis in original).
`The Supreme Court has held that Courts are to consider the following factors when deciding
`motions for leave to amend: (1) undue delay; (2) bad faith or dilatory motives on the part of the
`movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the
`opposing party; or (5) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).
`See also Sonoma Cty. Ass'n of Retired Emples. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013);
`
`                                                            
`4
`See also Norton v. Santa Rosa Police Dep’t, No. 14-cv-04352-JST, 2015 U.S. Dist. LEXIS
`157377, at *3 (N.D. Cal. Nov. 19, 2015) (“Contrary to the City’s argument, ECF No. 52 at 3-8, Fed.
`R. Civ. P. 16 does not apply here because the Court’s scheduling order, ECF No. 31, did not set a
`deadline by which the parties must have filed amended pleadings.”).
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 4 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 8 of 13
`
`
`Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). In analyzing the Foman
`factors, the Court should generally make “all inferences in favor of granting the motion.” Griggs v.
`Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citing DCD Programs, Ltd. v. Leighton,
`833 F.2d 183, 186 (9th Cir. 1987)).
`Moreover, under Rule 15, “[t]hese factors are not equally weighted.” Cruz v. Tarantino
`Wholesale Foods, No. 16-cv-0593-JAH (BLM), 2016 U.S. Dist. LEXIS 197177, at *3 (S.D. Cal.
`Aug. 10, 2016). “The single most important factor is whether the non-moving party would be unduly
`prejudiced if amendment is permitted.” Id., at *4 (citing William Inglis & Sons Baking Co. v. ITT
`Continental Baking Co., 668 F.2d 1014, 1053 n. 68 (9th Cir. 1981)). See also Richardson v. United
`States, 841 F.2d 993, 999 (9th Cir. 1988) (leave to amend should be freely given unless the opposing
`party makes “an affirmative showing of either prejudice or bad faith”); DCD Programs, 833 F.2d at
`186-87 (“Denials of motions for leave to amend have been reversed when lacking a contemporaneous
`specific finding by the district court of prejudice to the opposing party, bad faith by the moving party,
`or futility of amendment.”).
`It is well established in the Ninth Circuit that undue delay alone cannot justify denial of leave
`to amend. Tracht Gut, LLC v. L.A. Cty. Treasurer & Tax Collector, 836 F.3d 1146, 1155 n.4 (9th
`Cir. 2016) (“undue delay alone cannot serve as the basis for the denial of leave to amend”); Bowles
`v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (“Undue delay by itself, however, is insufficient to justify
`denying a motion to amend”). See also Flores v. City of Concord, No. 15-cv-05244-TEH, 2017 U.S.
`Dist. LEXIS 88393, at *5 (N.D. Cal. June 8, 2017) (referencing “clearly established law holding that
`undue delay by itself is insufficient to justify denying a motion to amend” (internal quotations and
`ellipses omitted), and granting leave to amend despite finding plaintiffs had unduly delayed in seeking
`leave to amend).
`Here, application of the relevant factors clearly favors granting leave to amend.
`B.
`Apple Cannot Meet Its Burden of Establishing Prejudice
`“Prejudice is the touchstone of the inquiry under rule 15(a)” as to whether amendment will be
`permitted. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation and
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 5 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 9 of 13
`
`
`quotation omitted). “The party opposing amendment bears the burden of showing prejudice.” DCD
`Programs, 833 F.2d at 187. Apple cannot satisfy that burden, because it will not be prejudiced by
`the addition of a UCL claim when that claim relies upon the same operative facts as the Sherman Act
`claims and no additional discovery will be necessary.
`
`1.
`
`The Amendments Do Not Prejudicially Change the Substance of the
`Action
`Where, as here, the proposed amendments do not change the theory of the case, and do not
`require a major change in defenses, tactics or strategy, courts regularly find a lack of prejudice to the
`defendant. See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016)
`(granting leave to amend where, inter alia, plaintiff “does not seek to assert a new legal theory”);
`Sonoma Cty. Ass’n of Retired Emples., 708 F.3d at 1118 (“The County would not be prejudiced,
`because it should be ‘fully prepared to litigate the substantive issues’ of the claim, given that both the
`theory and the operative facts of the claim remain the same”).
`Plaintiffs are not changing the theory of their case and Apple will not be required to make any
`major changes in its defenses. This is demonstrated by the fact that there are minimal additional
`factual allegations in the body of the complaint. The primary amendment is to simply add an
`additional cause of action for violation of the UCL. See Byrd Decl., Ex. A. See also Macias v. KDF
`Foxdale, L.P., No. 5:18-cv-07712-EJD, 2020 U.S. Dist. LEXIS 77392, at *7 (N.D. Cal. May 1, 2020)
`(holding that where a defendant is on notice of the facts contained in an amendment to a complaint,
`they are not seriously prejudiced by amendment); Novoa v. Geo Grp., Inc., No. EDCV 17-2514 JGB
`(SHKx), 2019 U.S. Dist. LEXIS 222588, at *9 (C.D. Cal. Sep. 13, 2019) (“[W]here a defendant is on
`notice of the facts contained in an amendment to a complaint, there is no serious prejudice to
`defendant in allowing the amendment.”) (internal citation and quotation omitted).
`
`2.
`
`The Proposed Amendments Will Not Place a Prejudicial Additional
`Discovery Burden on Apple
`The addition of the UCL claim will not prejudice Apple with respect to its discovery
`obligations. The UCL claim will not require any new discovery because it is based upon the same
`factual allegations as Plaintiffs’ Sherman Act claims. Therefore, no additional discovery will be
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 6 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 10 of 13
`
`
`required of Apple by virtue of the addition of a UCL claim in this case. Courts regularly find that
`similar circumstances favor leave to amend. See, e.g., Vasquez v. Libre by Nexus, Inc., No. 17-cv-
`00755-CW, 2018 U.S. Dist. LEXIS 204481, at *3-5 (N.D. Cal. Dec. 3, 2018) (“Additional discovery,
`if any, would be minimal.”).
`
`3.
`
`The Proposed Amendments Will Not Cause Delay Because They Will
`Not Require Extending Any Deadline Set By the Court
`That an amendment will cause no delay in the proceedings demonstrates a lack of prejudice
`to the non-movant. See Owens, 244 F.3d at 712 (assertion of prejudice was found to lack merit where
`“[t]he amendment caused no delay in the proceedings and required no additional discovery.”). Here,
`amendment of the TAC to include a UCL claim will not cause any delay in the proceedings before
`this Court.
`The next significant event scheduled to occur in this litigation is the hearing on Plaintiffs’
`motion for class certification, scheduled for November 16, 2021. Plaintiffs will rely upon the same
`evidence for certification of the UCL claim as it has already submitted in support of its Sherman Act
`claims. Plaintiffs propose the Court permit the parties to each file a supplemental brief to address
`certification of the UCL claim. The filing of two additional briefs should not materially delay the
`schedule in this case, if at all.
`C.
`Plaintiffs Have Not Unduly Delayed in Bringing this Motion for Leave to Amend
`Although the case was filed ten years ago, for the majority of the time since filing it has been
`stayed in the district court while appeals were pending. The case was not remanded by the Ninth
`Circuit to this Court until July 16, 2019. Discovery did not begin until late 2019, after the remand
`and eight years after Plaintiffs filed their original complaint. Plaintiffs bring this motion now out of
`an abundance of caution because of the Court’s recent issuance of its decision in Epic, wherein it
`ruled in favor of Epic on the UCL claim and against it on all other claims, including its Sherman Act
`claims. While Plaintiffs are confident Epic is distinguishable from this case and that they are therefore
`likely to prevail on their Sherman Act claims, they would be remiss not to seek to add a UCL claim
`given the Court’s ruling.
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 7 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 11 of 13
`
`
`Moreover, even if Plaintiffs had delayed in seeking to amend, which they did not, it is well
`established that undue delay alone cannot justify denial of leave to amend. See Tracht Gut, LLC,
`836 F.3d at 1155 n.4 (“undue delay alone cannot serve as the basis for the denial of leave to amend”);
`Bowles, 198 F.3d at 758 (“Undue delay by itself, however, is insufficient to justify denying a motion
`to amend”); Flores, 2017 U.S. Dist. LEXIS 88393, at *14 (granting leave to amend despite finding
`undue delay). There can be no argument here that any delay warrants denial of leave to file the
`proposed FAC.
`D.
`Plaintiffs Do Not Make This Motion in Bad Faith or With Dilatory Motive
`A motion for leave to amend may be denied where Plaintiffs’ motives are dilatory or otherwise
`in bad faith. Foman, 371 U.S. at 182. The nonmoving party bears the burden of proving dilatory
`motive, DCD Programs, 833 F.2d at 187, which Defendant cannot do here.
`Under Rule 15(a), bad faith includes an amendment to destroy diversity (see e.g., Sorosky v.
`Burroughs Corp., 826 F.2d 794 (9th Cir. 1987)) or for the purpose of keeping meritless claims in
`court, or where there is other evidence of wrongful motive. Jones v. Bates, 127 F.3d 839, 847 n.8
`(9th Cir. 1997). None of those goals, or anything remotely like them, motivates Plaintiffs here.
`Likewise, Plaintiffs also do not gain any strategic advantage by bringing their motion for leave to
`amend at this time. By this amendment, Plaintiffs are striving to provide adequate representation for
`all persons Apple has impacted with its anticompetitive behavior. Defendant cannot find bad faith in
`such a motive.
`
`E.
`
`Plaintiffs’ Amendment Does Not Come as a Result of Multiple Failures to Cure
`Defects in the Pleadings
`The proposed amendment is not a product of “[r]epeated failure[s] to cure deficiencies [with
`prior] amendments.” Foman 371 U.S. at 182. The only prior amendments in this case were to add
`consolidated plaintiffs, to address issues concerning ATTM and standing raised by the Court in its
`orders on motions to dismiss, and to expand the market definition from iPhone apps to all iOS apps
`and in-app purchases, which became necessary due to the passage of time and development of the
`relevant market. Plaintiffs’ claims have now survived dismissal, based on the decisions of the Ninth
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 8 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Circuit and United States Supreme Court.
`Plaintiffs are not seeking to cure any deficiency by amending. Their new proposed allegations
`simply seek to include a claim that, with the Court’s issuance of the Epic decision, has become clearly
`warranted.
`F.
`Plaintiffs’ Amendment is Not Futile
`A proposed amended pleading adding new claims is futile only if “it appears beyond doubt”
`that the claims sought to be added would be dismissed for failure to state a claim. DCD Programs,
`Ltd., 833 F.2d at 188 (internal quotations omitted); see also Kang v. Harrison, No. 17-cv-03034-
`DMR, 2017 U.S. Dist. LEXIS 211175, at *13 (N.D. Cal. Dec. 22, 2017) (“Denial of leave to amend
`on [the ground of futility] is rare, … and if it is not clear beyond doubt that amendment of [a]
`complaint would be futile, a court should permit a party to amend its complaint rather than deny leave
`to amend on the basis of futility.”) (internal quotation and citations omitted).
`Plaintiffs seek to amend their complaint to at the very same claim this Court recently found
`Apple violated in the Epic case, after a bench trial, and based upon the same antitrust conduct
`Plaintiffs complain about here. Under the applicable liberal pleading standard, Plaintiffs’ proposed
`amendments are not futile, given how related this case is to the Epic case. Such non-futile amendment
`should be permitted.
`V.
`CONCLUSION
`For all of the foregoing reasons, Plaintiffs respectfully request that the Court grant them leave
`to file the FAC. See Byrd Decl., Ex. A.
`
`DATED: October 8, 2021
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 12 of 13
`
`
`
`
`
`
`
`
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`
`
`/s/ Rachele R. Byrd
`RACHELE R. BYRD
`
`
`BETSY C. MANIFOLD
`RACHELE R. BYRD
`MARISA C. LIVESAY
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone: (619) 239-4599
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 9 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 4:11-cv-06714-YGR Document 544 Filed 10/08/21 Page 13 of 13
`
`
`Facsimile: (619) 234-4599
`manifold@whafh.com
`byrd@whafh.com
`livesay@whafh.com
`
`MARK C. RIFKIN
`MATTHEW M. GUINEY
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`270 Madison Ave
`New York, NY 10016
`Telephone: (212) 545-4600
`Facsimile: (212) 686-0114
`rifkin@whafh.com
`guiney@whafh.com
`
`Interim Class Counsel and Proposed
`Co-Class Counsel
`DAVID C. FREDERICK (pro hac vice)
`AARON M. PANNER
`KELLOGG, HANSEN, TODD, FIGEL &
`FREDERICK, P.L.L.C.
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`Telephone: (202) 326-7900
`Facsimile: (202) 326-7999
`dfrederick@kellogghansen.com
`apanner@kellogghansen.com
`
`Counsel for Plaintiffs and Proposed
`Co-Class Counsel
`
`
`
`CALCATERRA POLLACK LLP
`MICHAEL LISKOW
`mliskow@calcaterrapollack.com
`1140 Avenue of the Americas, 9th Floor
`New York, NY 10036-5803
`Telephone: (212) 899-1761
`Facsimile: (332) 206-2073
`
`Counsel for Plaintiff Robert Pepper
`
`
`
`
`
`
`
`
`
`
`
`
`
`27670v3
`
`NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND AUTHORITIES
`CASE NO. 11-CV-06714-YGR
`- 10 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`