Antitrust Law Daily Wrap Up, ANTITRUST—D.N.J.: MDL court appoints direct Apple Watch purchaser and indirect iPhone purchaser interim class counsel, (Oct 21, 2024)

By Justin Marcus Smith, J.D.

The court generally agreed it made sense to appoint interim class counsel; however, it expressed concern about the number of attorneys or the clarity of their roles in connection with two competing direct iPhone purchaser class motions.

After the June 2024 centralization of numerous antitrust actions against Apple, Inc. in the federal district court in Newark, New Jersey, the court turned its attention to four motions seeking appointment of interim class counsel. The court generally agreed it would be appropriate to appoint separate interim counsel to ensure fair and adequate representation of the interests of the direct Apple Watch purchasers (DAWP Group), indirect iPhone purchasers (IIP Group), and direct iPhone purchasers (DIP Group), respectively. For example, the court acknowledged how the DIP Group plaintiffs alleged that Apple used the Apple Watch to prevent customers from buying other smartphones, whereas the DAWP Group focused their conduct and pricing arguments on the Apple Watch itself. However, for now, the court only appointed interim counsel for the DAWP Group and IIP Group; it reserved on appointment of an executive committee for the IIP Group; and, it reserved on appointment of interim counsel for the DIP Group. The court expressed concern about the number of attorneys involved in DIP Group 1’s proposal and whether the responsibilities of the attorneys were sufficiently clear in DIP Group 2’s proposal. The court requested supplemental briefing about its reservations (In Re Apple Inc. Smartphone Antitrust Litigation, No. 2:24-md-03113-JXN-LDW (D.N.J. Oct. 17, 2024)).

In addition to more than two dozen actions now pending in New Jersey, the Department of Justice and its expanded group of 20 government co-plaintiffs filed an amended smartphone monopolization complaint in June.

DAWP Group. The court appointed Kellogg, Hansen, Korein Tillery and MoloLamken as co-lead interim counsel for the putative DAWP Plaintiff class. No one opposed their motion. The court noted the co-counsel conducted an extensive investigation, and they were the only firms to raise claims exclusively on behalf of Apple Watch purchasers. The court also found the two firms experienced in antitrust matters and had substantial resources to prosecute their case. The court also appointed McElroy, Deutsch, Mulvaney & Carpenter, LLC, led by partners Thomas R. Curtin and Kathleen N. Fennelly, as liaison counsel for the putative Direct Apple Watch Purchaser Plaintiff class.

IIP Group. The court appointed Spector Roseman, Schneider Wallace, Berger Montague, and Lockridge Grindal as co-lead interim counsel for the putative IIP plaintiff class. The court also appointed Javerbaum, led by partner Stanley King, as liaison counsel for this class. However, the court reserved on appointment of an executive committee to support co-lead counsel. It said an executive committee did not appear necessary or beneficial to the interests of the class. The resources and qualifications of Spector Roseman, Schneider Wallace, Berger Montague, and Lockridge Grindal appeared to be sufficient at this stage. The court also said it did not want to increase costs or cause duplication of effort. However, the court asked for supplementary briefing on the executive committee request.

DIP Groups. The court reserved decision on appointment of interim counsel for the putative DIP plaintiff class after reviewing the competing motions of two DIP groups. The court expressed confidence that DIP Group 1 and DIP Group 2 each had the experience and resources to litigate the matter, but the court said it was concerned about the appointment of numerous attorneys. DIP Group 1 proposed sixteen lawyers including four co-lead counsel, a seven-member executive committee, and a five-member steering committee. The court said it did not see sufficient ground for that structure. DIP Group 2 proposed Hausfeld and Susman Godfrey to serve as co-lead counsel, inclusive of fifteen attorneys, plus attorneys from Lite DePalma Greenberg & Afanador and Michael Critchley, Sr., of Critchley, Kinum & Luria. The court said it did not see a clear breakdown of their responsibilities. The court accordingly ordered DIP Group 1 and DIP Group 2 to provide supplementary pleading about contemplated duties and responsibilities. The court also urged the two DIP groups to meet and confer.

The Case is No. 2:24-md-03113-JXN-LDW.

Judge: Neals, J.

Attorneys: Daniel Z. Goldman (Bienert Katzman Littrell Willaims LLP) for Christina Kolinsky. Catherine B. Derenze (Lite Depalma Greenberg & Afanador, LLC) for Ira Polly. Elizabeth F. Quinby (Preti, Flaherty, Beliveau & Pachios, LLP) for Susan Marie. Craig Primis (Kirkland & Ellis LLP) for Apple, Inc.

Companies: Apple, Inc.

Cases: Antitrust AntitrustDivisionNews NewJerseyNews