Apple Can’t Exclude Expert Testimony in iTunes Antitrust Class Action

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A federal judge put the kibosh on motions by plaintiffs and the defendant to strike the expert testimonies from their opposition, setting the stage for an iTunes antitrust class action lawsuit to move closer to trial.

U.S. District Judge Yvonne Gonzalez Rogers noted that the case began as a result of Apple restricting the music that iPod owners could download to their media player to only songs and albums from the iTunes Store. When the product first launched, competing software provider Real Media was able to allow users to download music from their account before Apple issued two updates.

While previous decisions had tossed the Class Members that would have been affected by the second software change due to it representing an upgrade in services, the class action lawsuit remains in place for the first, which plaintiffs alleged only restricted access and therefore violated the Sherman Antitrust Act. In the latest stage both sides had filed Daubert motions to exclude the testimony of the experts.

Judge Rogers was not convinced by the rationale. In the case of both sides, the issues they had with the opinions and the econometric models of how limiting the access to Real Media music would affect the premium Apple could place on its songs were procedural. Both sides’ economists were eminently qualified within their field, something Rogers noted that neither side placed into question.

So instead of their testimony being excluded regarding the iTunes price-fixing allegations, she argued that it would be better placed in front of a jury should the case go to trial. Any cross-examination or impeachment can be done then, which also is the underlying reason why the judge denied Apple’s motion for summary judgment.

One of the plaintiffs’ witnesses had created a model of pricing indicating that were Apple to have allowed Real Media songs onto the iPod, then the cost per song overall would have been lower. Rogers wrote that “the battle between the economists of the University of Chicago school, on the one hand, and those from Stanford and Michigan State University, on the other, is [not] properly resolved here. … Unless beyond the realms of reason and reliability, these issues are fully within the province of experts to debate and a jury to resolve.”

The plaintiffs are represented by Alexandra Senya Bernay, Bonny E. Sweeney, Carmen Anthony Medici of Robbins Geller Rudman & Dowd LLP, among others.

The iTunes Antitrust Class Action Lawsuit is In re: The Apple iPod iTunes Antitrust Litigation, Case No. 4:05-cv-00037, in the U.S. District Court for the Northern District of California.

UPDATE: On Dec. 16, 2014, a jury handed down a verdict in favor of Apple in the iTunes antitrust trial, finding that the software upgrade was a genuine product improvement and was not intended to stifle competition.