Apple Continues to Fight iPhone Monopoly Class Action Lawsuit

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Apple Inc. has urged a judge to reject a “meritless and tardy” brief filed by plaintiffs in a class action lawsuit accusing the tech giant of engaging in an antitrust conspiracy with AT&T Mobility to prevent iPhone owners from switching to a different wireless carrier.

In its response motion, Apple claims that a local rule does not allow the plaintiffs to submit additional filings without court approval unless the filings include new evidence or a new judicial opinion. Apple argues that neither of these exceptions apply to the plaintiffs’ brief.

“Plaintiffs’ motion to submit a seven-page sur-reply is a poorly veiled attempt to provide additional and duplicative argument on Apple Inc.’s fully-briefed motion for summary judgment without regard to the requirements of Civil Local Rule 7-3(d),” Apple argued, urging the judge to reject it.

Plaintiffs Zack Ward and Thomas Buchar had asked a judge to submit a sur-reply brief as a supplement to the summary judgment record in the antitrust class action lawsuit. They argued that they needed to file the brief in order to address arguments that had been raised by Apple.

According to Apple, no new arguments were contained in its reply brief, and that it is “entirely predicated on the same arguments that Apple raised in its motion for summary judgment filed on February 2, 2016.”

Apple also says the plaintiffs cite a deposition of their expert, Dr. Frederick Warren-Boulton, which took place after the plaintiffs filed their opposition. However, his deposition allegedly repeats the opinions he had previously expressed in declarations, and shows that he has “zero relevant experience in antitrust theory, economics, or law and did no independent ‘expert’ work at all. Plaintiffs cannot begin to contend they lacked an opportunity to address and defend Dr. Warren-Boulton’s opinions and purported aftermarket expertise in their opposition.”

Apple was initially hit with the iPhone monopoly class action lawsuit in October 2012. Ward and Buchar accused the tech giant of entering into a secret contract to allow AT&T to be the exclusive provider of cell phone services for iPhone customers until 2012. This contract essentially locked iPhone users into using AT&T as their wireless provider, violating customers’ rights to use the network or carrier of their choice.

The plaintiffs claim Apple installed software that locked the iPhones, preventing users from using their iPhones on different networks.

Apple has vigorously fought against the iPhone monopoly litigation. The tech giant filed a motion to dismiss the iPhone class action lawsuit in September 2015, arguing that the plaintiffs failed to show the company had an aftermarket monopoly. This motion was denied.

In February, Apple asked a judge to grant summary judgment on its behalf, again arguing that AT&T does not have an aftermarket monopoly for voice and data services for the iPhone. The tech giant claims that customers almost always signed up for AT&T services, if they were not already subscribers, when they purchased an iPhone.

The plaintiffs fought back against the summary judgment motion, arguing that Apple created a “submarket” of iPhone users who were forced to use AT&T services because it was the only provider of cell phone services for the iPhone. “Plaintiffs will be able to prove at trial that the secondary market for iPhone voice and data service is a distinct market,” they argued.

The plaintiffs are represented by Francis M. Gregorek, Rachele R. Rickert, Marc C. Rifkin, Alexander H. Schmidt and Michael Liskow of Wolf Haldenstein Adler Freeman & Herz LLP.

The Apple iPhone Antitrust Class Action Lawsuit is Ward, et al. v. Apple Inc., Case No. 4:12-cv-05404, in the U.S. District Court for the Northern District of California.

UPDATE: On March 22, 2017, a federal judge ruled that this Apple antitrust class action lawsuit will continue after one narrow legal theory just managed to slip past the defendant’s motion for summary judgment.