APPLE’S OPPOSITION TO MOTION FOR 

CLASS CERTIFICATION CASE NO. 5:17-CV-00551-LHK (NC) 

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R. Alexander Pilmer (SBN 166196) 

Tanya L. Greene (SBN 267975) 

KIRKLAND & ELLIS LLP 

333 South Hope Street 

Los Angeles, California 90071 

Telephone: (213) 680-8400 

Facsimile (213) 680-8500 

Email: alexander.pilmer@kirkland.com 

 tanya.greene@kirkland.com 

Joseph A. Loy (admitted pro hac vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, New York 10022 

Telephone: (212) 446-4800 

Facsimile: (212) 446-4900 

Email: joseph.loy@kirkland.com 

Attorneys for Defendant 

Apple Inc. 

Joshua H. Lerner (SBN 220755) 

Sonal N. Mehta (SBN 222086) 

Eugene Novikov (SBN 257849) 

Stephen Elkind (admitted pro hac vice) 

DURIE TANGRI LLP 

217 Leidesdorff Street 

San Francisco, California 94111 

Telephone: (415) 362-6666 

Facsimile: (415) 236-6300 

Email: jlerner@durietangri.com 

 smehta@durietangri.com 

 enovikov@durietangri.com 

 selkind@durietangri.com 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

CHRISTINA GRACE and KEN POTTER, 

Individually and on Behalf of All Others 

Similarly Situated, 

Plaintiffs, 

v. 

APPLE INC., 

Defendant. 

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CASE NO. 5:17-CV-00551-LHK (NC) 

DEFENDANT APPLE INC.’S 

OPPOSITION TO PLAINTIFFS’ 

MOTION TO CERTIFY A 

NATIONWIDE CLASS 

Judge: Hon. Lucy H. Koh 

Dept.: Courtroom 8—4th Floor 

Date: August 2, 2018 

Time: 1:30 p.m. 

REDACTED PURSUANT TO STIPULATED PROTECTIVE ORDER 

Case 5:17-cv-00551-LHK Document 201 Filed 06/15/18 Page 1 of 32
APPLE OPPOSITION TO MOTION FOR CLASS 

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ..................................................................................................................1

II. STATEMENT OF FACTS .....................................................................................................2

A. Apple Coded the Digital Certificate in 2007 and Did Not Discover That it 

Might Impact FaceTime Until October 2013. ............................................................. 2

B. Apple Released iOS 7.0.4 to Solve the Digital Certificate Expiration; Tens of 

Millions of Consumers Updated at No Cost. .............................................................. 3

C. Apple’s Fixed-Fee Agreements For Relay Usage Were Not Impacted By The 

Certificate Expiration. ................................................................................................. 3

D. The Certificate’s Expiration And Its Effect on the iPhone Trade-in Market. ............. 5

E. Plaintiffs’ Lawsuit. ...................................................................................................... 5

III. ARGUMENT ..........................................................................................................................6

A. Legal Standard ............................................................................................................ 6

B. Plaintiffs Do Not Satisfy Rule 23(a)’s Typicality Requirement. ................................ 7

1. Plaintiff Grace Is Atypical. ............................................................................. 7

2. Plaintiff Potter Is Atypical. ............................................................................. 7

C. The Proposed Class Does Not Meet the Requirements For Certification Under 

Rule 23(b)(3) ............................................................................................................. 10

1. Individual Issues Predominate Over Issues Common To The Proposed 

Class. ............................................................................................................. 10

2. Plaintiffs Have Not Demonstrated That A Class Action Is Superior To 

Other Methods of Adjudicating This Controversy. ...................................... 24

D. The Proposed Class Does Not Meet the Requirements For Certification Under 

Rule 23(b)(2). ............................................................................................................ 24

IV. CONCLUSION .....................................................................................................................25

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Allen v. Hyland’s Inc., 

300 F.R.D. 643 (C.D. Cal. 2014) ...................................................................................................24 

Brazil v. Dole Packaged Foods, 

12-cv-01831-LHK, 2014 WL 5794873 (N.D. Cal. Nov. 6, 2014) ................................................18 

Brazil v. Dole Packaged Foods, LLC, 

No. 12-CV-01831-LHK, 2014 WL 2466559 (N.D. Cal. May 30, 2014) ....................18, 19, 22, 24 

Comcast Corp. v. Behrend, 

569 U.S. 27 (2013) ...........................................................................................................2, 7, 13, 14 

Davidson v. Apple, Inc., 

No. 16-CV-04942-LHK, 2018 WL 2325426 (N.D. Cal. May 8, 2018) ........................................14 

Ehret v. Uber Techs., Inc., 

68 F. Supp. 3d 1121 (N.D. Cal. 2014) ...........................................................................................23 

Ellis v. Costco Wholesale Corp., 

285 F.R.D. 492 (N.D. Cal. 2012) ...................................................................................................25 

Ferrington v. McAfee, Inc., 

10-cv-01455, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010) .....................................................17, 18 

In re First All. Mortg. Co., 

471 F.3d 977 (9th Cir. 2006) ...............................................................................................1, 14, 18 

Forcellati v. Hyland’s, Inc., 

No. CV 12-1983-GHK MRWX, 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) .............................24 

Grace v. Apple Inc., 

No. 17-CV-00551, 2017 WL 3232464 (N.D. Cal. July 28, 2017) ...........................................10, 23 

Grodzitsky v. Am. Honda Motor Co. Inc., 

No. 2:12-CV-01142-SVW, 2014 WL 718431 (C.D. Cal. Feb. 19, 2014) .........................21, 22, 23 

Hand Elecs., Inc. v. Snowline Joint Unified Sch. Dist., 

21 Cal. App. 4th 862 (1994) ..........................................................................................................15 

Hanni v. Am. Airlines, Inc., 

No. C 08-00732 CW, 2010 WL 1576435 (N.D. Cal. Apr. 19, 2010) ............................................24 

Hanon v. Dataproducts Corp., 

976 F.2d 497 (9th Cir. 1992) .......................................................................................................7, 9 

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Hernandez v. Burger, 

102 Cal. App. 3d 795 (1980) .........................................................................................................22 

Herskowitz v. Apple, Inc., 

301 F.R.D. 460 (N.D. Cal. 2014) .......................................................................................12, 13, 25 

In re High-Tech Employee Antitrust Litig., 

856 F. Supp. 2d 1103 (N.D. Cal. 2012) .........................................................................................21 

Intel v. Hamidi, 

30 Cal. 4th 1342 (2003) ...........................................................................................................10, 11 

In re iPhone 4S Consumer Litig., 

No. C 12-1127 CW, 2013 WL 3829653 (N.D. Cal. July 23, 2013) ..............................................23 

Jamgotchian v. Slender, 

170 Cal. App. 4th 1384 (2009) ......................................................................................................23 

Kaczmarek v. Int’l Bus. Machines Corp.

186 F.R.D. 307 (S.D.N.Y. 1999) .....................................................................................................8 

Kartman v. State Farm Mut. Auto. Ins. Co., 

634 F.3d 883 (7th Cir. 2011) .........................................................................................................25 

Kimes v. Grosser, 

195 Cal. App. 4th 1556 (2011) ......................................................................................................14 

Korea Supply Co. v. Lockheed Martin Corp., 

29 Cal. 4th 1134 (2003) .................................................................................................................17 

Mateo v. V.F. Corp., 

No. C 08-05313 CW, 2009 WL 3561539 (N.D. Cal. Oct. 27, 2009) ..............................................8 

Mazza v. Am. Honda Motor Co., 

666 F.3d 581 (9th Cir. 2012) .......................................................................................19, 21, 22, 23 

Mazza, Wolph v. Acer Am. Corp., 

272 F.R.D. 477 (N.D. Cal. 2011) ...................................................................................................23 

Opperman v. Path, Inc., 

No. 13-cv-00453-JST, 2016 WL 3844326 (N.D. Cal. Jul. 15, 2016) ............................................24 

In re Packaged Seafood Prod. Antitrust Litig., 

242 F. Supp. 3d 1033 (S.D. Cal. 2017) ..........................................................................................22 

Philips v. Ford Motor Co., 

No. 14-CV-02989-LHK, 2016 WL 7428810 (N.D. Cal. Dec. 22, 2016) ......................................18 

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In re Qualcomm Antitrust Litig., 

 292 F. Supp. 3d 948 (N.D. Cal. 2017) ..........................................................................................22 

Rutledge v. Hewlett-Packard Co., 

238 Cal. App. 4th 1164 (2015) ......................................................................................................23 

Till v. Saks Inc., 

C 11–00504 SBA, 2013 WL 575561 (N.D. Cal. Sept. 30, 2013) ..................................................10 

Villa v. United Site Servs. of California, Inc., 

No. 5:12-CV-00318-LHK, 2012 WL 5503550 (N.D. Cal. Nov. 13, 2012) ...................................24 

VirnetX, Inc. et al. v. Apple Inc., 

12-cv-855-RWS (E.D. Tex) .............................................................................................................4 

VirnetX, Inc. v. Cisco Sys, Inc., 

767 F.3d 1308 (Fed. Cir. 2014)........................................................................................................4 

Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338 (2011) ...................................................................................................................6, 25 

Werdebaugh v. Blue Diamond Growers, 

No. 12-CV-02724-LHK, 2014 WL 7148923 (N.D. Cal. Dec. 15, 2014) ......................................10 

Wershba v. Apple Computer, Inc., 

91 Cal. App. 4th 224 (2001) ..........................................................................................................23 

In re Yahoo Mail Litig., 

308 F.R.D. 577 (N.D. Cal. 2015) .......................................................................................21, 22, 23 

Zinser v. Accufix Research Inst., Inc., 

253 F.3d 1180 (9th Cir.), amended by, 273 F.3d 1266 (9th Cir. 2001) .....................................6, 24 

Rules 

Rule 23 ...............................................................................................................................................1, 6 

Rule 23(a).......................................................................................................................................1, 6, 7 

Rule 23(a)(3) ..........................................................................................................................................7 

Rule 23(b) ..........................................................................................................................................6, 7 

Rule 23(b)(2) ..............................................................................................................................2, 13, 25 

Rule 23(b)(3) ................................................................................................................................ passim

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APPLE’S OPPOSITION TO MOTION FOR CLASS 

CERTIFICATION 1 CASE NO. 5:17-CV-00551-LHK (NC) 

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I. INTRODUCTION 

This case is not a good fit for a class action. Plaintiffs ask the Court to certify a nationwide 

class on the theory that some owners of iPhone 4 or 4S devices were permanently deprived of using 

FaceTime on iOS 6 thereby suffering harm. In fact, the certificate expiration caused no such harm. 

Before and after the expiration, millions of people upgraded their phones to iOS 7. Those who upgraded 

before never lost FaceTime; those who did so shortly after, quickly regained FaceTime at zero cost. 

Even class members who might have cared about the temporary loss of FaceTime have very different 

claims—some immediately restored FaceTime, some did so after a delay, and others jailbroke their 

phones and compromised performance. Plaintiffs’ choice of law is also flawed—there is no reason a 

nationwide class should sue under California’s trespass to chattels or unfair competition law. The class 

suffers from another equally important and fatal flaw: Plaintiffs’ damages theory is untethered to their 

liability theory. The class fails under Rule 23 for several reasons. 

First, Plaintiffs fail to establish Rule 23(a)’s typicality prerequisite. For example, Christina 

Grace 

 

Mr. Potter 

. 

Second, Plaintiffs have not met their burden of establishing Rule 23(b)(3) predominance. The 

factual and legal analysis regarding Plaintiffs’ claims will differ among those consumers 1) who never 

used FaceTime, 2) who restored FaceTime immediately, 3) who waited for months to restore FaceTime, 

4) who jailbroke their phones, or 5) who were unaware of the certificate’s expiration. Likewise, 

whether any individual class member suffered any damage at all depends on myriad variables relating 

to their use of the phone, and the device itself, such as age, storage capacity, condition, and model. 

Moreover, Plaintiffs’ own “Hobson’s choice” theory demonstrates that consumers make individualized 

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levels is not borne out by the facts.2 

. See Pilmer Ex. 2 (Thirumalai Dep. Tr.) at 

110:15-18 

 

. Pilmer Ex. 24 (Akamai Dep. Tr.) at 34:1-35:19. 

). Pilmer Exs. 5, 25, 26, 27 & 

28. 

. Pilmer Ex. 24 at 61:7-62:3; 

212:13-213:17. 

. Id. at 70:2-71:13. 

. Id., at 73. 

. 

Id. at 77:1-22; 210:11-211:9. 

 Pilmer Exs. 45 & 46. 

 

2

 Plaintiffs rely heavily on allegations and inferences from VirnetX as Apple’s alleged motivation for 

“breaking” FaceTime, but that case has nothing to do with the putative class issues here. VirnetX 

asserted infringement by FaceTime of two patents (both have been declared unpatentable by the PTO). 

See VirnetX, Inc. v. Cisco Sys, Inc., 767 F.3d 1308 (Fed. Cir. 2014); see also Federal Circuit Dkt. Nos. 

17-1591, -1592, -2593, -2594 (ongoing appeals of invalidity proceedings). On November 6, 2012, an 

Eastern District of Texas jury (10-cv-417) found that FaceTime in iOS 4-6 infringed the patents-insuit. Id. The Federal Circuit later reversed the infringement finding and vacated the damages on 

September 16, 2014. Id. at 1334. In the meantime, the parties returned to the trial court to assess 

infringement and damages; but the trial court found that consolidation with a later-filed action (12-cv855), and Texas class counsel’s statements and questioning of witnesses, caused sufficient prejudice to 

Apple that the Court deconsolidated the cases and ordered retrials in both. Pilmer Ex. 19. The retrial 

in the -417 Action concluded in September 2016, and that case is currently on appeal at the Federal 

Circuit (and has been designated a “companion” case to the PTO appeals and will be argued before the 

same merits panel). The retrial in the second action recently concluded and is in the midst of post-trial 

briefing. VirnetX, Inc. et al. v. Apple Inc., 12-cv-855-RWS (E.D. Tex) (ECF No. 773) (setting briefing 

schedule). Meanwhile, the invalidity of every asserted patent claim is pending appeal at the Federal 

Circuit. Dkt. Nos. 17-1591, -1592, -2593, -2594. While Apple contests the allegations in Plaintiffs’ 

class certification motion related to VirnetX, other than the illogical alleged motivation, which is 

irrefutably false, the references to the VirnetX matter are irrelevant to the instant opposition and thus 

Apple will reserve its responses for that case rather than waste this Court’s time here. 

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D. The Certificate’s Expiration And Its Effect on the iPhone Trade-in Market. 

 Pilmer Ex. 8 at 1. 

 

. 

See Pilmer Ex. 3 at 46:10-12, 48:15-19 (

; Pilmer Ex. 7 at 27:22-28:25 (

; Pilmer Ex. 17 at 25:9-22 (

Id. 

 

E. Plaintiffs’ Lawsuit. 

Plaintiff Christina Grace filed this action on February 2, 2017. ECF No. 1. On April 5, 2017, 

Plaintiffs filed a First Amended Complaint (FAC), adding Ken Potter as a plaintiff. ECF No. 36. 

. Pilmer Ex. 9 (Grace Dep. Tr.) at 83:15-84:3. 

In her complaint, Ms. Grace alleged that “Apple’s disabling of FaceTime has ‘interfered with Plaintiff 

Grace’s use of her iPhone 4 because’ Grace has been ‘unable to use the FaceTime feature.’ which has 

‘significantly reduced the value of Plaintiff Grace’s iPhone 4.’” ECF No. 65 (Order Denying Motion 

to Dismiss), at 5-6 (quoting FAC at ¶ 24). 

 Pilmer Ex. 9 at 103:15-104:3. 

 Id. at 83:15-84:3, 164:2-22. 

 Rubin Decl. ¶¶ 61-64. 

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APPLE OPPOSITION TO MOTION FOR CLASS 

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 Pilmer Ex. 11 (Potter Dep. Tr.) at 50:14-51:23. 

. Id. at 222:5-22. . Id. at 

223:24-224:5. 

In the FAC, Mr. Potter alleged that after April 16, 2014, he “eventually purchased an iPad for 

his family and a new iPhone 5S . . . ‘in order to have both a functional smartphone and mobile access 

to FaceTime.’” ECF No. 65 (Order Denying Motion to Dismiss), at 6 (quoting FAC, ¶ 28). 

. Pilmer Ex. 11 at 133:25-134:13 

; 145:16-147:16 (

. Id. at

19:10-14; 27:4-18; 145:2-146:20. 

. Id. at 152:17-22. 

.” Id. at 227:9-24; 228:3-19. 

III. ARGUMENT 

A. Legal Standard 

Plaintiffs “bear the burden of demonstrating” that they have “met each of the four requirements 

of Rule 23(a) and at least one of the requirements of Rule 23(b).” Zinser v. Accufix Research Inst., 

Inc., 253 F.3d 1180, 1186 (9th Cir.), amended by, 273 F.3d 1266 (9th Cir. 2001). “Before certifying a 

class, the trial court must conduct a rigorous analysis to determine whether the party seeking 

certification has met the prerequisites of Rule 23.” Id. (internal quotation marks omitted). “Frequently 

that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff's underlying claim.” 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Rule 23 “does not set forth a mere pleading 

standard. Rather, a party must not only be prepared to prove that there are in fact sufficiently numerous 

parties, common questions of law or fact, typicality of claims or defenses, and adequacy of 

representation, as required by Rule 23(a). The party must also satisfy through evidentiary proof at least 

one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (internal 

quotation marks and citations omitted). 

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C. The Proposed Class Does Not Meet the Requirements For Certification Under 

Rule 23(b)(3) 

1. Individual Issues Predominate Over Issues Common To The Proposed 

Class. 

 “For a class action to be certified under Rule 23(b)(3), the class representative must show that 

‘questions of law or fact common to the members of the class predominate over any questions affecting 

only individual members.’” Werdebaugh v. Blue Diamond Growers, No. 12-CV-02724-LHK, 2014 

WL 7148923, at *8 (N.D. Cal. Dec. 15, 2014) (Koh, J.) (quoting FED. R. CIV. P. 23(b)(3)). 

a. Plaintiffs’ Two Claims Require Analysis Of Issues Affecting 

Individual Members of the Proposed Class. 

Individual questions predominate for each of Plaintiffs’ claims. Whether a class member 

sustained any legally-cognizable harm from a performance-related issue from restoring FaceTime will 

also require an individualized inquiry. Plaintiffs have presented no real evidence of performance issues 

regarding iOS 7.1—the applicable operating system on April 16, 2014—on the iPhone 4 or 4S.6 For 

class members who restored FaceTime, a fact-specific inquiry is required to determine the reason for 

any performance issues. This inquiry includes, at a minimum, the device’s use pattern, storage data, 

configuration, model, jailbreaking, tampering, damage, or unauthorized repair. Rubin Decl. ¶¶ 48-59. 

Each of these issues will be unique to each device. 

i. Trespass to chattels. 

In order to establish liability on their trespass claim, Plaintiffs must show “that the purported 

trespass: (1) caused physical damage to the personal property, (2) impaired the condition, quality, or 

value of the personal property, or (3) deprived plaintiff of the use of personal property for a substantial 

time.” ECF 65 at 19. “In particular, an actionable deprivation of use ‘must be for a time so substantial 

that it is possible to estimate the loss caused thereby. A mere momentary or theoretical deprivation of 

use is not sufficient unless there is a dispossession.’” Intel, at 1357. 

 

6 At the motion to dismiss stage, the Court was required to accept as true Plaintiffs’ allegation that iOS 

7 subjected the “iPhone 4 and iPhone 4S to substantially reduced functionality,” Grace v. Apple Inc., 

No. 17-CV-00551, 2017 WL 3232464, at *9 (N.D. Cal. July 28, 2017). But with the benefit of 

discovery, it is now evident that the two devices would respond differently to iOS 7 (and that neither 

was incompatible with it). Rubin Decl. ¶¶ 106-109. Here, Plaintiffs continue to rely on popular press 

articles (which are inadmissible hearsay) and internal testing data for iOS 7 before iOS 7 was released. 

The time for Plaintiffs to have presented admissible evidence to support their performance allegations 

was with their moving papers here. 

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Plaintiffs do not allege any physical damage. Nor can they support a claim for impairment of 

their device’s “condition, quality or value” without an individualized analysis. As described above, 

Plaintiffs have failed to establish a negative impact on the performance of an iPhone 4 and 4S by 

updating to iOS 7.1, and their proposed damages model cannot calculate any such loss caused by the 

alleged deprivation of FaceTime because it applies equally to devices that never suffered an interruption 

of FaceTime. 

To determine whether the deprivation of FaceTime was for a “substantial time,” and not merely 

“momentary or theoretical” requires millions of individualized inquiries. Before April 16, 2014, all 

potentially affected consumers could have updated to an iOS 7 version that would ensure the continued 

availability of FaceTime. See Pilmer Ex. 1, at 6; Pilmer Ex. 18 at 124:9-14; 131:23-132:7; 135:3-16. 

In fact, more than iPhone 4 and 4S owners updated their devices before April 16, 2014, and 

 more updated their devices to iOS 7.1 (or a later version) after April 16, 2014. Pilmer Ex. 4 

(APL-GRACE_000001956) at 7-8. 

For those who updated after April 16, 2014, whether they could state a claim would depend on 

each individual experience. Consumers who updated on April 17, 2014 were not permanently deprived 

of using FaceTime. Likewise, 

 have sustained no more than an inactionable, “theoretical” deprivation of use. 

Those consumers who would have much different arguments about 

potential liability than those like Ms. Grace. 

This claim also requires an individualized inquiry into whether class members sold or traded in 

their devices after April 16, 2014. More than 

. Trexler Rpt. at 44. Setting aside the practical impossibility of identifying those 

individuals, determining whether their ability to use FaceTime was impacted at all, and whether they 

suffered any injury would require an individual analysis of each transaction. Trexler Rpt. at 30 

(describing “characteristics specific to each individual member” of the class’ device, including model, 

color, physical condition, memory, and carrier). This is particularly important because the trade-in 

prices of many class members’ devices increased in the two and a half months after the certificate 

expiration. Trexler Rpt. at 46-51. 

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class members did so.7 Id. at 10. Plaintiffs offer no reasonable suggestion for how to weigh the relative 

gravity of harm for those class members who restored FaceTime and when they did so. 

The abundance of significant individualized issues on both of Plaintiffs’ claims demonstrates 

that Plaintiffs cannot meet Rule 23(b)(2)’s predominance requirement. 

b. Plaintiffs Do Not Present a Classwide Damages Model Consistent 

With Their Theory of Liability. 

Plaintiffs must present a damages model establishing “that damages are susceptible of 

measurement across the entire class for purposes of Rule 23(b)(3).” Comcast, at 35. The model “must 

measure only those damages attributable” to Plaintiffs’ theory of liability. Id. If it does not, the model 

“cannot possibly establish that damages are susceptible of measurement across the entire class for 

purposes of Rule 23(b)(3) . . . at the class-certification stage (as at trial), any model supporting a 

plaintiff's damages case must be consistent with its liability case.” Id. (internal quotation marks and 

citations omitted).

Plaintiffs rely on a single damages model, as described in a report submitted by Professor 

Justine Hastings. ECF No. 174 at 21-24. Dr. Hastings created a multivariate regression model 

analyzing data regarding the prices Best Buy received when it sold used mobile devices between 2013 

and 2016. ECF No. 173-4, ¶¶ 53-54. Dr. Hastings’ damages model purports to calculate 

” Pilmer Ex. 15 at 220:4-9. This methodology is insufficient to demonstrate that classwide 

damages (for Plaintiffs’ trespass claim) or restitution (for Plaintiffs’ UCL claim) can be calculated. 

i. Dr. Hastings’ Regression Model Is Unmoored From 

Plaintiffs’ Trespass to Chattels Theory. 

Dr. Hastings’ Methodology Does Not Tie Damage To Loss Of The Use Of FaceTime. 

A damages model “must measure only those damages attributable” to Plaintiffs’ theory of 

liability. Comcast, 569 U.S. at 35; see also Davidson v. Apple, Inc., No. 16-CV-04942-LHK, 2018 WL 

2325426 (N.D. Cal. May 8, 2018) (denying class certification for failure to tie damages methodology 

to liability theory). 

 

7

 In just May and June 2014, on an average day more than restored FaceTime 

on their device. Pilmer Ex. 21. 

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Here, Dr. Hastings does not provide a model to calculate damages class members incurred as a 

result of the certificate expiration. At best, her model calculates only 

. Pilmer Ex. 15 at 215:18-216:3. 

, id. at 218:9-

17, 

. Id. at 211:17-21. 

. Id. at 218:9-220:9.8

This fundamental failure, by itself, mandates the denial of this motion. 

Dr. Hastings Fails To Account For The Free Restore Offered To Consumers. 

In California, a plaintiff seeking to recover damage to personal property is entitled to recover 

only the lesser of the diminution in value to the property, or the reasonable cost of repairing the 

property. Cal. Civ. Jury Instructions 3903J; see also Kimes v. Grosser, 195 Cal. App. 4th 1556, 1559 

(2011) (owner of damaged personal property “entitled to recover the lesser of (1) the diminution of the 

property's market value caused by the injury, or (2) the reasonable cost of repairing the property”); 

Hand Elecs., Inc. v. Snowline Joint Unified Sch. Dist., 21 Cal. App. 4th 862, 870 (1994) (“if 

depreciation [of property due to tort] is greater than the cost of repairs, the plaintiff may only recover 

the reasonable cost of repairs.”). 

Here, the cost of restoring FaceTime was zero.9 Pilmer Ex. 15 at 212:5-8; Ex. 9 at 181:23-25; 

Ex. 11 at 203:4-9. And Dr. Hastings failed to identify any other 

. Pilmer Ex. 15 at 49:15-50:14. Accordingly, Dr. Hastings’ damages 

 

8

 Dr. Hastings does not distinguish between allegedly impacted and non-impacted phones because it is 

not possible to do so. The data she analyzed did not identify the iOS version of the phones, and thus 

does not distinguish between phones with and without FaceTime. Pilmer Ex. 15 at 220:4-9. 

9

 Plaintiffs and the Court have been clear that the damages Plaintiffs seek are “as a result of the loss of 

FaceTime.” ECF No. 65 at 24 (citing FAC ¶¶ 27, 134) (internal quotation omitted); see also at 18 

(“Plaintiffs’ allegations that the iPhone 4 and iPhone 4S lose functionality when transitioning to iOS7 

are not allegations of injury for purposes of Plaintiffs’ causes of action . . .”) (emphasis added). 

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13 Thus, 

Dr. Hastings can create no benchmark for the value of an iPhone 4 or 4S running FaceTime on iOS 6 

before April 16, 2014. 

 Dr. Hastings also relies on a misleading data set, while ignoring more relevant data regarding 

the value of class members’ phones. ECF No. 173-4, ¶ 53 (“I use the price of the phone Best Buy 

received when it sold the phone to a third-party vendor for eventual resale on the used market to 

estimate damages.”). She does not evaluate the amount class members could have received for their 

devices either before or after April 16, 2014. Pilmer Ex. 3 at 64:5-7 

.”). 

Moreover, Dr. Hastings’ regression model assumes an adverse impact on prices for the devices through 

December 2016, more than two and a half years after the allegedly harmful event. But Dr. Hastings 

selected the “damages period” arbitrarily, and there is no sound basis to assume that any such negative 

price impact would be felt two and a half years later. Trexler Rep. at 52-54. 

In addition, Dr. Hastings calculates a single average price impact, whether the device is an 

iPhone 4 or 4S. These are two different devices, Rubin Decl. ¶¶ 106-109, with different prices and 

values, Trexler Rpt. at 30. 

 Pilmer Ex. 8 (Ex. 88 to Hastings Dep). Apple released a 64GB iPhone 4S, but the largest 

capacity iPhone 4 was 32GB. Trexler Rpt. at 6-7. If comparatively more of one model was traded in 

to Best Buy either before the digital certificate expired than afterwards (or vice versa), that would 

further skew Plaintiffs’ analysis. Id. at 55. 

Dr. Hastings’ methodology also fails to control for whether a phone was jailbroken, damaged, 

or had undergone unauthorized repair. Pilmer Ex. 15 at 180:22-181:1; Trexler Rep. at 55 (discussing 

 

12 Individuals could also sell their used phones to other individuals, but Dr. Hastings makes no effort 

to estimate whether the certificate expiration had an impact on these types of transactions. 13 The existence of this robust secondary market where hundreds of thousands of iPhone 4 and 4S 

devices run FaceTime on iOS 7 ought to put to rest Plaintiffs’ canard that consumers “cannot practically 

transition to iOS 7 because transitioning to iOS7 causes the iPhone 4 and 4S to ‘buckle under the weight 

of the new software.’” ECF No. 65, at 12 (citing FAC ¶¶ 12, 70-87). 

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negative impact of jailbreaking). Her methodology also does not control for those devices in such a 

dilapidated condition as to have no value (such as damaged casing, broken screens, water damage, etc.). 

Pilmer Ex. 15 at 187:23-188:8. Yet many of the devices owned by class members would be nearly four 

years old in April 2014, and a significant number of those devices could be in very poor condition. 

Rubin Decl. ¶¶ 48-59. 

 In addition, reliable regression analysis requires controlling for supply, demand, and 

macroeconomic factors to isolate the variable to be measured, Trexler Rpt. at 27-29, but Dr. Hastings’ 

analysis controls only for “age [of the device], brand, color, storage size and condition,” which 

Plaintiffs assert, without citation, are the “primary factors considered by customers in deciding how 

much to pay for used phones,” and for “the release of new phone models, macroeconomic factors and 

seasonal effects.” ECF No. at 22. Among other factors, Dr. Hastings does not control for promotions 

and news related to the iPhone 4 and 4S. For example: (1) in May 2014, Apple offered enhanced tradein value for the iPhone 4 and 4S of up to $99 and $199, respectively, Trexler Rpt. at 51; (2) also in May 

2014, Best Buy announced it would guarantee $150 for iPhone 4S trade-ins, id.; and (3) on June 2, 

2014, it was announced that the iPhone 4 would not be eligible to upgrade to iOS 8, id. at 52. News of 

this kind likely would affect the resale price of the iPhone 4 and 4S, id. at 51-52, and Plaintiffs’ failure 

to control for it makes it impossible to estimate the digital certificate expiration’s impact on price, if 

any. 

ii. Plaintiffs Make No Effort To Present A Classwide 

Restitution Model For Its UCL Claim. 

 “Plaintiffs prevailing on a UCL claim are generally limited to injunctive relief and restitution.” 

Ferrington v. McAfee, Inc., 10-cv-01455, 2010 WL 3910169, *7 (N.D. Cal. Oct. 5, 2010) citing Korea 

Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003). “Damages and non-restitutionary 

disgorgement are not available.” Id. The measure of restitution under the UCL is “profits unfairly 

obtained to the extent that these profits represent monies given to the defendant or benefits in which 

the plaintiff has an ownership interest.” Id. at 1148; see also In re First All. Mortg. Co., 471 F.3d 977, 

997 (9th Cir. 2006) (“[R]estitution means the return of money to those persons from whom it was taken 

or who had an ownership interest in it.”). In the class certification context, Plaintiffs must present a 

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On the other side of the equation, Dr. Hastings has made no effort to 

. Pilmer Ex. 15 at 49:4-50:14; id. at 176:5-179:12. 

Accordingly, Plaintiffs have failed to provide a methodology sufficient to satisfy their burden on their 

UCL claim. 

c. Choice of Law Rules Do Not Permit a Nationwide Class Here. 

Because adjudication of “nationwide claims will require application of the laws of 50 states, 

common questions of law would not predominate for the proposed nationwide class, as is required by 

Rule 23(b)(3).” Brazil, 2014 WL 2466559, at *14. California law may be applied on a classwide basis 

only if “the interest of other states are not found to outweigh California’s interest in having its law 

applied.” Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590 (9th Cir. 2012). Courts use the threestep governmental interest test to determine whether others states’ interests outweigh California’s. Id. 

Applying the governmental interest test requires courts to: (1) determine whether the law of other states 

is materially different from California’s; (2) if differences exists, determine whether other states have 

an interest in having their law applied; and (3) if other states do have an interest, determine which 

state’s interest would be most impaired if its law were not applied. Id. 591-93. Here, the relevant laws 

of other states are materially different from California’s; those states have an interest in the application 

of their law; and the interests of those states would be more impaired than California’s if their law were 

not applied. 

First, there are material differences among states’ consumer protection and trespass to chattels 

laws. With respect to consumer protection, material differences in state law include15: 

• Individualized proof of injury: While some states, like Alaska, Arkansas, and Florida 

require proof of actual damages in order to recover on claims, other states such as Illinois 

only require a likelihood of future injury to recover, while yet other states such as New 

Mexico must show a likelihood of future injury where injunctive relief is requested. 

• Pre-filing notice: Pre-filing notice, which Plaintiffs did not provide, is required in Alabama, 

Georgia, Indiana, Maine, Massachusetts, Mississippi, Texas, West Virginia, and Wyoming. 

 

15 Citations to the governing law in each state are arranged alphabetically in the Defendant Apple Inc.’s 

State Law Variations Appendix In Support Of Its Opposition To Plaintiffs’ Motion For Class 

Certification, concurrently filed herewith.

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In Alaska, plaintiffs must provide notice if seeking injunctive relief. 

• Statute of Limitations: Statutes of limitations vary and would likely bar Plaintiffs’ actions 

in 15 states. The statute of limitations in Alabama, Arizona, and Louisiana is one year; the 

statute of limitations in Alaska, Georgia, Idaho, Indiana, Iowa, Texas, Virginia, and 

Washington is two years; the statute of limitations in Kentucky, Ohio, and Utah is two years 

or one year after termination of any action by the Attorney General (or, in Utah, other 

enforcing authorities); and the statute of limitations in Wyoming is two years from the date 

that statutory notice of the violation is provided to the defendant. 

• Restrictions on consumer protection class actions: Alabama, Georgia, Louisiana, 

Mississippi, Montana, South Carolina, and Tennessee prohibit consumer protection class 

actions; Iowa permits consumer protection class actions only if first approved by the 

Attorney General; and Ohio permits them only if a prior decision or rule put defendant on 

notice that the specific conduct at issue was deceptive or unconscionable prior to the subject 

transaction. 

• Remedies: The remedies available under states’ consumer protection law vary widely. As 

set out in Attachment A, states differ in whether they permit a prevailing plaintiff to recover 

restitution, actual damages, treble damages, punitive damages, a sum certain per violation, 

or some combination. States also differ as to whether attorney’s fees and equitable relief 

are available. 

• Scienter: Several states do not require a showing of scienter for recovery on consumer 

protection claims. These states include, for example, Kansas, Minnesota, Missouri, 

Nevada and New Hampshire. Louisiana requires something more than mere negligence, 

while states such as Alabama allow for a defense upon a showing that the defendant did 

not knowingly engage in activity in violation of the consumer protection law. 

• Reliance: Consumer protection statues in states such as Arizona, Arkansas, Colorado, 

Georgia, Indiana, Kansas, and Pennsylvania require a showing of reliance to recover for 

claims under their regimes.16 However, states such as Kentucky, Louisiana, Minnesota, 

Missouri, Nevada, New Hampshire, New Jersey, New Mexico and New York have no 

reliance requirement. 

 

Many of these differences in state consumer protection law—including whether proof of injury 

or pre-filing notice is required, the length of the statute of limitations, and restrictions on consumer 

class actions—are by definition material “as their application would ‘spell the difference between the 

success and failure of a claim.’” In re Yahoo Mail Litig., 308 F.R.D. 577, 602 (N.D. Cal. 2015) (Koh, 

J.) (quoting Mazza, 666 F.3d at 591); see also id. at 602-03 (finding material difference in state law 

where “some states provide for injunctive relief while others do not, and the states vary as to whether 

 

16 Most consumer protection cases analyzing the reliance requirement are in the context of consumer 

protection claims related to false or misleading statements allegedly made by defendants. 

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damages may be recovered”); In re High-Tech Employee Antitrust Litig., 856 F. Supp. 2d 1103, 1125 

n.13 (N.D. Cal. 2012) (Koh, J.) (“The Court notes that even if Plaintiffs' UCL claim were to survive a 

motion to dismiss, the UCL claim would likely face an insurmountable hurdle at the class certification 

stage given that the Ninth Circuit has foreclosed the certification of nationwide classes under the 

UCL.”); Grodzitsky v. Am. Honda Motor Co. Inc., No. 2:12-CV-01142-SVW, 2014 WL 718431, at *9 

(C.D. Cal. Feb. 19, 2014) (finding material differences in state law because “in at least five 

jurisdictions, private claims under state consumer protection laws must be asserted personally, and the 

statutes specifically foreclose the use of class actions by private litigants.”). 

Material differences in states’ trespass to chattels laws include: 

• Scienter: The requisite scienter for trespass to chattels varies among states. For example, 

Kentucky requires intent to intermeddle with particular property; in Arizona, an 

intermeddling is not dispossession unless the defendant intended to exercise domination 

over property inconsistent with a possession in any other person than himself; and in 

Colorado and New Mexico, the defendant must have acted with the purpose of interfering 

with the chattel or with the knowledge that such would be the result of his conduct. 

• Statutes of limitation: Statutes of limitations vary and would likely bar Plaintiffs’ actions 

in 12 states. The statute of limitations in Louisiana is one year; the statute of limitations in 

Alaska, Arizona, Hawaii, Indiana, Kansas, Kentucky, Montana, Oklahoma, Pennsylvania, 

Texas, and West Virginia is two years. 

• Interference required: A key element of trespass to chattels is that it requires intentional 

interference with the plaintiff’s property. State law varies widely as to the level of 

interference required to prove a claim. E.g., in Florida and Alabama, any interference at all 

is a trespass; in Washington, a trespass exists only if the defendant damages the possessor’s 

materially valuable property interest; in Texas, actual damage to property or deprivation of 

the owner’s use for a substantial period of time; and in Massachusetts (and several other 

states), interference rises to the level of a trespass if it dispossesses the possessor of a chattel, 

impairs the condition, quality, or value of the chattel, deprives the possessor of the use of 

the chattel for a substantial period of time, or does bodily harm to the possessor or harm to 

a person or thing in which the possessor has a legally-protected interest. 

Each of these variations in state trespass to chattels law is outcome determinative and therefore 

material. In re Yahoo Mail Litig., 308 F.R.D. at 602. 

Second, each state has a strong interest in applying its consumer protection laws within its 

borders which means that “if California law were applied to [a nationwide class], foreign states would 

be impaired in their ability to calibrate liability to foster commerce.” Mazza, 666 F.3d at 593. 

Moreover, “[e]ach state has an interest in being able to delineate the appropriate standard of liability 

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and the scope of recovery based on its understanding of the balance between the interests of individuals 

and corporate entities operating within its territory.” In re Yahoo Mail Litig., 308 F.R.D. at 603 (internal 

quotation marks omitted); Grodzitsky, No. 2:12-CV-01142-SVW, 2014 WL 718431, at *10 (same).17 

Similarly, each state has an interest in protecting its citizens from trespasses to their personal property. 

But States’ tort laws are intended to protect their residents and their residents’ property, and where, as 

here, residents allegedly suffered damage to property within a state, that state has a strong interest in 

applying its own tort laws. 

Third, other states’ interests would be more impaired than California’s if their law was not 

applied. “California recognizes that ‘with respect to regulating or affecting conduct within its borders, 

the place of the wrong has the predominant interest.” Mazza, 666 F.3d at 593 (quoting Hernandez v. 

Burger, 102 Cal. App. 3d 795, 802 (1980)). The place of the wrong is the place where “the last events 

necessary for liability” took place, i.e., where liability accrued. Mazza, 666 F.3d at 593-94; In re 

Packaged Seafood Prod. Antitrust Litig., 242 F. Supp. 3d 1033, 1067 (S.D. Cal. 2017) (“The ‘place of 

the wrong’ is the state where the last event necessary to make the actor liable occurred.”). Plaintiffs’ 

UCL claims accrued where they purchased their devices, Brazil, 2014 WL 2466559, at *13–14 

(Potential UCL liability accrued at purchase), and their trespass to chattels claims accrued where the 

alleged injury—in this case, the loss of FaceTime—occurred. Jamgotchian v. Slender, 170 Cal. App. 

4th 1384, 1401 (2009) (“Under California law, trespass to chattels lies where an intentional interference 

with the possession of personal property has proximately caused injury.”) (emphasis in original). 

Plaintiffs cite no law in support of its argument that California law should apply over foreign states’ 

laws simply because Apple and the relevant employees are based in California. 

In addition to being the “place of the wrong,” each foreign state has a “‘valid interest in shielding 

 

17 Plaintiffs cite in In re Qualcomm Antitrust Litig., 292 F. Supp. 3d 948 (N.D. Cal. 2017) (Koh, J.), 

for the premise that “no other state has any interest in policing unfair business practices committed in 

California.” Mot. at 21. But the Court distinguished the state antitrust laws at issue in In re Qualcomm

from consumer protection laws such as those at issue here. In re Qualcomm Antitrust Litig., 292 F. 

Supp. 3d at 980 (in Mazza, “other states had an interest in applying their consumer protection laws to 

the transactions at hand . . . The same interests are not implicated by the state laws at issue in this case. 

No resident claims the benefit of non-California law here because those state laws do not seek to protect 

consumers by governing their interactions with businesses. Instead, the laws at issue limit which actors 

may bring antitrust damages actions to the benefit of the state’s resident defendants.”). The same logic 

applies to tort laws, such as trespass to chattels, which protect state residents and their property.

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out-of-state businesses from what the state may consider to be excessive litigation,’ because ‘[i]n our 

federal system, states may permissibly differ on the extent to which they will tolerate a degree of 

lessened protection for consumers to create a more favorable business climate for the companies that 

the state seeks to attract to do business in the state.’” In re Yahoo Mail Litig., 308 F.R.D. at 605 (quoting 

Mazza, 666 F. 3d at 592-93). These laws reflect each state’s judgment as to the appropriate protections 

for residents and their property. And several states’ laws provide greater protections to their residents 

than California does. For example, in Florida and Alabama, any interference with property is a trespass, 

see supra at 23, whereas in California, a plaintiff must show “that the purported trespass: (1) caused 

physical damage to the personal property, (2) impaired the condition, quality, or value of the personal 

property, or (3) deprived plaintiff of the use of personal property for a substantial time.” Grace, 2017 

WL 3232464, at *11. The interest of foreign states in applying their consumer protection and trespass 

laws is thus stronger than California’s. See Grodzitsky, 2014 WL 718431, at *10 (“the only connection 

to California for the claims of out-of-state plaintiffs is that . . . [Apple] is a California corporation. This 

interest is limited in comparison to the interests of the foreign jurisdictions in regulating injuries to their 

own citizens. Especially given that California recognizes the ‘place of the wrong’ to hold the 

predominant interest.”).18

“Because adjudication of the nationwide claims will require application of the laws of 50 states, 

common questions of law would not predominate for the proposed nationwide class, as is required by 

 

18 Plaintiffs cite a series of class actions they contend “certified nationwide class actions” against Apple 

and other California companies, Mot. at 20, but none are analogous to this case. Two of the decisions 

Plaintiffs cite did not involve class certification at all, In re iPhone 4S Consumer Litig., No. C 12-1127 

CW, 2013 WL 3829653, at *8 (N.D. Cal. July 23, 2013) (declining to rule on whether certification on 

a nationwide basis was appropriate at the pleadings stage); Ehret v. Uber Techs., Inc., 68 F. Supp. 3d 

1121, 1132 (N.D. Cal. 2014) (holding that “for purposes of the motion to dismiss, application of the 

UCL and CLRA in these circumstances would not constitute extra-territorial application of these 

statutes”); two were decided before Mazza, Wolph v. Acer Am. Corp., 272 F.R.D. 477, 486 (N.D. Cal. 

2011), and Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224 (2001); one concerned breach of an 

obligation to perform repairs that were to be conducted in California, Rutledge v. Hewlett-Packard Co., 

238 Cal. App. 4th 1164, 1187–88 (2015); and in the remainder, the defendant made little or no effort 

to carry its burden, Allen v. Hyland’s Inc., 300 F.R.D. 643, 658 (C.D. Cal. 2014) (“Defendants “fail to 

provide any case-specific analysis addressing the differences among the state laws at issue”); Forcellati 

v. Hyland's, Inc., No. CV 12-1983-GHK MRWX, 2014 WL 1410264, at *2 (C.D. Cal. Apr. 9, 2014) 

(“Defendants’ fact-specific materiality analysis ranges from sparse to nonexistent.”); Opperman v. 

Path, Inc., No. 13-cv-00453-JST, 2016 WL 3844326, at *10 (N.D. Cal. Jul. 15, 2016) (defendant made 

only general argument re interest in applying “intrusion upon seclusion” law). 

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Rule 23(b)(3).” Brazil, No. 12-CV-01831-LHK, 2014 WL 2466559, at *14. 

2. Plaintiffs Have Not Demonstrated That A Class Action Is Superior To 

Other Methods of Adjudicating This Controversy. 

In evaluating Rule 23(b)(3)’s superiority requirement, courts will consider “the difficulties 

likely to be encountered in the management of a class action.” Villa v. United Site Servs. of California, 

Inc., No. 5:12-CV-00318-LHK, 2012 WL 5503550, at *10 (N.D. Cal. Nov. 13, 2012) (Koh, J.). 

Plaintiffs’ proposed class is unmanageable. Zinser, 253 F.3d at 1192 (“When the complexities 

of class action treatment outweigh the benefits of considering common issues in one trial, class action 

treatment is not the ‘superior’ method of adjudication.”). The proposed class raises a significant 

manageability concern, as it is impossible to determine who is a member of the class. There is no 

comprehensive list of users of iPhone 4 and 4S devices, nor is there any systematic way to identify 

which current iPhone 4 and 4S users owned the same devices on April 16, 2014 and which operating 

system they were running at the time.19 Moreover, as described above, of class 

members traded in their devices to AT&T and Best Buy after April 16, 2014. There is no practical way 

to identify who these class members are, or how much they received for those trades. In addition, there 

is no practical way to ascertain the date, time or motivation for restoring FaceTime (or choosing not to 

restore FaceTime). Nor is there any practical method to determine when, if ever, class members learned 

FaceTime was not working on their phone. 

D. The Proposed Class Does Not Meet the Requirements For Certification Under 

Rule 23(b)(2). 

Certifying a Rule 23(b)(2) injunctive class is improper because the damages Plaintiffs seek are 

not incidental to declaratory or injunctive relief and no single injunction or declaratory judgment would 

 

19 Plaintiffs argue that a class action is a superior means of adjudicating this dispute because putative 

class members’ individual recoveries would be less than the cost of litigation, ECF No. 174 at 24-25, 

but that is not sufficient to establish superiority. Villa, 2012 WL 5503550, at *10 (class action not 

superior to individual actions even though “the class members are unlikely to have individual interest 

in prosecuting separate actions, because the amounts of money involved are relatively small in 

comparison to the cost of litigation.”); Hanni v. Am. Airlines, Inc., No. C 08-00732 CW, 2010 WL 

1576435, at *6 (N.D. Cal. Apr. 19, 2010) (“The policy at the very core of the class action mechanism 

is to overcome the problem that small recoveries do not provide the incentive for any individual to 

bring a solo action prosecuting his or her rights. However, if each class member has to litigate 

numerous and substantial separate issues to establish his or her right to recover individually, a class 

action is not superior.”) (internal quotation marks and citations omitted). 

Case 5:17-cv-00551-LHK Document 201 Filed 06/15/18 Page 29 of 32
APPLE OPPOSITION TO MOTION FOR CLASS 

CERTIFICATION 25 CASE NO. 5:17-CV-00551-LHK (NC) 

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apply to each putative class member. Herskowitz v. Apple, Inc., 301 F.R.D. 460, 481 (N.D. Cal. 2014) 

(Koh, J.) (Rule 23(b)(2) certification only appropriate when monetary relief sought is incidental to 

injunctive relief); Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 360 (2011) (“claims for monetary 

relief” may not be certified under Rule 23(b)(2) “at least where (as here) the monetary relief is not 

incidental to the injunctive or declaratory relief.”). Plaintiffs seek “at least” $455,684,338. Mot. at 23. 

This nearly half a billion dollars in damages is not incidental to as-yet unspecified injunctive or 

declaratory relief.20 See Pilmer Ex. 16 at 1-2 (Plaintiffs’ refusing to identify requested injunctive relief). 

Second, the putative class is not certifiable under Rule 23(b)(2) because that rule “applies only when a 

single injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 

564 U.S. at 360; Herskowitz, 301 F.R.D. at 481 (Class certification denied “‘when each individual class 

member would be entitled to a different injunction or declaratory judgment against the defendant.’”). 

Some putative class members have elected not to restore FaceTime but many have. Pilmer Ex. 4 (APLGRACE_000001956). No single injunction could apply to these divergent interests. 

IV. CONCLUSION 

For the foregoing reasons, Apple respectfully requests that the Court deny the Motion. 

 

20 Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 537 (N.D. Cal. 2012) (cited in Mot. at 25) is not to 

the contrary. Relying on Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011), 

which was decided pre-Dukes, Ellis concurrently certified Rule 23(b)(2) and 23(b)(3) classes and 

ordered a three-part trial plan to permit plaintiffs alleging gender discrimination to seek individual and 

classwide equitable relief and money damages. 

Case 5:17-cv-00551-LHK Document 201 Filed 06/15/18 Page 30 of 32
APPLE’S OPPOSITION TO MOTION FOR 

CLASS CERTIFICATION CASE NO. 5:17-CV-00551-LHK (NC) 

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DATED: June 15, 2018 Respectfully submitted, 

KIRKLAND & ELLIS LLP 

/s/ R. Alexander Pilmer

 R. Alexander Pilmer (SBN 166196) 

Tanya L. Greene (SBN 267975) 

KIRKLAND & ELLIS LLP 

333 South Hope Street 

Los Angeles, California 90071 

Telephone: (213) 680-8400 

Facsimile (213) 680-8500 

Email: alexander.pilmer@kirkland.com 

 tanya.greene@kirkland.com 

Joseph A. Loy (admitted pro hac vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, New York 10022 

Telephone: (212) 446-4800 

Facsimile: (212) 446-4900 

Email: joseph.loy@kirkland.com 

and 

Joshua H. Lerner (SBN 220755) 

Sonal N. Mehta (SBN 222086) 

Eugene Novikov (SBN 257849) 

Stephen Elkind (admitted pro hac vice) 

DURIE TANGRI LLP 

217 Leidesdorff Street 

San Francisco, California 94111 

Telephone: (415) 362-6666 

Facsimile: (415) 236-6300 

Email: jlerner@durietangri.com 

 smehta@durietangri.com 

 enovikov@durietangri.com 

 selkind@durietangri.com 

Attorneys for Defendant 

Apple Inc.

Case 5:17-cv-00551-LHK Document 201 Filed 06/15/18 Page 31 of 32
CERTIFICATE OF SERVICE 1 CASE NO. 5:17-CV-00551-LHK (NC) 

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CERTIFICATE OF SERVICE 

On June 15, 2018, I caused the foregoing to be electronically filed with the Clerk of the Court 

by using the CM/ECF system which will send a notice of electronic filing to all persons registered for 

ECF. All copies of documents required to be served by Fed. R. Civ. P. 5(a) and L.R. 5-1 have been 

so served. 

/s/ R. Alexander Pilmer 

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