REPLY IN SUPPORT OF PLAINTIFFS’ MOTION TO CERTIFY A NATIONWIDE CLASS Case No. 5:17-cv-00551-LHK-NC

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STEYER LOWENTHAL BOODROOKAS 

 ALVAREZ & SMITH LLP 

Allan Steyer (State Bar No. 100318)

Jill M. Manning (State Bar No. 178849)

D. Scott Macrae (State Bar No. 104663)

One California Street, Suite 300 

San Francisco, CA 94111 

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

asteyer@steyerlaw.com

jmanning@steyerlaw.com

smacrae@steyerlaw.com

PEARSON, SIMON & WARSHAW, LLP

Bruce L. Simon (State Bar No. 96241)

Daniel L. Warshaw (State Bar No. 185365)

Alexander L. Simon (State Bar No. 305734)

44 Montgomery Street, Suite 2450

San Francisco, CA 94104

Telephone: (415) 433-9000

Facsimile: (415) 433-9008

bsimon@pswlaw.com

dwarshaw@pswlaw.com

asimon@pswlaw.com

[Additional Counsel Listed on Signature Page]

Counsel for Plaintiffs and

Proposed Counsel for the Class

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.

Case No. 5:17-cv-00551-LHK-NC

CLASS ACTION

REPLY MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT 

OF PLAINTIFFS’ MOTION TO 

CERTIFY A NATIONWIDE CLASS 

Date: August 2, 2018

Time: 1:30pm

Court: 8, 4th Floor

Judge: The Honorable Lucy H. Koh

REDACTED PURSUANT TO STIPULATED PROTECTIVE ORDER

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TABLE OF CONTENTS

Page

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

II. ARGUMENT .............................................................................................................. 1

A. Apple’s Statement of Facts Contains Myriad Inaccuracies ............................... 1

B. Certification Under Rule 23(a) is Appropriate .................................................. 2

 1. Plaintiffs Grace and Potter Are Typical of the Proposed Class ............... 2

 2. Common Legal and Factual Issues Predominate ..................................... 4

 (a) Individual Issues Do Not Predominate Over the Common 

 Issues............................................................................................... 4

 (b) Damages and Restitution Can be Calculated on a Class-Wide

 Basis ................................................................................................ 5

 (i) Apple’s Comcast Argument Fails ......................................... 6

 (ii) Ms. Trexler’s Attacks on Dr. Hastings’ Regression 

 Model Fail ............................................................................. 8

 (iii) Apple’s Restitution-Based Arguments Fails ......................... 11

 3. Apple’s Attempts to Defeat a Nationwide Class Fail .............................. 12

 (a) There Are No Material Differences Among State Trespass 

 to Chattels Laws.............................................................................. 12

 (b) California Has the Predominate Interest in Applying Its Law ....... 14

 4. Class Members Are Identifiable and Ascertainable ................................. 14

C. Certification Under Rule 23(b)(2) Is Appropriate .............................................. 15

III. CONCLUSION ........................................................................................................... 16

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TABLE OF AUTHORITIES

CASES Page

Bazemore v. Friday

478 U.S. 385 (1986) .................................................................................................... 9

Bernstein v. Virgin Am., Inc.

No. 15-CV-02277-JST, 2016 WL 6576621 (N.D. Cal. Nov. 7, 2016) ....................... 8

Body by Cook v. Ingersoll-Rand Co.

39 F. Supp. 3d 827 (E.D. La. 2014) ............................................................................ 13

Brazil v. Dole Packaged Foods, LLC

No. 12-CV-01831-LHK, 2014 WL 2466559 (N.D. Cal. May 30, 2014) .................... 11

Brazil v. Dole Packaged Foods, LLC

No. 12-CV-01831-LHK, 2014 WL 5794873 (N.D. Cal. Nov. 6, 2014) ..................... 11

Briseno v. ConAgra Foods, Inc.

844 F.3d 1121 (9th Cir. 2017)...................................................................................... 9

Castro v. ABM Indus., Inc. 

No. 17-CV-3026-YGR, 2018 WL 2197527 (N.D. Cal. May 14, 2018) ...................... 6

Comcast Corp. v. Behrend

569 U.S. 27 (2013) .................................................................... 6, 7, 9, 11

Davidson v. Apple, Inc.

No. 16-CV-04942-LHK, 2018 WL 2325426 (N.D. Cal. May 8, 2018) ...................... 6

Donohue v. Apple, Inc.

871 F. Supp. 2d 913 (N.D. Cal. May 10, 2012) .......................................................... 11

Ellis v. Costco Wholesale Corp. 

285 F.R.D. 492 (N.D. Cal. 2012) ................................................................................ 15

Farar v. Bayer AG

No. 14-cv-04601, 2017 WL 5952876 (N.D. Cal. Nov. 15, 2017) ............................... 15

Ferrington v. McAfee, Inc.

No. 10-cv-01455, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010) .................................. 11

Hanon v. Dataproducts Corp.

976 F.2d 497 (9th Cir. 1992) ....................................................................................... 4

Herskowitz v. Apple, Inc.

301 F.R.D. 460 (N.D. Cal. 2014) ......................................................... 5, 15

In re eBay Seller Antitrust Litig.

2009 WL 2779374 (N.D. Cal. 2009) ........................................................................... 6

In re Cathode Ray Tube (CRT) Antitrust Litig.

308 F.R.D. 606 (N.D. Cal. 2015) ................................................................................ 9

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In re Cathode Ray Tube (CRT) Antitrust Litig.

No. 07–5944, 2013 WL 5391159 (N.D. Cal. Sept. 19, 2013) ..................................... 9

In re High-Tech Employee Antitrust Litig.

985 F. Supp. 2d 1167 (N.D. Cal. 2013) .............................................. 6, 7, 9, 10

In re: Lenovo Adware Litig.

No. 15-MD-02624-RMW, 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016) ..... 5, 9, 11, 12

In re Lidoderm Antitrust Litig. 

No. 14-MD-02521-WHO, 2017 WL 679367 (N.D. Cal. Feb. 21, 2017) ....... 7, 9, 11, 12

In re Mushroom Direct Purchaser Antitrust Litig.

No. 06-0620, 2015 WL 5767415 (E.D. Pa. July 29, 2015) ......................................... 9

In re MyFord Touch Consumer Litig.

291 F. Supp. 3d 936 (N.D. Cal. 2018) ......................................................................... 11

In re Optical Disk Drive Antitrust Litig.

No. 3:10-MD-2143 RS, 2016 WL 467444 (N.D. Cal. Feb. 8, 2016) .......................... 8

In re Qualcomm Antitrust Litig.

292 F. Supp. 3d 948 (N.D. Cal. 2017).......................................................................... 13

In re TFT-LCD Antitrust Litig.

267 F.R.D. 583 (N.D. Cal. 2010) ................................................................................. 15

Intel Corp. v. Hamidi

30 Cal. 4th 1342 (2003) .................................................................... 11, 12

Jamgotchian v. Slender

170 Cal. App. 4th 1384 (2009) .................................................................................... 14

Just Film, Inc. v. Buono

847 F.3d 1108 (9th Cir. 2017) ..................................................................................... 6

Kaczmarek v. Int’l Bus. Machines Corp.

186 F.R.D. 307 (S.D.N.Y. 1999) ................................................................................. 4

Kumar v. Salov N. Am. Corp. 

No. 14-CV-2411-YGR, 2016 WL 3844334 (N.D. Cal. July 15, 2016) ................ 7, 11

Lambert v. Nutraceutical Corp.

870 F.3d 1170 (9th Cir. 2017) ............................................................... 5, 8

Leyva v. Medline Industries

716 F.3d 510 (9th Cir. 2013) ....................................................................................... 6

Luna v. Marvell Tech. Grp., Ltd. 

No. C 15-05447 WHA, 2017 WL 4865559 (N.D. Cal. Oct. 27, 2017) ....................... 6

Mateo v. V.F. Corp. 

2009 U.S. Dist. LEXIS 105921 (N.D. Cal. Oct. 27, 2009) ............................... 3, 4

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Mazza v. Am. Honda Corp.

666 F.3d 581 (9th Cir. 2012) .......................................................... 12, 13, 14

McCann v. Foster Wheeler LLC

48 Cal. 4th 68 (2010) ................................................................................................... 14

Nedlloyd Lines B.V. v. Superior Court

3 Cal. 4th 459 (1992) ................................................................................................... 14

Negrete v. Allianz Life Ins. Co. of N. Am. 

238 F.R.D. 482 (C.D. Cal. 2006) ................................................................................ 8

Nitsch v. Dreamworks Animation SKG Inc.

315 F.R.D. 270 (N.D. Cal. 2016) ................................................................................ 7

Parsons v. Ryan

754 F.3d 657 (9th Cir. 2014) ....................................................................................... 15

Philips v. Ford Motor Co. 

No. 14-CV-02989-LHK, 2016 WL 7428810 (N.D. Cal. Dec. 22, 2016) .................... 11

Pulaski & Middleman, LLC v. Google, Inc.

802 F.3d 979 (9th Cir. 2015), cert. denied, 136 S. Ct. 2410 (2016) ............................ 11

Torres v. Mercer Canyons, Inc.

835 F.3d 1125 (9th Cir. 2016) ..................................................................................... 9

Trosper v. Styker Corp.

No. 13-CV-0607-LHK, 2014 WL 4145448 (N.D. Cal. Aug. 21, 2014) ..................... 7

VirnetX Inc. v. Apple Inc.

No. 6:12-cv-855, Dkt. 440 (E.D. Tex. Feb. 4, 2016) .................................................. 13

STATUTES, RULES AND REGULATIONS

Federal Rules of Civil Procedure

23(a)(3)......................................................................................................................... 2

23(b)(2)......................................................................................................................... 15

23(b)(3)......................................................................................................................... 15

Judicial Council of Cal. Civil Jury Instruction

§ 2101........................................................................................................................... 12

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I. INTRODUCTION 

Apple’s surreptitious and intentional implementation and execution of the FaceTime 

Break caused all Class members’ iPhone 4 and 4S devices to lose value. Apple, on the other 

hand, reaped significant financial benefits in the form of reduced relay fees, and joked about 

 its illegal conduct. The FaceTime Break affected every Class member in the same 

way. Plaintiffs’ damages model measures the harm caused by the FaceTime Break and therefore 

is closely tied to Plaintiffs’ single theory of liability. Accordingly, this case is ideally suited for 

class certification. 

II. ARGUMENT 

A. Apple’s Statement of Facts Contains Myriad Inaccuracies.

Apple’s statement of facts, though riddled with inaccuracies, fails to raise any issue 

sufficient to defeat class certification. First, Apple’s assertion 

 is contradicted 

by documents evidencing that 1

Second, 

Apple’s internal documents contradict its assertion that 

 Opp. at 4:2-4. 

 

2

 

 

3 This disproves Apple’s claim that it “worked diligently to rectify the 

problem as soon as it was discovered.” Opp. at 3:8-9.

4 Third, tacitly admitting that iOS 7 

impaired the performance of iPhone 4 and 4S devices, Apple claims that iOS 7.1 was “designed 

to improve performance for the iPhone 4.” Opp. at 3:21-22 (emphasis added). Yet Apple never 

 

1 Apple’s Opposition (ECF 198-4) (“Opp.”), at 2:21-23.

2 Manning Opening Decl. (ECF 174-1), Ex. 32 / 6/ 3 l “W l 

 

3 Reply Declaration of Jill M. Manning in Support of Plaintiffs’ Motion to Certify a Nationwide 

Class (“Manning Reply Decl.”), Ex. 78 (APL-GRACE_0024933, at 935). 

4 Apple’s assertion that it “considered several potential solutions for resolving” the impending 

digital certificate expiration” cites to “Pilmer Ex. 1.” However, there is no Exhibit 1 referenced 

in or attached to the Pilmer Declaration (Dkt. 201-1, 201-2). 

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claims—let alone establishes—that iOS 7.1 satisfactorily resolved the performance impairment 

inflicted on iPhone 4 and 4S devices by iOS 7. Potter’s testimony establishes that it did not.5

Finally, unable to deny that FaceTime calls on iOS 6 and earlier significantly increased 

its relay usage costs, Apple merely raises red herrings irrelevant to both the direct correlation 

between relay usage and relay usage cost, and the drastic reduction in both achieved by the 

FaceTime Break. Opp. at 3. 

 

 

 

 

 

 

8

B. Certification Under Rule 23(a) is Appropriate. 

 1. Plaintiffs Grace and Potter Are Typical of the Proposed Class. 

Apple’s atypicality arguments fundamentally misconstrue Plaintiffs’ claims. Under Rule 

23(a)(3)’s “permissive requirement,” Plaintiffs’ claims must be “‘reasonably co-extensive,’ not 

‘substantially identical’ with the proposed Class members’ claims.” Plaintiffs meet this 

requirement, as the FaceTime Break diminished the value of all iPhone 4 and 4S devices 

running on pre-iOS 7 operating systems by guaranteeing that all such devices either (i) lacked 

FaceTime, or (ii) suffered impaired performance after migrating to iOS 7 to restore FaceTime. 

Plaintiffs’ Motion (“Mot.”) (Dkt. 174), at 14:11-20. 

Apple’s conduct at issue in this case was identical as to the named Plaintiffs and the rest 

of the Class. Apple attempts to inject extraneous issues into the typicality inquiry by focusing 

 

5 Manning Reply Decl., Ex. 79 (Potter Tr.), at 165:21-166:20; 168:3-168:17. 

6 Manning Reply Decl., Ex. 80 (AKAM-0216); Ex. 81 (APL-GRACE_00012808); Ex. 82 

(AKAM-0214); Manning Opening Decl., Ex. 59 (APL-GRACE_00052811).

7 Manning Opening Decl., Ex. 10, at 794-95; Manning Reply Decl., Ex. 83 (APLGRACE_00013049). 

8 Manning Reply Decl., Ex. 84 (AKAM-0020). 

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on whether Ms. Grace “used FaceTime”9and “considered whether to restore FaceTime to her 

phone,” and by emphasizing Mr. Potter’s decision to “jail break” one of his two iPhone 4 

devices and his decisions regarding whether to migrate those devices to iOS 7. See Opp. at 7-9. 

None of those issues are relevant to the typicality inquiry because the execution and impact of 

the FaceTime Break and the diminution in value are common to all Class members regardless of 

their FaceTime usage, their device performance, or their decisions on whether to migrate to iOS 

7 after the FaceTime Break. 

Similarly, Plaintiff Potter’s decision to “jail break” one of his two iPhone 4 devices—and 

any purported “performance issues” resulting therefrom (Opp. at 9)—does not disqualify him as 

a class representative. Apple’s sole challenge to Potter’s non-jailbroken device is the length of 

time during which, as Apple admits, he was “deprived of using FaceTime on this device.” Opp. 

at 9:18. Apple’s argument that Potter’s deprivation was “momentary or threatened” and thus not 

a trespass to chattels misconstrues the claim and the law. Apple’s misconduct permanently

eliminated Class members’ access to FaceTime unless they upgraded to iOS 7, and diminished 

the value of all iPhone 4 and 4S devices affected by the FaceTime Break. 

Further, Apple’s argument as to Mr. Potter’s jailbroken device also fails.10 The inapposite 

cases cited by Apple on this point involve, e.g., a plaintiff who was personally responsible for 

the precise violations of company policy upon which her claims were based, and was thus 

subject to strong defenses that “threaten[ed] to overtake the merits of [the] litigation.”11 Here, 

 

9 Apple’s argument that Ms. Grace never made FaceTime calls on her iPhone 4 is incorrect. 

Opp. at 7:15. Ms. Grace testified that she made FaceTime calls, and the forensic analysis of her 

iPhone 4 devices identifies 42 FaceTime calls. Manning Reply Decl., Ex. 85 (SDDF003_6b); 

Ex. 86 (Grace Tr.), at 10:25-11:1; 77:20-22; 78:4-6; 78:24-79:2). 

10 Notably, Dr. Rubin merely speculates that jailbreaking a device might expose it to malware 

which “would clearly have had a strong impact on systems performance across a wide spectrum

of areas.” Rubin Decl. (ECF 200-2), ¶¶76-86. Dr. Rubin’s assertion, in addition to being 

irrelevant and unsupported, is suspect 

P Manning Reply Decl., Ex. 89 (Rubin Tr.), at 169:6-7, 169:14-17. M 

 

 Id., at 189:6-20.

11 Mateo v. V.F. Corp., 2009 U.S. Dist. LEXIS 105921, at *11-12 (N.D. Cal. Oct. 27, 2009) 

(quotation omitted). Apple’s two other cases on this issue are similarly inapposite. In 

Kaczmarek v. Int’l Bus. Machines Corp., the court denied certification of claims involving 

thousands of possible permutations “primarily” due to non-typicality issues, and the court’s 

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Apple cannot defend itself from the performance issues caused by iOS 7 by pointing out that a 

device might additionally be impaired by jailbreaking or overheating.12 Thus, far from 

“threaten[ing] to overtake the merits of [the] litigation” as they must to disqualify Plaintiff 

Potter from representing the Class (Opp. at 8:2), the possible performance issues for that device 

are irrelevant to the merits. 

2. Common Legal and Factual Issues Predominate.

(a) Individual Issues Do Not Predominate Over the Common Issues.

Apple’s predominance arguments focus on “performance-related issue[s] from restoring 

FaceTime” on the devices impacted by the FaceTime Break. Opp. at 10:10. Again, as set forth 

above, individualized performance-related issues are irrelevant to Plaintiffs’ claims and theory 

of damages. Further, Apple’s factual assertions regarding the impact of iOS 7.1 on device 

functionality are inappropriate for resolution on this motion, where Plaintiffs’ allegations 

regarding the impact of iOS 7—which “the court must take ... as true,” Mateo, 2009 U.S. Dist. 

LEXIS 105921, at *7—are supported by the record. See Mot. at 5-6. 

Next, as with its typicality argument, Apple concedes that the FaceTime Break inflicted 

“a deprivation of FaceTime” on the Class members, but mistakenly deems the duration of that 

deprivation the dispositive question on Plaintiffs’ trespass to chattels claim. Opp. at 11. Again, 

Plaintiffs’ trespass to chattels claim is premised on the impairment to the value of all iPhone 4 

and 4S devices affected by the FaceTime Break. And in any event, Apple’s arguments regarding 

Class members who might have sold or traded in their devices after the FaceTime Break falsely 

 

typicality analysis focused on the individualized “reliance upon any representation by IBM and 

the warranties received from IBM.” 186 F.R.D. 307, 310-11, 313 (S.D.N.Y. 1999). Unlike in 

this case, whether products were “altered or misused” mattered because the claims were 

premised on the performance of those products. Id. See also Hanon v. Dataproducts Corp., 976 

F.2d 497, 506-08 (9th Cir. 1992) (lead plaintiff in securities case seemingly purchased ten 

shares of company’s stock solely to bring lawsuit, creating “serious dispute” as to his ability to 

rely on key theory).

12 Apple’s attempt to connect Potter’s allegations of decreased device performance to 

jailbreaking is belied by the facts. Potter does not allege that his jailbroken device suffered from 

decreased performance. Rather, he alleges decreased performance from updating his second 

device, the device that was not jailbroken, to a version of iOS 7. Manning Reply Decl., Potter 

Tr., at 227:9-228:24. 

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assumes the “practical impossibility of identifying those individuals,” when in reality any 

disposals of Class members’ devices would be clearly reflected within Apple’s records, which 

include Class member-specific identification numbers that would indicate any transfer of a 

relevant device after the FaceTime Break. See, infra, fn. 36.

Regarding Plaintiffs’ UCL claim, Apple does not and cannot dispute that the claim arises 

from a uniform scheme, which courts have deemed sufficient to warrant certification of a class. 

See Mot. at 17-18; see also, e.g., Herskowitz v. Apple, Inc., 301 F.R.D. 460, 476 (N.D. Cal. 

2014) (“The focus of the UCL is on the defendant’s conduct and not the plaintiff’s damages”).13

Thus, Apple instead focuses on the harm inflicted by that uniform scheme, arguing that the 

proper inquiry must balance the “utility of the defendant’s conduct against the gravity of the 

harm to the alleged victim,” which involves individualized issues. Opp. at 12:11-12. This 

argument fails because it ignores that Apple’s conduct affected all Class members in the same 

way and harmed them in the same way—i.e., the diminution in value to their devices.

(b) Damages and Restitution Can be Calculated on a Class-Wide Basis.

Apple’s challenges to Plaintiffs’ damages model ignore the Ninth Circuit’s most recent 

decision governing such models. In Lambert v. Nutraceutical Corp., the Ninth Circuit reversed 

decertification holding that “[c]lass wide damages calculations under the UCL, FAL, and CLRA 

are particularly forgiving” and “require[] only that some reasonable basis of computation of 

damages be used ... even if the result reached is an approximation.” 870 F.3d 1170, 1183 (9th 

Cir. 2017) (quotation omitted).14 This Court applied those same principles in certifying the 

 

13 Herskowitz, in which the claims were fraught with predominant individualized inquiries, is 

distinguishable. 301 F.R.D. at 471, 474, 476 (holding, e.g., that plaintiffs “failed to provide any 

evidence to support the existence of a uniform business practice,” that “the critical question of 

assent or non-assent turns on an individualized inquiry for each customer”).

14 In Lambert, the damages model was based on the average retail price of the product 

purchased by the class members. Id. at 1183. The plaintiff failed to produce evidence of the 

actual retail prices, instead presenting evidence of “the suggested retail price over the relevant 

time period.” Id. The Ninth Circuit held that “such a precise average is unnecessary for class 

certification. At this stage, the question is only whether Lambert has presented a workable 

method.” Id. at 1184. (Emphasis added.)

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plaintiffs’ UCL claims in In re: Lenovo Adware Litig., No. 15-MD-02624-RMW, 2016 WL 

6277245, at *21 (N.D. Cal. Oct. 27, 2016). 

Tellingly, Apple neither challenges Dr. Hastings’ qualifications as an economist or her 

methodology, nor offers its own report from an expert economist. Instead, Apple offers only the 

opinions of Dana Trexler—a CPA who is not an economist, 

 and did not identify a superior damages methodology.15

 (i) Apple’s Comcast Argument Fails. Apple argues that Plaintiffs’ 

model fails to comply with Comcast Corp. v. Behrend, 569 U.S. 27 (2013) because it 

purportedly is not tied to Plaintiffs’ theory of liability.16 Unlike in Comcast, Plaintiffs have a 

single theory of liability (the FaceTime Break) and a damages model that measures the harm 

arising from that single theory. Castro v. ABM Indus., Inc., No. 17-CV-3026-YGR, 2018 WL 

2197527 (N.D. Cal. May 14, 2018) (rejecting Comcast challenge although damages model 

“would result in uniform damages regardless of cell phone usage and plan cost.”); Luna v. 

Marvell Tech. Grp., Ltd., No. C 15-05447 WHA, 2017 WL 4865559, at *6 (N.D. Cal. Oct. 27, 

2017) (“[u]nlike Comcast, in which a damage figure was calculated assuming theories of 

liability that had since been eliminated from the case, lead plaintiff’s proposed damages model 

relies on but one theory of liability.”)17

 

15 Manning Reply Decl., Ex 88 (Trexler Tr.), at 42:25-43:7, 45:9-11. 86:10-87:10. Even where a 

defendant creates a legitimate “battle of the experts” by offering a conflicting damages 

regression model from an economist, class certification is still appropriate. In re eBay Seller 

Antitrust Litig., 2009 WL 2779374, at *1 (N.D. Cal. 2009) (the court must leave “disputes over 

the results reached and assumptions made with respect to competing methodologies to the trier 

of fact, and discern only whether the plaintiffs have advanced a plausible methodology”). 

16 As an initial matter, “[t]he Ninth Circuit, in line with the Supreme Court’s admonition that 

Comcast created no new law, read Comcast narrowly in Leyva v. Medline Industries[.]” In re 

High-Tech Employee Antitrust Litig., 985 F. Supp. 2d 1167, 1184 (N.D. Cal. 2013). Leyva held 

that Comcast only requires plaintiffs to “show that their damages stemmed from the defendant’s 

actions that created the legal liability.” 716 F.3d 510, 514 (9th Cir.2013); Just Film, Inc. v. 

Buono, 847 F.3d 1108, 1121 (9th Cir. 2017) (“Plaintiffs need only show that damages can be 

determined without excessive difficulty and attributed to their theory of liability ....”).

17 The only case Apple cites in support of its erroneous argument, Davidson v. Apple, Inc., No. 

16-CV-04942-LHK, 2018 WL 2325426 (N.D. Cal. May 8, 2018), is inapposite. In Davidson, 

the plaintiffs alleged that Apple’s failure to disclose an alleged touchscreen defect caused 

consumers to overpay for iPhone devices, and sought certification based on a conjoint analysis 

of a consumer survey. Id. at 21. The Court found the plaintiffs’ damages model deficient 

because the underlying survey falsely assumed that all class members’ phones suffered the 

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Apple argues that Plaintiffs’ model “calculates only the diminution in value for all

iPhone 4 and 4S devices,” rather than just those running on pre-iOS 7 versions of iOS prior to 

the FaceTime Break. Opp. 14 (emphasis in original). In doing so, Apple mischaracterizes 

Plaintiffs’ claims and the multivariate regression model. Dr. Hasting’s model uses price data 

before and after the FaceTime Break and applies a multivariate regression analysis to control for 

other variables and isolate the diminution in value caused by the Break. See Hastings Reply 

Report, ¶¶ 13-15, 19, 21-23, 47, 56. The model, therefore, complies with Comcast because it 

isolates the diminution of value attributable to the Plaintiffs’ theory of liability, i.e., the 

FaceTime Break. See Nitsch v. Dreamworks Animation SKG Inc., 315 F.R.D. 270, 304 (N.D. 

Cal. 2016); High-Tech, 985 F.Supp.2d at 1207-08, 1224-26; Kumar v. Salov N. Am. Corp., No. 

14-CV-2411-YGR, 2016 WL 3844334, at *10 (N.D. Cal. July 15, 2016); Trosper v. Styker 

Corp., No. 13-CV-0607-LHK, 2014 WL 4145448, at *17 (N.D. Cal. Aug. 21, 2014).

18

Apple’s argument that Plaintiffs’ model does not support predominance because Class 

members could have restored FaceTime by migrating to iOS 7 similarly fails. As the evidence

demonstrates, installing iOS 7 did not alleviate the diminution in value caused by the FaceTime 

Break because doing so significantly impaired device performance.

19 Thus, as discussed supra, 

Class Members’ post-FaceTime Break decisions regarding migration to iOS 7 are irrelevant.

Indeed, this Court rejected essentially the same argument in denying Apple’s motion to dismiss. 

Dkt. 65 at 22.

 

touchscreen defect, whereas the evidence showed a mere “5.6 percent or less chance that 

consumers would experience the touchscreen defect.” Id. at *22-23. Here, the evidence 

demonstrates that all Class members were affected by the FaceTime Break in the same way. 

18 That non-class members’ iPhone 4 and 4S devices may have suffered a diminution in value is 

not surprising, but rather consistent with market efficiencies and demand and supply factors.

Hastings Expert Report (ECF 174-85), at ¶ 30. While Comcast requires that a damages model 

measure only the loss to class members caused by the misconduct giving rise to the claims in 

the case, the loss need not be suffered exclusively by the class members. See In re Lidoderm 

Antitrust Litig., No. 14-MD-02521-WHO, 2017 WL 679367, at *24 (N.D. Cal. Feb. 21, 2017)

(damage model satisfied Comcast although defendant’s conduct injured both class members and 

consumers in states not included in the class).

19 See, e.g., Mot. at 5:7-6:11 (and exhibits cited therein); Manning Reply Decl., Ex. 79 (Potter 

Tr.), at 165:21-166:20; 168:3-168:17); Hastings Reply Report, ¶¶ 17, 36-37.

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 (ii) Ms. Trexler’s Attacks on Dr. Hastings’ Regression Model Fail.

Ms. Trexler’s attacks on Plaintiffs’ damages model collapse under scrutiny. Her 

complaints about the data used in Dr. Hastings’ analysis assume a burden far exceeding that 

applicable at the class certification stage and cannot justify rejecting the model outright. That 

additional data may be added to the model as discovery continues is not a reason to reject the 

model outright.20 In fact, Dr. Hastings’ model is robust; it yields sensible results which are 

consistent when applied to data sets from a range of companies representing the three different 

categories of smart phone resellers (carrier – AT&T; retailer – Best Buy; and on-line 

resellers – Amazon and EcoATM) and collectively containing over 10 million observations.21

Ms. Trexler’s related opinion that the regression model is deficient because Dr. Hastings 

analyzed iPhone 4 and 4S resale prices rather than trade-in prices similarly fails. Such criticism 

of the specific data used cannot invalidate an expert damages model or defeat class 

certification.22 In any event, resale prices are the appropriate measure of the value of the 

devices. As Dr. Hastings opines (and testimony from smart phone resellers confirms), resale 

prices reflect the market value of the devices.23

 

 

24 Ms. Trexler nevertheless claims in her 

 

20 Bernstein v. Virgin Am., Inc., No. 15-CV-02277-JST, 2016 WL 6576621, at *6 (N.D. Cal. 

Nov. 7, 2016); Lidoderm, 2017 WL 679369, at *12. 

21 Adding the data produced by AT&T and EcoATM into the regression supports the model and 

its conclusions. Hastings Reply Report, ¶¶ 35, 51, 61. 

22 See e.g., Lambert, 870 F.3d at 1184 (reversing decertification although the plaintiffs’ 

damages model relied on suggested retail prices instead of actual average retail prices); Negrete 

v. Allianz Life Ins. Co. of N. Am., 238 F.R.D. 482, 494 (C.D. Cal. 2006); In re Optical Disk 

Drive Antitrust Litig., No. 3:10-MD-2143 RS, 2016 WL 467444, at *7 (N.D. Cal. Feb. 8, 2016) 

(rejecting attack on regression model based on expert’s “selection of particular data to utilize, 

the variables he has elected to include in his regressions.”).

23 Hastings Reply Report, ¶¶ 36-38. Trade-in data necessarily involves a second-step transaction 

that could affect the actual value of iPhone devices. Specifically, trading in an iPhone typically 

involves: a) only receiving in-store credit for the device, and b) the customer’s receipt of a new 

device, usually in connection with the payment of additional money and/or the signing of a 

contract. Requiring any value given to remain in-store allows unidentifiable promotions to be 

included in the trade-in value. This, and the fact that redemption of the store credit usually 

requires additional payments, compromises the trade-in price as an indicator of device value. 

24 Manning Decl., Ex. 88 (Trexler Tr.), at 178:23 – 179:10, 181:23-24; Hastings Reply Report, 

¶¶26-30; 48-50. 

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Report that Dr. Hastings’ analysis (i) fails to consider promotions and news that “likely would 

affect the resale prices of the iPhone 4 and 4S” (Opp. at 17:6-18), and (ii) “fails to control for 

whether a phone was jailbroken, damaged, or had undergone unauthorized repair.” Opp. at

16:23-24. As this Court held in High-Tech, however, a defendant’s assertion that the damages 

model fails to include certain variables “is a prototypical concern that goes to weight, not 

admissibility” and does not demonstrate that the “model is inconsistent with Plaintiffs’ theory of 

harm.” 2014 WL 1351040, at *19 (citing Bazemore v. Friday, 478 U.S. 385, 400 (1986)).25

Here, Dr. Hastings’ regression controls for “751 factors, all of which are factors that market 

participants, like Best Buy, state are important demand and/or supply factors impacting the price 

of phones.” Hastings Reply Report, ¶ 43. Moreover, Dr. Hastings expanded the model to 

include additional variables that control for new phone promotions and the results remain 

consistent. Id., ¶ 28. Further, the evidence gleaned thus far in discovery demonstrates that only 

 % of iPhone owners “jailbroke” their devices. Id., ¶ 30. In any event, Apple’s argument is 

irrelevant because it is directed at the amount of damages, not the methodology for estimating 

damages. And the inclusion in the class of devices that might have no value (jailbroken or not) 

would not defeat class certification.26 Courts in this Circuit repeatedly have held that individual 

issues related to the amount of damages do not defeat class certification.27 Thus, Dr. Hastings’ 

model controls for the factors that affect phone prices and any individualized issues related to 

 

25 See also, e.g., In re Mushroom Direct Purchaser Antitrust Litig., No. 06-0620, 2015 WL 

5767415, at *10 (E.D. Pa. July 29, 2015) (defendants’ argument that expert’s damages 

regression model improperly omitted variables could not defeat class certification); Lidoderm, 

2017 WL 679367, at *12 (“the experts dispute what the appropriate inputs should be does not 

undermine the approach or the reliability of Leitzinger’s model.”).

26 See, e.g., Torres v. Mercer Canyons, Inc., 835 F.3d 1125, 1136-37 (9th Cir. 2016) (uninjured 

class members in class did not preclude predominance finding); Lenovo, 2016 WL 6277245, at 

*15 (certifying a class of computer purchasers over defendants’ objections that some class

members were uninjured); In re Cathode Ray Tube (CRT) Antitrust Litig., 308 F.R.D. 606, 615 

(N.D. Cal. 2015) (“[e]ven if some individuals are thus able to join the class and then are later 

determined to not have valid claims ..., this does not preclude class certification.”).

27 In re Cathode Ray Tube (CRT) Antitrust Litig., No. 07–5944, 2013 WL 5391159, at *6–7 

(N.D. Cal. Sept. 19, 2013) (“[N]either Comcast nor any other precedent requires the [plaintiffs] 

to provide exact calculations of their damages at the class certification stage.”).

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damages can be addressed during claims administration. See, e.g., Briseno v. ConAgra Foods, 

844 F.3d 1121, 1131-32 (9th Cir. 2017).

Ms. Trexler’s suggestion that the value of iPhone 4 and 4S devices increased following 

the FaceTime Break is illogical, incorrect and further demonstrates her misunderstanding of Dr. 

Hastings’ analysis. Hastings Reply Report, ¶¶ 23, 32-34. Ms. Trexler’s apparent reliance on an 

“‘eyeball” method in forming this opinion – “simply looking at aggregated measures of prices 

with no statistical analysis and no attempt to control for potentially confounding factors” – is 

not an economically sound measure of diminution in value. Id., ¶¶ 14-16, 24-26. In fact, Ms. 

Trexler’s opinion is flawed because she has made unsupported assumptions about the data (Id., 

¶¶ 25, 52), and the prices reflect discounts and tie-ins to in-store purchases, not the market value

of the devices. Id., ¶¶ 36-38.

The remainder of Apple’s arguments similarly (and improperly) address the quality of the 

data, not the regression model itself. See, e.g., Opp. at 15:15-16 (asserting that Dr. Hastings is 

“using inapposite data”, using the wrong benchmark price, and “ignoring data inconvenient to 

her conclusions ...”). If this were true (and it is not), one would expect Apple to perform its 

own regression analysis using purportedly “appropriate” data and benchmarks to demonstrate 

alleged flaws in Dr. Hastings’ analysis. Hastings Reply Report, ¶¶ 53-54. Ms. Trexler’s 

unwillingness and/or inability to do so underscores that her opinions lack merit. Manning Reply 

Decl., Ex. 88 (Trexler Tr.), at 119:1-10. As set forth above, additional data may be added to the 

model as discovery continues.28

Ms. Trexler’s criticism of Dr. Hasting’s use of averages to calculate damages is 

unconvincing. See High-Tech, 985 F.Supp.2d at 1217. In any event, during the claims 

administration process, the percentage diminution in value may be applied to each class 

member’s device to determine each class member’s damages, taking into account the same 

 

28 Ms. Trexler’s opinion that Dr. Hastings “arbitrarily” selected the damages period is belied by 

Dr. Hastings’ testimony that she relied on data available to her, which had a December 31, 2016 

end date. Hastings Reply Report, ¶¶ 7, 43.

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handful of key characteristics that Apple itself uses to determine the price of a phone (model 

and condition).29 Id., ¶¶ 29, 31, 59-61. 

Thus, Dr. Hastings has demonstrated “how [she] can (at summary judgment and trial) 

calculate classwide aggregate damages [and] ... has made a solid preliminary showing of 

impact and demonstrated a reliable method that can accommodate future judicial rulings, 

findings of fact, and changes to class membership or damages depending on opt-outs and 

assignments to prove aggregate damages on a common and classwide basis.” Lidoderm, 2017 

WL 679367, at *13.

 (iii) Apple’s Restitution-Based Arguments Fails. Apple’s argument 

that Plaintiffs cannot use the same damages model for its UCL and trespass to chattels claims 

fails under Ninth Circuit law. Diminution in value is the appropriate measure of damages in this 

case for trespass to chattels and restitution under the UCL.30 Apple’s incorrect argument that 

restitution is limited to “the difference between the price plaintiffs paid and the value of the 

product they received”31 is based on readily distinguishable case law.32 Unlike Brazil, (i) this is 

 

29 See, e.g., https://www.apple.com/shop/trade-in. 

30 See e.g., Pulaski & Middleman, LLC v. Google, Inc. 802 F.3d 979, 989 (9th Cir. 2015), cert. 

denied, 136 S. Ct. 2410 (2016) (finding diminution in value model to calculate restitution under 

the UCL consistent with Comcast); Lenovo, 2016 WL 6277245, at *9 (conduct that 

“significantly degraded the performance of the Lenovo computers” caused a measurable loss for 

a trespass to chattels damages claim); Intel v. Hamidi, 30 Cal. 4th 1342, 1389 (2003) (damages 

for trespass to chattels when “there is impairment to the ‘quality’ or ‘value’ of the chattel.”); In 

re MyFord Touch Consumer Litig., 291 F. Supp. 3d 936, 971–72 (N.D. Cal. 2018); Kumar, 

2016 WL 3844334, at *10; Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 919–20 (N.D. Cal. 

May 10, 2012) (“the diminution in the value of plaintiff’s phone resulting from the defect,” 

although likely “minor,” was “at least in theory—calculable.”).

31

 

 

Manning Reply Decl., Ex. 88 (Trexler Tr.) at 9:10-21, 85:17-86:9, 163:15-164:14, 182:15-20.

32 Brazil v. Dole Packaged Foods, 12-cv-01831-LHK, 2014 WL 5794873, at *6 (N.D. Cal. Nov. 

6, 2014) is also distinguishable because, e.g., the regression model did not consider any “other 

variable affecting price.” Here, as explained above, Dr. Hastings’ model does control for other 

demand and supply factors. Equally inapposite is Philips v. Ford Motor Co., No. 14-CV-02989-

LHK, 2016 WL 7428810 (N.D. Cal. Dec. 22, 2016), where the Court rejected the expert’s 

damages methodology because it erroneously assumed that “the true value of the EPAS systems 

was $0” although he failed to even state, let alone justify, “the conclusion that this assumption is 

correct.” Finally, in Ferrington v. McAfee, Inc., the Court denied a motion to dismiss, holding 

that plaintiffs had standing to assert a UCL claim although they paid no money directly to 

defendant. 10-CV-01455, 2010 WL 3910169, at *8 (N.D. Cal. Oct. 5, 2010). Here too, even if 

certain Class member may not have purchased their iPhones directly from Apple, Apple receives 

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not a false advertising case brought under the “deceptive” prong of the UCL, and (ii) Plaintiffs 

are not attempting to isolate the price premium of an allegedly false label. Accordingly, as this 

Court noted in denying Apple’s motion to dismiss, given Plaintiffs’ claims here, diminution in 

value is a valid measure of restitution.

3. Apple’s Attempts to Defeat a Nationwide Class Fail.

Apple does not dispute that Plaintiffs met their burden to show that California has 

significant contact to the claims of each Class member, satisfying the due process requirements 

of applying California law nationwide. Mazza v. Am. Honda Corp., 666 F.3d 581, 589 (9th Cir. 

2012). The burden thus shifts to Apple to demonstrate the specific circumstances that mandate 

the application of foreign law. Id. at 590. Apple has failed to meet its burden.

(a) There Are No Material Differences Among State Trespass to Chattels

Laws.

Under the first prong of California’s governmental interest test, “[a] problem only arises 

if differences in state law are material, that is, if they make a difference in this litigation.” See 

Mazza, 666 F.3d at 590. Trespass to chattels is a common law claim, for which California has 

adopted the nationwide Restatement 2d of Torts’ rules. Hamidi, 30 Cal. 4th at 1351-52; Lenovo, 

2016 WL 6277245, at *8 (explaining that CA and NY elements for trespass to chattels are “very 

similar”). The variations in state law that Apple asserts do not constitute the outcomedeterminative differences that are necessary to establish a material conflict. See Dkt. 201-7 at 

27-31. Apple claims there are different interpretations of the intent requirement, yet the 

authority it cites confirms that states consistently require intentional interference with property 

as an element of a trespass to chattels claim. Compare Judicial Council of Cal. Civil Jury 

Instructions § 2101 (requiring intentional interference with property as an element of trespass to 

chattels); with Dkt. 201-7 at 27-28 (consistently requiring intentional acts as an element of 

trespass to chattels). Furthermore, under the facts of this case—where Apple intentionally 

damaged iPhone devices—it is irrelevant whether some states require “Actual Damages for 

 

money from the purchase of each iPhone and thus can be liable for restitution and diminution in 

value.

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Claim to be Actionable” but others merely require “Any Interference” to be actionable. Dkt.

201-7 at 29-30. The differences in the applicable state laws are not material. Even if they were, 

they could be addressed on a special verdict form or “through other mechanisms routinely 

employed in complex litigations like this one.” Lidoderm, 2017 WL 679367, *27.33

The only other difference Apple identifies relating to trespass to chattels is that certain 

states have different statutes of limitations, with the shortest being Louisiana’s one-year bar. 

Dkt. 201-7 at 30-31. However, this variation also makes no “difference in this litigation,”

Mazza, 666 F.3d at 590, because Plaintiffs meet even the shortest limitations period. Louisiana 

applies the “discovery rule” to its statute of limitations, such that the prescriptive period does 

not begin to run until “the date the injured party discovers or should have discovered the facts 

upon which his cause of action is based.” Body by Cook v. Ingersoll-Rand Co., 39 F. Supp. 3d 

827, 836 (E.D. La. 2014). The first opportunity for Class members to reasonably discover the 

facts surrounding their injury would not have been until May 9, 2016, the date of release of the 

transcripts reflecting in-trial public revelations about Apple breaking FaceTime. VirnetX Inc. v. 

Apple Inc., No. 6:12-cv-855, Dkt. 440 (E.D. Tex. Feb. 4, 2016). Because this action was filed 

less than a year later, on February 2, 2017, Plaintiffs meet the shortest possible limitations 

period, rendering irrelevant any difference among the state laws in this regard. 

(b) California Has the Predominate Interest in Applying its Law.

Even if a true conflict exists, Apple has failed to meet its burden on the final prong of 

the government interest test, i.e., to prove that a foreign state has a greater interest in applying 

 

33 Similarly, regarding the second prong, Apple’s assertion that in some instances other states’ 

protections for both types of Plaintiffs’ claims exceed California’s fails to establish any true 

conflict of state interests. Opp. at 23. Even if Apple could conceivably be liable in another state 

for conduct less egregious than the misconduct at issue here, foreign residents are adequately 

protected because Apple is liable in this matter asserted under California law. This case is more 

akin to In re Qualcomm Antitrust Litig. than to Mazza. In Qualcomm, as here, the “sole 

defendant [was] a California resident,” which did not meet “its burden of showing that other 

states have an interest in having their laws applied” because “applying other states’ laws to bar 

recovery here would paradoxically disadvantage the other states’ own citizens for injuries 

caused by a California defendant’s unlawful activities that took place primarily in California.” 

292 F. Supp. 3d 948 at 979-80 (N.D. Cal. 2017). Because no true conflict exists between any 

foreign state’s interests and those of California, California law applies here.

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its laws to this case than California. Under California’ government interest test, “the place of the 

wrong has the predominant interest” and “the ‘place of the wrong’ [is] the state where the last 

event necessary to make the actor liable occurred.” See Mazza, 666 F.3d at 593. 

In this case, the “last event” is one of: 

 

 

 Dkt. 174 at 6-9. Regardless of which is deemed the “last 

event,” all occurred in California. Apple’s claim that the UCL claims accrued where Apple’s 

customers purchased their devices because potential UCL liability first accrued at purchase 

(Opp. at 22) fails because the test is where liability finally, actually accrues. Mazza, 666 F.3d at 

593. Apple incorrectly argues that trespass to chattels claims accrue where the damages are 

suffered.34 In McCann v. Foster Wheeler LLC, a mesothelioma victim’s claim accrued where he 

was exposed to asbestos (i.e., Oklahoma) rather than California, where many years later, he was 

diagnosed with the disease. 48 Cal. 4th 68, 74 (2010). The McCann court made clear that the 

interests of Oklahoma (where the last event necessary to accrue liability occurred) predominated 

over the interests of California (where the harm resulting from the misconduct was suffered). Id. 

at 96-102. Accordingly, California’s interest predominates.35

 

34 For this proposition, Apple quotes Jamgotchian v. Slender, 170 Cal. App. 4th, 1384, 1401 

(2009), which states that trespass to chattels “lies where an intentional interference with the 

possession of personal property has proximately caused injury.” The court was merely 

describing the scenario in which conduct can give rise to a trespass to chattels claim, not 

assigning trespass claims to the location of the injury. 

35 Application of California law to Plaintiffs’ claims pursuant to the governmental interest test is 

also consistent with the parties’ agreement. California courts recognize that when parties to a 

contract include a choice of law clause, the chosen law should apply to all causes of action 

arising from or related to that agreement. Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 

470 (1992). Here, Apple, clearly contemplated applying California law to any and all claims 

arising out of its iOS Software License Agreement (iOS Agreement”) (see ECF 35-1), as Apple 

(unsuccessfully) argued that the iOS Agreement barred the specific claims asserted by Plaintiffs 

here. See, e.g., ECF 65 at 10-14. Under Section 12 titled “Controlling Law and Severability,”

the iOS Agreement states “[t]his License will be governed by and construed in accordance with 

the law of the State of California. ECF 35-1. Like in Nedlloyd, Apple’s “governed by” language 

clearly shows its intent to have California law apply. Nedlloyd, 3 Cal. 4th at 465. 

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4. Class Members Are Identifiable and Ascertainable.

Apple’s claim that it is “impossible” to determine Class membership (Opp. at 24:8-9) is 

plainly false, as Apple already produced a “comprehensive list” of Class members.36 Further, 

Apple’s assertion that there is no method of identifying which Class members still own their 

affected devices is irrelevant, as Class membership is dictated by ownership as of April 16, 

2014. And Apple’s claim that certain Class members traded in their affected devices after the 

FaceTime Break is of no moment because they are ascertainable and still have a valid claim. 

C. Certification Under Rule 23(b)(2) Is Appropriate.

Plaintiffs have identified two potential forms of injunctive relief: requiring Apple to (i) 

disclosure when certificates are programmed to expire and what features will be affected; and 

(ii) allow iPhone devices to install earlier iOS versions.37 These remedies would mitigate both

of Apple’s ongoing exploitation of device expiration dates, and the Hobson’s Choice imposed

on all Class members by the FaceTime Break. Plaintiffs properly seek certification of their 

claims for restitution and damages under Rule 23(b)(3) and certification of their injunctive relief 

claim under 23(b)(2).38 “It is possible to certify the injunctive aspects of the suit under Rule 

23(b)(2) and the damages aspects under Rule 23(b)(3), achieving both consistent treatment of 

class-wide equitable relief and an opportunity for each affected person to exercise control over 

the damages aspects.”’39 The Class members are entitled to injunctive relief to remedy “policies 

or practices that are generally applicable to [them] as a whole.” Parsons, 754 F.3d at 688.

 

36 See Manning Reply Decl., Ex. 93 at 2:5-14; Manning Opening Decl., Ex. 70. 

37 See Manning Reply Decl., Ex. 87 at 35:9-24.

38 In Herskowitz, plaintiffs sought “an injunction solely to enable individual class members to 

seek refunds from Apple,” which is “practically indistinguishable from an order that Apple pay 

Plaintiffs money.” 301 F.R.D. at 482. Here, the injunctive relief sought is distinct from 

monetary relief and would change “policies or practices that are generally applicable to the class 

as a whole.” Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014).

39 In re TFT-LCD Antitrust Litig., 267 F.R.D. 583, 596 (N.D. Cal. 2010); see also Farar v. 

Bayer AG, No. 14-CV-04601-WHO, 2017 WL 5952876 (N.D. Cal. Nov. 15, 2017) (certifying 

both Rule 23(b)(2) and 23(b)(3) classes in false advertising case); Ellis v. Costco Wholesale 

Corp., 285 F.R.D. 492, 538, no. 37 (N.D. Cal. 2012) (“in an appropriate case, a Rule 23(b)(2) 

class and a Rule 23(b)(3) class may be certified where there is a real basis for both damages and 

an equitable remedy.”) (internal quotations omitted).

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III. CONCLUSION

For these reasons and those set forth in their moving papers, Plaintiffs respectfully 

request that the Court grant their motion.

Dated: July 13, 2018 Respectfully submitted,

By: /s/ Jill M. Manning

 Jill M. Manning

STEYER LOWENTHAL BOODROOKAS

 ALVAREZ & SMITH LLP 

Allan Steyer (State Bar No. 100318)

D. Scott Macrae (State Bar No. 104663)

One California Street, Suite 300 

San Francisco, CA 94111 

Telephone: (415) 421-3400

asteyer@steyerlaw.com

jmanning@steyerlaw.com

smacrae@steyerlaw.com

PEARSON, SIMON & WARSHAW, LLP

Bruce L. Simon (State Bar No. 96241)

Daniel L. Warshaw (State Bar No. 185365)

Alexander L. Simon (State Bar No. 305734)

44 Montgomery Street, Suite 2450

San Francisco, CA 94104

Telephone: (415) 433-9000

bsimon@pswlaw.com

dwarshaw@pswlaw.com

asimon@pswlaw.com

FRIEDMAN OSTER & TEJTEL PLLC

David F.E. Tejtel (admitted pro hac vice)

240 East 79th Street, Suite A 

New York, New York 10075

Telephone: (646) 661-5881

Email: dtejtel@fotpllc.com

CALDWELL CASSADY & CURRY

Bradley W. Caldwell (admitted pro hac vice)

Jason D. Cassady (admitted pro hac vice)

John Austin Curry (admitted pro hac vice)

2101 Cedar Springs Road, Suite 1000

Dallas, Texas 75201

Telephone: (214) 888-4848

bcaldwell@caldwellcc.com

jcassady@caldwellcc.com

acurry@caldwellcc.com

Counsel for Plaintiffs and Proposed Counsel for 

the Class

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CERTIFICATE OF SERVICE

On July 13, 2018, I electronically filed the foregoing with the Clerk of the Court by 

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

for ECF. 

By: /s/ Suneel Jain

 Suneel Jain

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