Apple is seeking to escape from New York: In a filing made public this week, Apple has moved to have its pending state and class action trial over e-book price-fixing damages remanded to the courts they originated in. For the consumer class action, that would mean a potential home court advantage for Apple, as the case would be moved to the Northern District of California, while the states' action could be moved to the Western District of Texas.
In an order yesterday, Judge Denise Cote set the deadline for any opposition to Apple's suggestion of remanding the case for March 7, with replies due March 14.
Citing a Supreme Court decision [Lexecon], Apple attorneys argue that the case management order that brought the federal, state, and class action cases together in New York applied to pretrial activity only. Thus, any upcoming damages trials in the consumer and state actions should be moved from the Southern District of New York (where Apple has not fared well so far) to Northern California, where the first class action suit from Hagens Berman was filed in 2011, and to the Western District of Texas, where the states' action is based.
“The [New York] Court never entered an order consolidating the class actions and States’ action (except insofar as it overlapped with the DOJ’s liability case) for any purpose other than pretrial proceedings,” the Apple’s brief states. “[The New York] Court’s primary purpose, the coordination of consolidated pretrial discovery in the State and class actions, is complete.”
In addition to filing a motion to have the remaining damages trials remanded to their original Northern California and Texas jurisdictions, Apple filed its opposition to the state and consumer class action motions for summary judgment. That motion, however, was filed under seal and is not yet public.
But while Apple did file its opposition to the plaintiffs' summary judgment motions in New York, it also argued that the motions present “questions of law closely intertwined with trial proceedings,” and therefore should not be decided by Judge Cote in New York, but “by the court that will conduct the trial.”
The filing acknowledges that Apple’s remaining motion to dismiss the class action case against it, as well as the plaintiff’s motion for class certification (which Apple has opposed) are still pending before Judge Cote. But after Judge Cote issues rulings on those motions, Apple argues, any case going forward to trial should be remanded to courts in Northern California and Texas before April 11, 2014, when the parties are scheduled to submit joint pretrial orders, as required by this Court’s trial procedures.
After that April 11 date, Apple maintains, all pretrial proceedings will have “run their course,” and it would be “an exercise in futility for the parties to submit papers governing the conduct of a trial over which this Court has no jurisdiction.”
Currently, Apple is on track for a May, 2014 trial for damages, following Judge Denise Cote's July, 2013 ruling that Apple was the "ringmaster" of a conspiracy with five major publishers to fix e-book prices. The plaintiffs have put Apple's liability between $697 million and $840 million.
