In a reply brief filed late last week, Apple rejected claims that it consented to a damages trial in Judge Denise Cote’s Manhattan courtroom, or that its conduct represented a waiver of its right to have the trial moved.
“The thrust of Plaintiffs’ opposition is that Apple implicitly waived its right to seek remand…and consented to trial of the remaining claims,” Apple attorneys argue. But Apple “did not, and could not,” waive what Apple maintains is in fact a “mandatory statutory remand.”
In its brief, Apple says it “explicitly notified Plaintiffs of its objections to trial in this forum,” in its November, 2013, answer to the Class Plaintiffs’ amended consolidated complaint, “roughly seven months before trial was scheduled to begin.”
Apple, however, also concedes that it once “admitted in its answers to the original class action,” that a trial in New York would be proper, but argues that “does not constitute waiver.” There may be more than one proper venue, Apple argues, and admitting this fact is “not mutually exclusive with an intent to seek remand at a later stage of the proceedings.”
Further, Apple also acknowledged that it once submitted a proposed schedule order for a New York trial last year, but once again argues that does not constitute a waiver. “Apple specifically reserved the right to raise all available defenses based on improper venue.”
In their reply seeking to keep the proceedings in New York, the class plaintiffs argue that moving the trial at this point would represent a waste of judicial resources, and would unfairly burden the plaintiffs. Apple rejected that assertion. “Apple would not derive any unfair benefit from its remand request, nor would it impose an unfair detriment on Plaintiffs,” Apple argues. “The class was clearly on notice that Apple would object to trial in this venue."
Last month, Apple attorneys argued that 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.
A damages trial is currently on the trial calendar for May in Judge Denise Cote's Manhattan courtroom.