ITunes Anti-Trust Plaintiff Filing in Response To Apple Motion To Dismiss

Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page1 of 6
1 ROBBINS GELLER RUDMAN

& DOWD LLP
2 BONNY E. SWEENEY (176174)
ALEXANDRA S. BERNAY (211068)
3 CARMEN A. MEDICI (248417)
JENNIFER N. CARINGAL (286197)
4 655 West Broadway, Suite 1900
San Diego, CA 92101
5 Telephone: 619/231-1058
619/231-7423 (fax)
6 bonnys@rgrdlaw.com
xanb@rgrdlaw.com
7 cmedici@rgrdlaw.com
jcaringal@rgrdlaw.com
and
8
PATRICK J. COUGHLIN (111070)
9 STEVEN M. JODLOWSKI (239074)
Post Montgomery Center
10 One Montgomery Street, Suite 1800
San Francisco, CA 94104
11 Telephone: 415/288-4545
415/288-4534 (fax)
12 patc@rgrdlaw.com
sjodlowski@rgrdlaw.com
13
Class Counsel for Plaintiffs
14
[Additional counsel appear on signature page.]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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THE APPLE IPOD ITUNES ANTITRUST
) Lead Case No. C-05-00037-YGR
19 LITIGATION
)
) CLASS ACTION
20
)
) NOTICE OF FILING PUBLIC
This Document Relates To:
21
) DOCUMENTS REGARDING PLAINTIFFS
) OPPOSITION TO APPLE INC.S MOTION
ALL ACTIONS.
22
) TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION PURSUANT TO
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FEDERAL RULES OF CIVIL PROCEDURE
12(b)(1) AND 12(h)(3), OR RULE 50
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989293_1
On December 6, 2014, Plaintiffs filed Plaintiffs Opposition to Apple Inc.s Motion to
2 Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Federal Rules of Civil Procedure
3 12(b)(1) and 12(h)(3), Or Rule 50 (Opposition).
4
Portions of the Opposition were previously lodged under seal because Apple designated the
5 cited deposition testimony of Timothy ONeil ConfidentialAttorneys Eyes Only. The parties were
6 not able to agree to the filing of the materials publicly prior to the deadline for filing. On December
7 7, 2014, Apple agreed the materials need not be sealed. Accordingly, Plaintiffs hereby submit the
8 following documents which were previously the subject of Plaintiffs administrative motion to file
9 under seal (ECF 965) in public form:
10
Opposition;
11
Declaration of Alexandra S. Bernay in Support of Plaintiffs Opposition and Exhibits

1-5 thereto. Though Plaintiffs previously filed Exhibits 1, 3-5 to the Bernay Decl.
publicly (see ECF 964), Plaintiffs are attaching those exhibits here for the Courts
convenience;
Declaration of Marianna Rosen (Rosen Decl.). Through Plaintiffs previously filed

the Rosen Decl. publicly (see ECF 963), Plaintiffs are attaching it here for the
Courts convenience.
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DATED: December 7, 2014

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ROBBINS GELLER RUDMAN

& DOWD LLP
BONNY E. SWEENEY
ALEXANDRA S. BERNAY
CARMEN A. MEDICI
JENNIFER N. CARINGAL
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s/ Bonny E. Sweeney
BONNY E. SWEENEY
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989293_1
655 West Broadway, Suite 1900

San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
& DOWD LLP
PATRICK J. COUGHLIN
STEVEN M. JODLOWSKI
One Montgomery Street, Suite 1800
Telephone: 415/288-4545
415/288-4534 (fax)
NOTICE OF FILING PUBLIC DOCUMENTS RE PLAINTIFFS OPP TO APPLE INC.S MOTION TO
DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION - C-05-00037-YGR
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BONNETT, FAIRBOURN, FRIEDMAN

& BALINT, P.C.
ANDREW S. FRIEDMAN
FRANCIS J. BALINT, JR.
ELAINE A. RYAN
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: 602/274-1100
602/274-1199 (fax)
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THE KATRIEL LAW FIRM

ROY A. KATRIEL
1101 30th Street, N.W., Suite 500
Washington, DC 20007
Telephone: 202/625-4342
202/330-5593 (fax)
BRAUN LAW GROUP, P.C.
MICHAEL D. BRAUN
10680 West Pico Blvd., Suite 280
Los Angeles, CA 90064
Telephone: 310/836-6000
310/836-6010 (fax)
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GLANCY BINKOW & GOLDBERG LLP

BRIAN P. MURRAY
122 East 42nd Street, Suite 2920
New York, NY 10168
Telephone: 212/382-2221
212/382-3944 (fax)
MICHAEL GOLDBERG
1925 Century Park East, Suite 2100
Telephone: 310/201-9150
310/201-9160 (fax)
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Additional Counsel for Plaintiffs
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989293_1
NOTICE OF FILING PUBLIC DOCUMENTS RE PLAINTIFFS OPP TO APPLE INC.S MOTION TO

DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION - C-05-00037-YGR
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CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2014, I authorized the electronic filing of the foregoing
3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to
4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I
5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF participants indicated on the attached Manual Notice List.
7
I certify under penalty of perjury under the laws of the United States of America that the
8 foregoing is true and correct. Executed on December 7, 2014.

9
s/ Bonny E. Sweeney
BONNY E. SWEENEY
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13

& DOWD LLP
San Diego, CA 92101-8498
Telephone: 619/231-1058
619/231-7423 (fax)
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E-mail:
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989293_1
bonnys@rgrdlaw.com
CAND-ECF-
Page 1 of 2
Mailing Information for a Case 4:05-cv-00037-YGR The Apple iPod iTunes Anti-Trust Litigation
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case.
Amir Q Amiri
aamiri@jonesday.com,cdelacroix@jonesday.com
Francis Joseph Balint , Jr
fbalint@bffb.com
Alexandra Senya Bernay
xanb@rgrdlaw.com,LMix@rgrdlaw.com,TJohnson@rgrdlaw.com
Michael D Braun
service@braunlawgroup.com
Michael D. Braun
service@braunlawgroup.com,clc@braunlawgroup.com
Jennifer N. Caringal
JCaringal@rgrdlaw.com,Chuckm@rgrdlaw.com
Todd David Carpenter
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Andrew S. Friedman
khonecker@bffb.com,rcreech@bffb.com,afriedman@bffb.com
Martha Lea Goodman
mgoodman@bsfllp.com
Alreen Haeggquist
alreenh@zhlaw.com,judyj@zhlaw.com,winkyc@zhlaw.com
William A. Isaacson
wisaacson@bsfllp.com,jmilici@bsfllp.com
Suzanne Elizabeth Jaffe
SJAFFE@BSFLLP.COM,jchavez@bsfllp.com
Steven M. Jodlowski
Roy Arie Katriel
rak@katriellaw.com,rk618@aol.com
Thomas J. Kennedy
tkennedy@murrayfrank.com
David Craig Kiernan
dkiernan@jonesday.com,lwong@jonesday.com
Carmen Anthony Medici
cmedici@rgrdlaw.com,slandry@rgrdlaw.com
Caroline Nason Mitchell
cnmitchell@jonesday.com,mlandsborough@jonesday.com
Robert Allan Mittelstaedt
ramittelstaedt@jonesday.com,mlandsborough@jonesday.com,pwalter@jonesday.com
Brian P. Murray
bmurray@glancylaw.com
https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?113759388205935-L_1_0-1
12/7/2014
CAND-ECF-
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Maxwell Vaughn Pritt

mpritt@bsfllp.com,jchavez@bsfllp.com,irivera@bsfllp.com
Christopher G. Renner
crenner@bsfllp.com
George A. Riley
griley@omm.com,lperez@omm.com,cchiu@omm.com
Kieran Paul Ringgenberg
kringgenberg@bsfllp.com,gaulkh@bsfllp.com,ftang@BSFLLP.com,cduong@bsfllp.com,dnasca@bsfllp.com,sphan@bsfllp.com,irivera@BSFLLP.com
Elaine A. Ryan
eryan@bffb.com,nserden@bffb.com
Jacqueline Sailer
jsailer@murrayfrank.com
Michael Tedder Scott
mike.scott@dlapiper.com
Craig Ellsworth Stewart
cestewart@jonesday.com,mlandsborough@jonesday.com
Bonny E. Sweeney
bonnys@rgrdlaw.com,slandry@rgrdlaw.com,E_file_sd@rgrdlaw.com,ckopko@rgrdlaw.com
Helen I. Zeldes
helenz@zhlaw.com,winkyc@zhlaw.com,aarono@zhlaw.com
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12/7/2014
Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page1 of 17

& DOWD LLP
San Diego, CA 92101
5 Telephone: 619/231-1058
619/231-7423 (fax)
xanb@rgrdlaw.com
and
8
11 Telephone: 415/288-4545
415/288-4534 (fax)
12 patc@rgrdlaw.com
13
14
[Additional counsel appear on signature page.]
15
16
17
OAKLAND DIVISION
18
19 LITIGATION
)
) CLASS ACTION
20
)
) PLAINTIFFS OPPOSITION TO APPLE
21
) INC.S MOTION TO DISMISS FOR LACK
) OF SUBJECT-MATTER JURISDICTION
ALL ACTIONS.
22
) PURSUANT TO FEDERAL RULES OF
CIVIL PROCEDURE 12(b)(1) AND 12(h)(3),
23
OR RULE 50
24
Date:
TBD
25
Time:
TBD
Courtroom: 1, 4th Floor
26
Hon. Yvonne Gonzalez Rogers
Judge:
27
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TABLE OF CONTENTS
Page
3 I.
INTRODUCTION ...............................................................................................................1
4 II.
LEGAL ARGUMENT .........................................................................................................1
A.
Apples Rule 12 Attack Is Meritless ........................................................................1
B.
Ms. Rosens Trial Testimony Establishes Her Article III Standing ........................4
C.
Ms. Rosen Has Standing Even as to Her September 2006 iPod 5th
Generation (iPod 5th Gen.) Purchase ....................................................................6
D.
Even if Ms. Rosens Claims Were Mooted by Apples Change in Position

as to the Affected iPods, She Remains an Adequate Representative of the
Certified Class ..........................................................................................................7
E.
Even if the Named Plaintiffs Claims Were Mooted, the Class Claims
Remain and a Substitute Class Representative Should Be Appointed ....................8
8
9
10
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12 III.
CONCLUSION ..................................................................................................................11
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PLAINTIFFS OPP TO APPLE INC.S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER
JURISDICTION PURSUANT TO FRCP 12(b)(1) & 12(h)(3), OR RULE 50 - C-05-00037-YGR
-i-
TABLE OF AUTHORITIES
Page
3 CASES
4 Aguilar v. Boulder Brands, Inc.,
No. 3:12-cv-01862-BTM-BGS, 2014 U.S. Dist. LEXIS 122822
5
(S.D. Cal. Sept. 2, 2014) ..........................................................................................................11
6
Association of Data Processing Service Organizations v. Camp,

397 U.S. 150 (1970) ...................................................................................................................3
7
8 Bates v. United Parcel Service, Inc.,
511 F.3d 974 (9th Cir. 2007) .....................................................................................6, 8, 10, 11
9
Binta B. ex rel. S.A. v. Gordon,
10
710 F.3d 608 (6th Cir. 2013) .....................................................................................................8
11 Cal Cartage Co., Inc. v. United States,
721 F.2d 1199 (9th Cir. 1983) ...................................................................................................4
12
13 Darley Leone Mart, Inc. v. Bechtel,
No. 8K-JC-78, 1982 Del. Super. LEXIS 781
14
(Del. Super. Mar. 19, 1982) .......................................................................................................8
15 E. Texas Motor Freight Sys., Inc. v. Rodriguez,
431 U.S. 395 (1977) .................................................................................................................10
16
17 Everett v. MCI, Inc.,
No. 05-2122-PHX-ROS, 2006 U.S. Dist. LEXIS 71871
(D. Ariz. Sept. 29, 2006) ............................................................................................................2
18
19 Franks v. Bowman Transp. Co., Inc.,
424 U.S. 747 (1976) ...................................................................................................................7
20
Frederic G. Krapf & Son, Inc. v. Gorson,
21
243 A.2d 713 (Del. 1968) ..........................................................................................................9
22
Fulfillment Servs. Inc. v. United Parcel Serv., Inc.,

528 F.3d 614 (9th Cir. 2008) .....................................................................................................4
23
24 In re ATM Fee Antitrust Litig.,
686 F.3d 741 (9th Cir. 2012) .....................................................................................................3
25
In re Telectronics Pacing Sys., Inc.,
26
172 F.R.D. 271 (S.D. Ohio 1997) ..............................................................................................9
27
28
PLAINTIFFS OPP TO APPLE INC.S NOM & MTD FOR LACK OF SUBJECT-MATTER
- ii -
1
2
Page
3
4
5
6
7
8
In re TFT-LCD Antitrust Litig.,

No. M 07-1827 SI, MDL No. 1827, 2009 U.S. Dist. LEXIS 17792
(N.D. Cal. Mar. 3, 2009) ............................................................................................................9
In re Urethane Antitrust Litig.,
768 F.3d 1245 (10th Cir. 2014) .................................................................................................7
Kirola v. City and County of San Francisco,
No. C 07-3685 SBA, 2014 U.S. Dist. LEXIS 60919
(N.D. Cal. Apr. 29, 2014) .......................................................................................................10
9
10
Krechman v. Cnty. of Riverside,

723 F.3d 1104 (9th Cir. 2013) ...................................................................................................5
11 Kremens v. Bartley,
431 U.S. 119 (1977) .................................................................................................................10
12
13 Kuahulu v. Employers Ins. of Wausau,
557 F.2d 1334 (9th Cir. 1977) .................................................................................................10
14
Lidie v. State of Cal.,
15
478 F.2d 552 (9th Cir. 1973) ...................................................................................................10
16 Lierboe v. State Farm Mutual Auto. Ins. Co.,
350 F.3d 1018 (9th Cir. 2003) .............................................................................................9, 10
17
18 Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...................................................................................................................6
19
Lynch v. Baxley,
20
651 F.2d 387 (5th Cir. 1981) ...................................................................................................10
21 Morgan v. Laborers Pension Trust Fund,
81 F.R.D. 669 (N.D. Cal. 1979) .................................................................................................9
22
23 Pitts v. Terrible Herbst, Inc.,
653 F.3d 1081 (9th Cir. 2011) ...................................................................................................7
24
Preminger v. Peake,
25
552 F.3d 757 (9th Cir. 2008) .....................................................................................................3
26 Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) ...................................................................................................................5
27
28
- iii -
1
2
Page
3
4
Rogers v. Paul,
382 U.S. 198 (1965) ...................................................................................................................9
5 Sosna v. Iowa,
419 U.S. 393 (1975) ...............................................................................................................7, 8
6
7 U.S. Parole Commn v. Geraghty,
445 U.S. 388 (1980) ...................................................................................................................6
8
Williams v. Boeing Co.,
9
No. C98-761, 2005 U.S. Dist. LEXIS 27491 (W.D. Wash. Nov. 4, 2005) .............................10
10 STATUTES, RULES AND REGULATIONS
11 Del. Gen. Corp. Code,
278............................................................................................................................................8
12
312(a) .......................................................................................................................................9
312 (c) .....................................................................................................................................9
13
312 (e) ......................................................................................................................................9
14
61.075(6)(a)1.a., Fla. Stat. (2008) ..................................................................................................2
15
Federal Rules of Civil Procedure
16
Rule 12 .......................................................................................................................................1
Rule 23(a)(4) ..............................................................................................................................8
17
Rule 23(f) ...................................................................................................................................9
Rule 50 .......................................................................................................................................5
18
Rule 50(a)...................................................................................................................................5
19
SECONDARY AUTHORITIES
20
Manual for Complex Litigation (Fourth) (2007)
21
21.26.........................................................................................................................................9
22
23
24
25
26
27
28
- iv -
1 I.
INTRODUCTION
Apples motion to dismiss the claims for lack of Article III standing is meritless. Apples
3 entire motion hangs on a single document emblazoned with the signature of Plaintiff Marianna
4 Rosen (Ms. Rosen) and in Apples possession since September 11, 2008 that confirms rather
5 than refutes that Ms. Rosen purchased two iPod products during the Class Period with KVC and
6 DVC. Apples mid-trial bid to dismiss the Class members claims is likewise baseless, even if
7 Apples argument about Ms. Rosens iPod purchases were true (and it is not).
8 II.
LEGAL ARGUMENT
A.
10
Apples Rule 12 Attack Is Meritless
In its Rule 12 motion Apple belatedly disputes Ms. Rosens trial testimony based on a single,
11 previously undisclosed document that it retrieved from its own records a document which,
12 ironically, confirms rather than refutes her continuing standing to assert claims on behalf of herself
13 and the Certified Class.
Specifically, post-testimony investigation1 has confirmed that Ms. Rosen in fact purchased
14
15 for her own personal use two indisputably affected iPods directly from the Apple store at the Short
16 Hills, New Jersey mall on September 11, 2008 (collectively, the 2008 iPods), squarely within the
17 Class Period. Declaration of Marianna Rosen, dated December 6, 2014 (Rosen Decl.), filed
18 concurrently, 8, 13. The 2008 iPods, bearing serial numbers YM8361TK3QX and 1A836F5F201,
19 are both models in which KVC and DVC were admittedly installed. ECF 813-6 (Supplemental Decl.
20 of Farrugia) at 2-3. The Apple store contacted by Ms. Rosen confirmed her purchases on that date
21 and e-mailed her a copy of her receipt. Rosen Decl., 6-7. A true and accurate copy of the receipt
22 sent by Apple is attached as Rosen Decl., Ex. 2.
23
24
25
26
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Following Ms. Rosens trial testimony, Apple requested and Plaintiffs voluntarily produced the
serial number to the iPod she brought with her to trial. Using that serial number, Apple in less than
24 hours produced an internal document in Ms. Rosens name from the Short Hills Mall Apple store
demonstrating that Apple has ready access to Plaintiffs purchase records. See also Declaration of
Alexandra S. Bernay, filed concurrently (Bernay Decl.), Ex. 1, Trial Transcript at 637:2-7 (The
Court: So what were you doing in 2011, four years ago, three years ago, to investigate this particular
issue that you apparently resolved in less than 24 hours? Mr. Isaacson: I dont have an answer for
that, your honor. The Court: Well, thats a problem.).
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Upon delivery of Ms. Rosens receipt for the 2008 iPods, Apple for the first time disclosed
2 its own Internal Reprint Copy of the receipt, which Apple says shows that the 2008 iPods were
3 supposedly not purchased by Ms. Rosen but instead were ordered by her former husbands law
4 firm, The Rosen Law Firm. ECF 955 at 6:27-28. This is at odds with the facts.
5
Ms. Rosen purchased the 2008 iPods for her own use. Rosen Decl., 8, 13. She was not
6 asked or directed by anyone to buy the iPods. Id., 9. She gave one iPod to her son, as gift from her
7 for his personal use; it has never been used for any other purpose. Id., 8. She kept the other iPod
8 for her own personal use; it has never been used for any other purpose. Id. Ms. Rosens iPod is
9 reflected on her own personal iTunes account. Id.; Ex. 1 attached hereto. In fact, it was by
10 reviewing her iTunes account (information in Apples hands), that Ms. Rosen was able to see the
11 serial number for the 2008 iPod Touch, which is labeled as marianna Rosens iPod in her iTunes
12 account. Id., 5.
13
Ms. Rosen paid for the 2008 iPods with a credit card that she frequently used during the time
14 for personal purchases. Rosen Decl., 10, 12. The credit card had her name on it and she was
15 authorized to use it for such purposes. Id. This is true even if the card also had the name of the law
16 firm that her husband, Laurence Rosen, owned at the time and at which she worked as a bookkeeper
17 and office manager, known as The Rosen Law Firm, PA. Id. The Rosen Law Firm (the law
18 firm) is a Florida Professional Association, the stock of which was at the time 100% held as marital
19 property of both Ms. Rosen and Mr. Rosen. Id., 11; see generally 61.075(6)(a)1.a., Fla. Stat.
20 (2008) (marital assets include, among other things, [a]ssets acquired . . . during the marriage,
21 individually by either spouse or jointly by them). Because the law firm was solely owned by Mr.
22 Rosen and thus the Rosens marital community, Ms. Rosen was named on and authorized to use, and
23 frequently did use, the firm credit card for personal purchases. Id.; see also Everett v. MCI, Inc., No.
24 05-2122-PHX-ROS, 2006 U.S. Dist. LEXIS 71871, at *6 n.4 (D. Ariz. Sept. 29, 2006) (finding that
25 wife had standing to challenge overcharges on checking account she shared with her husband and
26 was authorized to use). Ms. Rosens purchases of the two 2008 iPods was not done at the direction
27 of the law firm, nor were those iPods property of the law firm. Id.
28
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Ms. Rosens declaration shows just how grossly Apple is elevating form over substance to
2 argue based only on its own internal reprint that Ms. Rosen was not the actual purchaser of the
3 2008 iPods from Apple. Apples entire (one paragraph) argument that the evidence does not permit
4 the reasonable conclusion that [Ms. Rosen] purchased one of the allegedly affected iPods hinges
5 solely on the reference to The Rosen Law Firm on the document. Declaration of Tim ONeil (ECF
6 956), 9 and Exhibit 2. Mr. ONeil in his declaration fails, however, to explain how or why the
7 words The Rosen Law Firm appear on the document. Id.
8
At deposition, Mr. ONeil acknowledged that he did not have any basis to state that the
9 customer field is populated by the name on the credit card, conceding that aside from personal
10 experience at the Apple Store, he knew nothing about the data collection process at the point of sale.
11 Bernay Decl., Ex. 2, ONeil Dep. at 52:20-24. The only effort he made to determine the point of sale
12 process was a five-minute call made before submitting his declaration, to an individual who could
13 not confirm with any certainty whether the customer field captures the name on the card. Id. at
14 57:10-61:14. When asked what information from the card Apples Point-Of-Sale (POS) system
15 would capture (such as from a card with multiple names), Mr. ONeil acknowledged, I dont know
16 because Im not an POS expert. Id. at 61:4-7, 61:14. Further, Mr. ONeil acknowledged that the
17 field can be changed by an employee at the point of sale and can be edited based on the customer
18 request. Id. at 39:16-40:5.
19
Apple has failed to raise any genuine issue of fact requiring the Court to adjudicate Ms.
20 Rosens continuing standing to assert her claims and represent the certified Class. The constitutional
21 requirements of standing are satisfied if the plaintiff alleges that the challenged action has caused
22 him injury-in-fact, economic or otherwise. Association of Data Processing Service Organizations
23 v. Camp, 397 U.S. 150, 152 (1970). The contours of the injury-in-fact requirement are very
24 generous: once the plaintiff has alleged a specific, identifiable trifle of injury that is fairly
25 traceable to the defendants conduct, the requirement of a constitutionally adequate stake in the
26 controversy is satisfied. Preminger v. Peake, 552 F.3d 757, 763 (9th Cir. 2008) (The injury may be
27 minimal.). Plaintiffs are, therefore, entitled to summary adjudication by the Court in their favor
28 with respect to Ms. Rosens standing, even before considering her unimpeached trial testimony. In
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1 re ATM Fee Antitrust Litig., 686 F.3d 741, 747-48 (9th Cir. 2012) (standing is a question of law for
2 the court to decide, and the court need not conduct evidentiary inquiry absent a genuine issue of
3 material fact).2
4
B.
Ms. Rosens trial testimony unequivocally establishes her Article III standing. She testified
Ms. Rosens Trial Testimony Establishes Her Article III Standing
6 that she purchased at least two affected iPods during the Class Period: (1) an iPod nano, and (2) an
7 iPod touch:
8
Q.
And you understand that youre here today to discuss some issues related to
your purchases of iPods; is that right?
A.
Right.
Q.
And have you ever owned an iPod?
A.
Yes.
Q.
Have you when did you purchase your first iPod?
A.
I believe that I purchased my first iPod in February, March of 2004. And I

bought another iPod, it was iPod nano for my little sister as a gift for her
graduation I think in July of the same year. Then I bought, I guess its next
generation iPod, a black iPod in September 2006. I bought an iPod nano. I
think its called nano, the green kind of slick narrow iPod which is smaller
than the ones prior, in 2007, in the fall of 2007. And the last iPod I bought
was the iPod touch. And I think I bought it as a Hanukkah gift for my son in
December of 08.
18
Q.
And did you purchase all of those iPods at an Apple store?
19
A.
I think, you know, I dont remember a hundred percent, but I think its a very
good assumption that I bought it at the Apple store in Short Hills Mall, which
is not far from my house. Thats where I bought most of my Apple products.
9
10
11
12
13
14
15
16
17
20
21 Bernay Decl., Ex. 4, Trial Transcript at 583:10-584:10.3

22
23
Where the plaintiff is asserting a federal private cause of action,[t]he injury required by Article
III
can
exist solely by virtue of statutes creating legal rights, the invasion of which creates
24 standing.
Fulfillment Servs. Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 618-19 (9th Cir. 2008)
(citation
omitted);
Cartage Co., Inc. v. United States, 721 F.2d 1199, 1203 (9th Cir. 1983)
25 (holding that once Cal
it is established that a private cause of action exists, the inquiry shifts from
Article III standing exists to whether prudential standing concerns are satisfied). Apple
26 whether
challenges only Article III standing in its motion.
27 3 Ms. Rosens trial testimony also establishes her purchase of an iPod 5th Gen. in September 2006,
28 discussed infra.
-4-
During cross-examination Apple chose not to question Ms. Rosen on any perceived
2 inconsistencies with past interrogatory answers or deposition testimony. Bernay Decl., Ex. 4, Trial
3 Transcript at 593:4-611:13. Nor did Apple use any of its own apparently extensive internal records.
4 Id. In short, Apple elicited no trial testimony from Ms. Rosen at all undermining the accuracy of her
5 testimony regarding the nature and timing of her purchases.
6
Beyond her iPod purchases, Ms. Rosen also testified as to the adverse economic lock-in
7 which effectively forced her to continue to purchase iPods rather than other mp3 players:
8
Q.
Why have you purchased so many Apple products?
A.
Well, you know, I like Apple products. I think they are good products. I also,
after I bought my first iPod, which was in 2004, I immediately proceeded in
building the library which consisted of a good percentage of songs that I
bought from iTunes store, which came together with the software. And also
copying my cd library. So once I build that library, I sort of had to use iPod
products because I couldnt use any others, mp3 players. So I was just using
my library and loading it there.
10
11
12
13 Bernay Decl., Ex. 4, Trial Transcript at 584:18-585:3; see also, id. at 590:13-18 (So in that, I was in
14 a way a little bit forced to buy certain products. Even if I would have chosen Apple at the end, I
15 wanted to be my free choice not because I already invested time and money in the library. I felt like
16 I [was] stuck.).
17
There is, then, absolutely nothing in the current trial record that precludes the jury from fully
18 crediting Ms. Rosens testimony that she purchased the specified iPods from Apple and was
19 otherwise economically injured during the Class Period, which in turn necessarily precludes Apples
20 Rule 50 motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000); Krechman
21 v. Cnty. of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (district court can grant a Rule 50(a)
22 motion for judgment as a matter of law only if there is no legally sufficient basis for a reasonable
23 jury to find for that party on that issue) (citation omitted). [I]n entertaining a motion for judgment
24 as a matter of law, the court . . . may not make credibility determinations or weigh the evidence.
25 Reeves, 530 U.S. at 150; id. at 149-50 (the court must view the evidence in the light most favorable
26 to the nonmoving party and draw all reasonable inferences in that partys favor).
27
The Court thus cannot under Rule 50 weigh the credibility of trial testimony especially
28 where, as here, it is stands uncontroverted. See, e.g., Krechman, 723 F.3d at 1110-11 (reversing
-5-
1 grant of motion for judgment as a matter of law). Under the present record, there is an ample
2 evidentiary basis for the jury to find that Ms. Rosen suffered economic loss during the Class Period
3 fairly traceable to Apples alleged misconduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
4 (1992) (alleged overcharges are a concrete, particularized, and actual injury-in-fact).
5
C.
Ms. Rosen Has Standing Even as to Her September 2006 iPod 5th
Generation (iPod 5th Gen.) Purchase
6
If the named plaintiffs claim remains a live controversy at the time of class certification, the
7
case will not become moot even if the named plaintiffs personal claim later expires. U.S. Parole
8
Commn v. Geraghty, 445 U.S. 388, 398-99 (1980). Standing and mootness are two sides of the
9
same coin. Bates v. United Parcel Service, Inc., 511 F.3d 974, 986 (9th Cir. 2007) ([M]ootness is
10
described as the doctrine of standing set in a time frame.).
11
Here, Apple does not in its motion dispute Ms. Rosens trial testimony regarding her
12
13
14
September 2006 purchase of the iPod 5th Gen. within the Class Period, except to argue that the iPod
5th Gen. does not include the KVC and DVC challenged by Plaintiffs. But at a minimum her
purchase of the iPod 5th Gen. gave Ms. Rosen standing to assert a claim based on Apples prior
15
sworn testimony regarding affected models.
16
The Courts Order certifying the Class was premised on the list of iPods identified by
17
Apples Augustin Farrugia as affected by the changes in Updates 7.0 and 7.4. Bernay Decl, 3. The
18
Class certified by the Court: (a) defined a Class Period of September 12 , 2006 through March 31,
19
2009 (the Class Period); and (b) defined class membership in terms of the specific models of iPods
20
sold during the Class Period, including specifically the iPod 5th Gen. (the Class Definition). Id.,
21
6; see also, ECF 694 at 9 (Class Notice). The Class Notice was issued to more than 8 million
22
consumers in the spring of 2012. Bernay Decl., 7.
23
On July 2, 2013, after Class Notice and after Plaintiffs submitted Professor Roger Nolls
24
liability and damages report, Apple submitted a corrected declaration from Augustin Farrugia in
25
which he changed his previous testimony identifying the affected iPods. Bernay Decl., 10.
26
Plaintiffs subsequently asked Apple to stipulate to revise the Class Definition to exclude the
27
purportedly unaffected models. Id., 11. Apple refused to do so. Id. Plaintiffs in the October 14,
28
-6-
1 2014 Joint Pre-Trial Conference Statement acknowledged, therefore, that they only sought damages
2 for the Class members who purchased affected iPods. ECF 823 at 1.
3
This chronology establishes two things. First, Ms. Rosen had standing at the time of
4 certification of the Class even with respect to her uncontested purchase of the iPod 5th Gen. She
5 remains a member of the Class as currently certified.
6
Second, it is far too late for Apple to seek to alter the class definition. Apple made a strategic
7 decision not to modify the class definition to align with Farrugias changed testimony. Presumably
8 Apple did so because it seeks to attack Plaintiffs expert, Professor Roger G. Noll, at trial, and to
9 preserve any challenges to the certification of the Class. It is therefore unavailing for Apple to argue
10 that the governing class definition may include Class members who purchased only unaffected
11 models. Whatever the amount of damages awarded by the jury, Plaintiffs will engage in a post12 verdict allocation process among the certified Class as a whole, in which Apple has no standing to
13 participate or object. In re Urethane Antitrust Litig., 768 F.3d 1245, 1269 (10th Cir. 2014)
14 (defendant has no interest in the method of distributing the aggregate damages award among class
15 members).
16
17
18
D.
Even if Ms. Rosens Claims Were Mooted by Apples Change in

Position as to the Affected iPods, She Remains an Adequate
Representative of the Certified Class
Even if the Court were to find that Ms. Rosens individual claims were moot, she remains a
19 proper and adequate representative of the Class claims, which were certified nearly 2 years before
20 Apples change in designation of the affected models. Once a district court has certified a class,
21 mooting the putative class representatives claim will not moot the class action because, upon
22 certification, the class acquires a legal status separate from the interest asserted by the class
23 representative, such that an Article III controversy then exists between the named defendant and
24 every member of the certified class. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir.
25 2011) (citing Sosna v. Iowa, 419 U.S. 393 (1975)).
26
Apple in its brief tries to limit Sosna to instances in which the disputed issue is capable of
27 repetition yet evading review (ECF 955 at 11:25-12:10), but that argument has since long been
28 discredited. See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 754 (1976). Apples cited cases
-7-
1 declining to apply the capable of repetition exception where a plaintiff never had standing at all
2 (ECF 955 at 11-12) are inapplicable here because (a) Plaintiffs do not rely on that exception and (b)
3 Ms. Rosen at the absolute minimum had standing through the date of Class certification.
4
Under Sonsa, after class certification the analysis shifts from whether the case is justiciable to
5 Rule 23(a)(4)s fair and adequate representation requirement. Addressing this requirement, the
6 Sonsa Court concluded that even though the named plaintiffs personal claim may be moot, she still
7 adequately protected the interests of the class because it was unlikely that segments of the class
8 [Sosna] represent[ed] would have interests conflicting with those she . . . sought to advance. 419
9 U.S. 393, 403 (1975). An appointed class representative may therefore continue to represent a
10 certified class even if her personal claims have become moot, at least until such time that there is
11 determination that representative is no longer adequate. Binta B. ex rel. S.A. v. Gordon, 710 F.3d
12 608 (6th Cir. 2013). By traveling across the country and testifying at trial, as well as submitting to
13 invasive discovery of her music purchases, sitting for a day-long deposition and taking an active role
14 in the litigation, Ms. Rosen has demonstrated her adequacy as a class representative through her
15 unflagging willingness to serve the best interests of the Class.
16
E.
Even if the Named Plaintiffs Claims Were Mooted, the Class Claims
Remain and a Substitute Class Representative Should Be Appointed
17
Finally, even if Ms. Rosens claims were deemed moot, and even if Ms. Rosen were for some
18
reason deemed inadequate to continue as the representative of the Class, the appropriate remedy is to
19
a name substitute class representative. Bates, 511 F.3d at 986-88
20
Plaintiffs have numerous Class members who are prepared to step in and serve as class
21
representatives without delay. First, K&N Enterprises, Inc. (K&N) is willing to serve as a class
22
representative. As the Court is aware, Plaintiffs believe that K&N has standing to bring claims
23
against Apple. See Darley Leone Mart, Inc. v. Bechtel, No. 8K-JC-78, 1982 Del. Super. LEXIS 781
24
(Del. Super. Mar. 19, 1982); see also Del. Gen. Corp. Code 278. Moreover, K&N is ready and
25
willing to revive for that purpose (curing the concern of the Court expressed in its earlier order (ECF
26
27
28
-8-
1 927))4, and its owner Ken Riegel has: (a) already been deposed by Apple; and (b) already testified at
2 trial. Bernay Decl., 13.
3
Numerous other absent members of the Certified Class have likewise contacted Plaintiffs
4 expressing a readiness and willingness to serve as Class Representative. Bernay Decl., 12. To the
5 extent the Court deems Ms. Rosen an improper or inadequate class representative in any respect, the
6 only fair and equitable remedy is to substitute one or more additional class representatives.
7
A motion to add a class representative should be granted where the proposed new plaintiff is
8 a member of the class and seeks the same relief for all of the reasons offered by the original
9 plaintiffs. Rogers v. Paul, 382 U.S. 198, 198-99 (1965). Courts within the Ninth Circuit often allow
10 either substitution or addition of new class representatives. See, e.g., In re TFT-LCD Antitrust Litig.,
11 No. M 07-1827 SI, MDL No. 1827, 2009 U.S. Dist. LEXIS 17792, at *10 (N.D. Cal. Mar. 3, 2009);
12 Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 673-75 (N.D. Cal. 1979) (permitting
13 plaintiffs to add new class representatives). The court may permit intervention by a new
14 representative or may simply designate that person as a representative in the order granting class
15 certification. Manual for Complex Litigation (Fourth) 21.26 (2007) (citing In re Telectronics
16 Pacing Sys., Inc., 172 F.R.D. 271, 283 (S.D. Ohio 1997) (court named substitute new class
17 representative without formal intervention or joinder)). Bernay Decl., Ex. 5.
18
This is not a case like Lierboe v. State Farm Mutual Auto. Ins. Co., 350 F.3d 1018, 1023 (9th
19 Cir. 2003) where the named plaintiff never had standing and never was a member of the class she
20 was named to represent. There the Ninth Circuit, on an accepted Rule 23(f) interlocutory appeal of
21 class certification, dismissed a putative class case for lack of standing after it was determined, by
22 certified question to the state supreme court, that the plaintiff (Lierboe) had no claim from the
23 outset of her litigation. 350 F.3d at 1023 n. 6. But the Ninth Circuit simultaneously noted: If
24 Lierboe initially had a viable . . . claim that later became moot, then our law in an appropriate case
25 would permit substituting proper class representatives to allow the suit to proceed. Id. (citing
26
4
See Del. Gen. Corp. Code 312(a), (c) and (e) (revival of a void company is immediate and
27 retroactive);
Frederic G. Krapf & Son, Inc. v. Gorson, 243 A.2d 713 (Del. 1968). There is
absolutely
no
prejudice to Apple.
28
-9-
1 Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334, 1336-37 (9th Cir. 1977) (If the district court
2 had certified appellants class prior to appellants own claim [ ] becoming moot, we would not
3 dismiss this appeal for mootness. In such a case, remand to the district court would be appropriate in
4 order to determine whether a substitute representative would be available.)). Like Lierboe, the
5 entire line of cases cited by Apple is premised on a finding that the plaintiff never had a viable claim
6 at the outset a finding that cannot be made here. See, e.g., Lidie v. State of Cal., 478 F.2d 552, 555
7 (9th Cir. 1973) (substitution denied where the original plaintiffs were never qualified to represent
8 the class); Williams v. Boeing Co., No. C98-761, 2005 U.S. Dist. LEXIS 27491, at *32-*33 (W.D.
9 Wash. Nov. 4, 2005) (same; plaintiffs failed to allege actionable claims at the outset); Kirola v. City
10 and County of San Francisco, No. C 07-3685 SBA, 2014 U.S. Dist. LEXIS 60919, at *4 (N.D. Cal.
11 Apr. 29, 2014) (same; plaintiffs lacked standing to bring lawsuit in the first instance).
12
Even considering her uncontested iPod 5th Gen. purchase alone, Ms. Rosen had standing
13 when the operative complaint was filed and when the Class was certified, and she remains a member
14 of the Class as such to this very day. But she furthermore unquestionably had (and has) standing
15 based on her purchase of the 2008 iPods, which place her squarely within the certified Class and
16 within Plaintiffs expert damages analysis.
17
Apples suggested course that the Court dismiss the entire case rather than providing an
18 opportunity to substitute a new class representative conflicts with the law of this Circuit. As an en
19 banc panel of the Ninth Circuit observed in Bates, the Supreme Court has held it would be error for a
20 district court to dismiss class allegations where it had already certified a class and only later had it
21 appeared that the named plaintiffs were not class members or were otherwise inappropriate class
22 representatives. 511 F.3d at 986 (citing and quoting E. Texas Motor Freight Sys., Inc. v. Rodriguez,
23 431 U.S. 395, 406 n.12 (1977)); Kremens v. Bartley, 431 U.S. 119 (1977) (the claims of the narrower
24 class remain live, even after the contours of the class have changed or the class has been truncated
25 by intervening legislation); Lynch v. Baxley, 651 F.2d 387, 387-88 (5th Cir. 1981) (finding that the
26 district court committed reversible error in dismissing the class after it found that the class
27 representative lacked standing). Even in the situation of a not-yet-certified class, the Ninth Circuit
28
- 10 -
1 calls for a flexible solution, not dismissal. Aguilar v. Boulder Brands, Inc., No. 3:12-cv-018622 BTM-BGS, 2014 U.S. Dist. LEXIS 122822, at *16-*17 (S.D. Cal. Sept. 2, 2014).
3
The Ninth Circuit applied these principles in Bates when the named plaintiffs claim arguably
4 became moot and not redressable after he signed a collective bargaining agreement that
5 precluded him from benefitting from the relief he sought. 511 F.3d at 986. Nevertheless, drawing
6 on Sonsa and other Supreme Court precedent, the Ninth Circuit held that the class had standing and
7 should be permitted to pursue the certified claims. Id. at 987-88 (citing Sonsa). Even if [the
8 plaintiffs] claim later became moot or nonredressable, an identifiable member of the class . . . surely
9 has standing and can support the class claims. Id. at 987. Here, too, numerous members of the
10 Class have purchased affected iPods and surely have standing.
11 III.
CONCLUSION
12
For each and all the foregoing reasons, Apples motion to dismiss for lack of subject matter
13 jurisdiction and to decertify the Class is not well-taken and should be denied in its entirety.
14 DATED: December 6, 2014
Respectfully submitted,
15

& DOWD LLP
BONNY E. SWEENEY
ALEXANDRA S. BERNAY
CARMEN A. MEDICI
JENNIFER N. CARINGAL
16
17
18
19
20
21
22
s/ Bonny E. Sweeney
BONNY E. SWEENEY
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
23
24
25
26
27

& DOWD LLP
PATRICK J. COUGHLIN
STEVEN M. JODLOWSKI
One Montgomery Street, Suite 1800
Telephone: 415/288-4545
415/288-4534 (fax)
28
- 11 -
1
2
3
4
5
6
BONNETT, FAIRBOURN, FRIEDMAN

& BALINT, P.C.
ANDREW S. FRIEDMAN
ELAINE A. RYAN
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: 602/274-1100
602/274-1199 (fax)
7
8
9
10
11
12
13
THE KATRIEL LAW FIRM

ROY A. KATRIEL
1101 30th Street, N.W., Suite 500
Washington, DC 20007
Telephone: 202/625-4342
202/330-5593 (fax)
BRAUN LAW GROUP, P.C.
MICHAEL D. BRAUN
10680 West Pico Blvd., Suite 280
Telephone: 310/836-6000
310/836-6010 (fax)
14
15
16
17
18
19
20

BRIAN P. MURRAY
122 East 42nd Street, Suite 2920
New York, NY 10168
Telephone: 212/382-2221
212/382-3944 (fax)
MICHAEL GOLDBERG
1925 Century Park East, Suite 2100
Telephone: 310/201-9150
310/201-9160 (fax)
21
Additional Counsel for Plaintiffs
22
23
24
25
26
27
28
- 12 -

& DOWD LLP
San Diego, CA 92101
5 Telephone: 619/231-1058
619/231-7423 (fax)
xanb@rgrdlaw.com
and
8
11 Telephone: 415/288-4545
415/288-4534 (fax)
12 patc@rgrdlaw.com
13
14
15
16
OAKLAND DIVISION
17
18 LITIGATION
)
) CLASS ACTION
19
)
) DECLARATION OF ALEXANDRA S.
20
) BERNAY IN SUPPORT OF PLAINTIFFS
) OPPOSITION TO APPLE INC.S MOTION
ALL ACTIONS.
21
) TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION PURSUANT TO
22
FEDERAL RULES OF CIVIL PROCEDURE
12(b)(1) AND 12 (h)(3), OR RULE 50
23
Date:
TBD
24
Time:
TBD
Courtroom: 1, 4th Floor
25
Judge:
26
27
28
989262_1
I, ALEXANDRA S. BERNAY, declare as follows:
1.
I am an attorney duly licensed to practice before all of the courts of the State of
3 California. I am a member of the law firm of Robbins Geller Rudman & Dowd LLP, one of the
4 counsel of record for plaintiff in the above-entitled action. I have personal knowledge of the matters
5 stated herein and, if called upon, I could and would competently testify thereto.
6
2.
I submit this declaration in support of Plaintiffs Opposition to Apple Inc.s Motion to
7 Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Federal Rules of Civil Procedure 12
8 (b)(1) and 12(h)(3), or Rule 50.
9
3.
At the time of class certification in 2011, Plaintiffs relied upon a list of iPod models
10 identified by Apples Augustin Farrugia as models affected by the software and firmware updates
11 (the keybag verification code and the database verification code) in iTunes 7.0 and 7.4.
12
4.
The Court requested supplemental information regarding those models on June 22,
5.
The list of affected models included a number of types of iPods and various
13 2011.
14
15 generations within iPod type. The list included iPod Classic models, iPod nanos, iPod touch models
16 and iPod shuffles. The iPod Classic Fifth Generation was included on that list.
17
6.
After the Court certified the class and approved the list of models in the class period, I
18 worked with Apples counsel and the class administrator, Rust Consulting Group, to effectuate a
19 notice plan. The parties worked extensively on the notice plan, carefully crafting the language to be
20 used in mailed and publication notice as well as the case information that would appear on the case
21 website, www.ipodlawsuit.com. That list of models remains available on the Court-approved site.
22
7.
The notice to the class took place in the spring of 2012, with more than 8 million
23 consumers and more than 500 resellers receiving direct notice.

24
8.
In March of 2013 I received a phone call from Apples counsel informing me that Mr.
25 Farrugia had determined that the list of affected models Apple provided was incorrect.
26
9.
I later received an email from Apples counsel which detailed this list of affected
27 models. Because this was not an official statement from Apple, Plaintiffs requested a sworn
28 statement regarding which models were actually affected.
989262_1
BERNAY DECL ISO PLTFS OPP TO APPLES MOTION TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION PURS TO FRCP (b)(1) & 12 (h)(3), OR RULE 50 - C-05-00037-YGR
-1-
10.
On July 2,
2 2013, Au
ugustin Farruugia submittted a suppleemental decclaration thaat
2 prrovided a lisst of iPod models

m
claimeed to be affeected by thee software annd firmware updates (thee
3 keybag verification code and the dataabase verific ation code) in iTunes 7.0 and 7.4.
4
11.
In early Seeptember I wrote

w
to Appples counseel asking Appple to agree to revise thee
5 cllass definitio
on to conform
m it to the lisst of affectedd models claiimed in Mr. Farrugias S
Supplementaal
6 Declaration.
D
I followed up
u on this query a couplee of days lateer. Apples ccounsel inforrmed me thaat
7 he had passed
d the messagee on to Apple. I later lear
arned that Appples new coounsel refuseed to agree to
o
8 th
his revision.
9
12.
Since the beginning

b
off this trial Pllaintiffs couunsel have reeceived a num
mber of calls
nd emails fro
om memberss of the certiffied class whho have exprressed an intterest in servving as a class
10 an
d phone and email comm
munication w
with several oof these classs members in
n
11 reepresentativee. I have had
he last two days.
d
12 th
13
13.
Ken Riegeel, the owner of K& N Ennterprises, Innc. has been ddeposed by A
Apple and has
&N Enterprisees, Inc. is reaady and williing to revivee its corporatee

14 teestified at triaal. I understand that K&
ome an activ
ve corporate entity by filling a form w
with the Divvision of Corporations in
n
15 sttatus to beco
D
16 Delaware.
17
14.
Attached are
a true and correct copi es of the following exhibbits:
18
Exhib
bit 1:
Relevant excerrpts from the Trial Transccript of Proceeedings, heldd December 4,

4
2014;
Exhib
bit 2:
Reelevant excerrpts from thee depositionn transcript oof Timothy O

ONeil, taken
n
Deecember 5, 2014;
21
Exhib
bit 3:
ON
Neil Deposition Exhibitt No. 4;
22
Exhib
bit 4:
Relevant excerrpts from the Trial Transccript of Proceeedings, heldd December 3,

3
2014; and
Exhib
bit 5:
Ind
dex from Triial Transcrippt of Proceeddings, held D
December 2, 2014.
19
20
23
24
I declare under peenalty of perj
rjury under tthe laws of thhe United Sttates of Ameerica that thee
25
fo
oregoing is true and co
orrect. Executed this 66th day of D
December, 22014, at Saan Francisco
o,
26
California.
C
27
28
9989262_1
ALE
EXANDRA S. BERNAY
Y
BERNAY DECL ISO PLTFS OPP TO APP
PLES MOTIO
ON TO DISMIS
SS FOR LACK
K OF SUBJEC
CTMATTER
M
JURIISDICTION PU
URS TO FRCP
P (b)(1) & 12 ((h)(3), OR RUL
LE 50 - C-05--00037-YGR
-2-
1
2
CERTIFICATE OF SERVICE
I hereby certify that on December 6, 2014, I authorized the electronic filing of the foregoing
3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to
4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I
5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF participants indicated on the attached Manual Notice List.
7
I certify under penalty of perjury under the laws of the United States of America that the
8 foregoing is true and correct. Executed on December 6, 2014.

9
s/ Bonny E. Sweeney
BONNY E. SWEENEY
10
13

& DOWD LLP
San Diego, CA 92101-8498
Telephone: 619/231-1058
619/231-7423 (fax)
14
E-mail:
11
12
15
16
17
18
19
20
21
22
23
24
25
26
27
28
989262_1
bonnys@rgrdlaw.com
EXHIBIT 1

In re Apple iPod iTunes Antitrust Litigation - Jury Trial Volume 4 - December 4, 2014
Sheet 1
I N D E X

BEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE
PLAINTIFFS' WITNESSES
PAGE
VOL.
CUE, EDUARDO
THE APPLE IPOD ITUNES
ANTITRUST LITIGATION
)
)
)
)
)
)
)
)
____________________________)
NO. C 05-00037 YGR
DIRECT EXAMINATION BY MS. SWEENEY
651
PAGES 623 - 874
CROSS-EXAMINATION BY MR. ISAACSON
692
JURY TRIAL VOLUME 4
REDIRECT EXAMINATION BY MS. SWEENEY
754
RECROSS-EXAMINATION BY MR. ISAACSON
765
FURTHER REDIRECT EXAMINATION BY MS. SWEENEY
767
DIRECT EXAMINATION BY MR. COUGHLIN
769
806
DIRECT EXAMINATION BY MS. SWEENEY
791
806
REDIRECT EXAMINATION BY MS. SWEENEY
841
RECROSS-EXAMINATION BY MR. ISAACSON
848
OAKLAND, CALIFORNIA
THURSDAY, DECEMBER 4, 2014
REPORTERS' TRANSCRIPT OF PROCEEDINGS

MARKS, AMANDA
APPEARANCES:
FOR PLAINTIFFS:
BY:
BY:
ROBBINS GELLER RUDMAN & DOWD LLP

655 WEST BROADWAY, SUITE 1900
SAN DIEGO, CALIFORNIA 92101
ALEXANDRA S. BERNAY,
JENNIFER N. CARINGAL,
PATRICK COUGHLIN,
STEVEN M. JODLOWSKI,
CHARLES MCCUE,
CARMEN A. MEDICI,
BONNY E. SWEENEY, ATTORNEYS AT LAW
BONNETT FAIRBOURN FRIEDMAN & BALINT PC
4023 CAIN BRIDGE ROAD
FAIRFAX, VIRGINIA 22030
ATTORNEY AT LAW
SCHILLER, PHILLIP
--O0O-(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:
RAYNEE H. MERCADO, CSR NO. 8258

DIANE E. SKILLMAN, CSR NO. 4909
PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY;

TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530
A P P E A R A N C E S (CONT'D.)
E X H I B I T S
PLAINTIFFS' EXHIBITS
FOR DEFENDANT:
BY:
BY:
BY:
BY:
BOIES, SCHILLER & FLEXNER LLP

5301 WISCONSIN AVENUE NW
WASHINGTON, D.C. 20015
WILLIAM A. ISAACSON,
KAREN L. DUNN,
MARTHA L. GOODMAN, ATTORNEYS AT LAW
1999 HARRISON STREET, SUITE 900
OAKLAND, CALIFORNIA 94612
MEREDITH R. DEARBORN, ATTORNEYS AT LAW
JONES DAY
555 CALIFORNIA STREET, 26TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104-1500
DAVID C. KIERNAN, ATTORNEYS AT LAW
APPLE
1 INFINITE LOOP, MS 169-2NYJ
CUPERTINO, CALIFORNIA 95014
SCOTT B. MURRAY,
SENIOR LITIGATION COUNSEL
--O0O--
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Raynee H. Mercado, CSR, RMR, CRR, FCRR and Diane E. Skillman, CSR, RPR, FCRR

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WHICH DAMAGES WOULD BE CLAIMED.
THE -- THE CHANGE IN THE IPODS AFFECTED HAVE NOTHING TO DO
WITH THE FACT THAT THESE PLAINTIFFS ARE NOW DISCLOSING FOR THE
FIRST TIME IPODS FOR WHICH DAMAGES WOULD HAVE BEEN CLAIMED
FROM THE BEGINNING OF THE -- FROM THE BEGINNING OF THIS
COMPLAINT, THE -- THE BEGINNING OF THIS OPERATIVE COMPLAINT.
ALL RIGHT. THIS -- THE CHANGE IN THE DAMAGE THEORY HAS
NOTHING -THE COURT: I UNDERSTAND THAT. BUT WE'RE TEN YEARS
INTO THIS LITIGATION AND IT'S NOT CLEAR TO ME WHERE IN THE
DEPOSITION -- AND I -- I UNDERSTAND, MR. ISAACSON, THAT YOU
WERE NOT INVOLVED IN THIS CASE FROM THE BEGINNING. BUT
TYPICALLY, THESE THINGS WOULD HAVE BEEN INVESTIGATED. AND DO
I -- AND RESEARCHED AS PART OF THE DISCOVERY.
MR. ISAACSON: AND THEY -- AND THEY WERE, YOUR HONOR.
SO LET ME -- SO THE DEPOSITION IS 2007. ALL RIGHT? SO WE ARE
TALKING ABOUT PURCHASES AFTER 2007.
THE COURT: CAN I HAVE HER DEPOSITION, PLEASE?
MR. ISAACSON: SURE.
THE COURT: I'M TALKING TO MY COURTROOM DEPUTY.
MR. ISAACSON: THE DEPOSITION IS IN 2007. WE'RE
TALKING ABOUT 2008 PURCHASES, SO THIS WOULD NOT HAVE BEEN
DISCUSSED DURING THE DEPOSITION.
THE INTERROGATORY RESPONSE, WHICH IS 2010, COMES AFTER
THIS ALLEGED PURCHASE. SO DISCOVERY WAS TAKEN ON IT. AND THE
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2006."
THE COURT: SO WHAT WERE YOU DOING IN 2011, FOUR
YEARS AGO, THREE YEARS AGO, TO INVESTIGATE THIS PARTICULAR
ISSUE THAT YOU APPARENTLY RESOLVED IN LESS THAN 24 HOURS?
MR. ISAACSON: I DON'T HAVE AN ANSWER FOR THAT, YOUR
HONOR.
THE COURT: WELL, THAT'S A PROBLEM.
MR. ISAACSON: I -- I UNDERSTAND THAT. BUT AT THE
END OF THE DAY, THERE'S STILL -- WE'RE AT TRIAL AND A
PLAINTIFF HAS TO SHOW INJURY.
THE COURT: WELL, AND I UNDERSTAND THAT, TOO, BUT I
DID EXCUSE HER. AND IF YOU THOUGHT YOU HAD AN ISSUE, YOU
SHOULD HAVE ADVISED ME, AND I WOULDN'T HAVE EXCUSED HER. AND
I SAID THAT TO YOU AT THE END OF THE COURT YESTERDAY.
MR. ISAACSON: RIGHT.
THE COURT: SO THAT CREATES ANOTHER PROBLEM.
MR. ISAACSON: RIGHT. I THINK IT COULD BE RESOLVED
BY -- BY PHONE OR VIDEO TESTIMONY.
THE -- BECAUSE WE ARE JUST -- THE ONLY ISSUE THAT HAS COME
UP IS THEY'RE NOW GIVING US A RECEIPT THAT SHE SAYS WAS HER
PURCHASE, AND THE RECEIPT FROM APPLE SHOWS THAT THE TWO -- THE
TWO DEVICES THAT COUNSEL JUST IDENTIFIED -- AND WE'LL HAVE
COPIES MADE FOR EVERYBODY -- ARE FROM THE ROSEN LAW FIRM.
AND WE WILL PUT ON A WITNESS TO CERTIFY THIS DOCUMENT.
AND THE JURY IS GOING TO BE TOLD THAT THIS WITNESS HAS NOT
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INTERROGATORY RESPONSE SAYS, "I BOUGHT THREE IPODS." OKAY?
THESE ARE THE -- TWO OF THEM ARE BEFORE THE CLASS PERIOD AND
ONE IS -- ONE IS THE ONE THAT DR. NOLL SAYS WOULD HAVE NO
DAMAGES ASSOCIATED WITH IT.
THE TWO IPODS THAT ARE BEING DISCLOSED WERE PURCHASED
BEFORE THAT INTERROGATORY RESPONSE AND WERE NOT DISCLOSED IN
THE INTERROGATORY RESPONSE SO APPLE IS NOT PUT ON NOTICE THAT
THESE IPODS EXIST.
THEN IN THE CLASS CERTIFICATION MOTION, WHICH IS 2011,
PLAINTIFFS SAY, AS I SAID, THAT -- THAT THEIR THREE PROPOSED
PLAINTIFFS -- WE'RE DOWN TO TWO -- HAVE SUBMITTED THEIR IPODS
FOR FORENSIC INSPECTION BY APPLE COUNSEL SO -THE COURT: OKAY. SO AT THAT TIME, YOU HAD SOME
INFORMATION ABOUT WHAT THE PLAINTIFFS APPARENTLY HAD OR DIDN'T
HAVE, AND YOU DIDN'T RAISE THE ISSUE THAT IT -- THAT THEY
WEREN'T -- IN 2011, YOU DIDN'T RAISE THE ISSUE THAT YOU
THOUGHT THAT THEY WEREN'T QUALIFIED BECAUSE THEY DIDN'T HAVE
AN IPOD?
MR. ISAACSON: THAT -- THAT IS CORRECT. BECAUSE WITH
THIS -- OBVIOUS -- TWO OF THEM ARE OBVIOUSLY OUTSIDE THE CLASS
PERIOD. I DON'T THINK THE PLAINTIFFS HAVE EVER CLAIMED ANY
DAM -- THAT WAS SELF-EVIDENT.
THE THIRD IPOD, IN ORDER TO IDENTIFY THAT WAS FIFTH
GENERATION, TOOK SOME -- TOOK PUTTING PUZZLE PIECES TOGETHER
BECAUSE SHE SAID, "I BOUGHT AN IPOD ON THIS DATE IN SEPTEMBER
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PURCHASED A DEVICE AND THESE TWO DEVICES WERE PURCHASED BY THE
ROSEN LAW FIRM.
SO WE'RE -- I'M DELIVERING THE INFORMATION TO YOU AS I
HAVE IT.
THE COURT: OKAY. RESPONSE.
MS. SWEENEY: YOUR HONOR, I -- WE -- OR MS. ROSEN
CALLED APPLE THIS MORNING AND IS GETTING THE RECEIPTS. I
HAVEN'T SEEN THIS INFORMATION THAT MR. ISAACSON IS REFERRING
TO. THEY HAVE A LOT OF INFORMATION ABOUT THE PURCHASES OF
PLAINTIFFS AND CLASS MEMBERS WHICH THEY HAVE WITHHELD, AND IT
SEEMS TO ME GROSSLY UNFAIR FOR APPLE TO RAISE IT NOW WHEN THEY
HAVE HAD THIS INFORMATION ALL ALONG AND CHOSE STRATEGICALLY TO
WAIT TO BRING IT UP NOW.
MR. ISAACSON: WE HAD ABSOLUTELY NO REASON TO SEARCH
THE PURCHASES OF THE ROSEN LAW FIRM.
THE COURT: SO YOU CAN -- YOU CAN SEARCH BY NAME?
AND IF SO, WHY DIDN'T YOU SEARCH BY NAME OF THE NAMED
PLAINTIFFS?
MR. ISAACSON: YOU CAN SEARCH BY NAME. IT'S NOT
NECESSARILY COMPLETE. SO WHEN YOU SEARCH HER NAME, YOU DON'T
TURN THIS UP. BUT I CAN'T HAND THAT TO YOU AND SAY THEREFORE
SHE DIDN'T HAVE A PURCHASE. THE RECORDS ARE NOT PERFECT.
IF WE CAN -- WHEN WE GET A -- A SERIAL NUMBER, WE CAN THEN
PULL UP A RECEIPT MANY TIMES, INCLUDING THIS CASE. BUT IF I
SEARCH MY NAME IN THE APPLE DEVICE, THERE'S MANY REASONS MY
EXHIBIT 2
Case4:05-cv-00037-YGR
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Timothy O'Neil
The Apple iPod iTunes Anti-Trust Litigation

Page 1
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1 UNITED STATES DISTRICT COURT
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
2 NORTHERN DISTRICT OF CALIFORNIA
3 OAKLAND DIVISION
3 OAKLAND DIVISION
5 THE APPLE iPOD iTUNES ) Lead Case No. C 05-00037
5 THE APPLE iPOD iTUNES ) Lead Case No. C 05-00037
ANTI-TRUST LITIGATION )
ANTI-TRUST LITIGATION )
6 )
6 )
7 ___________________________ )
7 ___________________________ )
8 This Document Relates To: )
8 This Document Relates To: )
9 ALL ACTIONS )
9 ALL ACTIONS )
___________________________ )
___________________________ )
10
10
11
11
12
12
13
13
14
14 Confidential - Attorneys' Eyes Only,
15 CONFIDENTIAL - ATTORNEYS' EYES ONLY
15 Videotaped Deposition of TIMOTHY PATRICK O'NEIL, taken
16 VIDEOTAPED DEPOSITION OF TIMOTHY PATRICK O'NEIL
16 on behalf of the Plaintiffs at 1999 Harrison Street,
17 Friday, December 5, 2014
17 Suite 900, Oakland, California 94612, beginning at
18 Oakland, California
18 4:21 p.m. and ending at 5:37 p.m., on Friday,
19
19 December 5, 2014, before Hanna Kim, CLR, CSR No. 13083.
20
20
21
21
22
22
23 Reported By:
23
24 Hanna Kim, CLR, CSR No. 13083
24
25 Job No.: 10013785
25
Page 3
Page 4
1 APPEARANCES OF COUNSEL:
1 INDEX OF EXAMINATION
3 For the Plaintiffs:
3 WITNESS: TIMOTHY PATRICK O'NEIL
4 ROBBINS GELLER RUDMAN & DOWD, LLP
5 BY: CARMEN A. MEDICI, ESQ.
5 EXAMINATION PAGE
6 BY: ALEXANDRA S. BERNAY, ESQ.
6 BY MR. MEDICI: 7, 57
7 BY MR. RINGGENBERG: 54
8 San Diego, California 92101
9 619.231.1058
10 INDEX OF EXHIBITS
11 xanb@rgrdlaw.com
11 O'NEIL DEPOSITION EXHIBITS PAGE
12
12 Exhibit 1 "Declaration of Tim O'Neil in 15
13 For the Defendant, Apple Inc. and the Witness:
13 Support of Apple Inc.'s Motion
14 BOIES, SCHILLER & FLEXNER LLP
14 to Dismiss for Lack of
15 BY: KIERAN PAUL RINGGENBERG, ESQ.
15 Subject-Matter Jurisdiction
16 1999 Harrison Street, Suite 900
16 Pursuant to Federal Rules of
17 Oakland, California 94612
17 Civil Procedure 12(b)(1) and
18 510.874.1000
18 12(h)(3) or Rule 50; Exhibits 1
19 kringgenberg@bsfllp.com
19 and 2; 8 pages
20
20 Exhibit 2 "Internal Reprint Copy," dated 45
21 Also Present:
21 September 20th, 2006; Trial
22 NOREEN KRALL, ESQ., Vice President Chief
22 Exhibit 2855; 2 pages
23 Litigation Counsel of Apple Inc.
23 Exhibit 3 document dated September 20th, 45
24 FRANK CLARE, Video Specialist
24 2006; Trial Exhibit 2857; 2
25
25 pages
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1 he performed at the direction of lawyers in connection

2 with this case or any other case, other than the work
3 he did, as described in the declaration, on
4 December 3rd, December 4th.
5 MR. MEDICI: Again, I'll just have a standing
6 disagreement.
7 BY MR. MEDICI:
8 Q. So, aside from searching GCRM -- and let's -9 let's -- let's start with this first iPod in
10 paragraph -- paragraphs 4 and 6.
11 Did you do anything else, aside from what's
12 described here, in -- in order to locate information
13 about that iPod?
14 A. No. I was provided the serial number, and
15 looked it up in GCRM. GCRM took me to POS, and that's
16 where I got the invoice.
17 Q. Is it possible that one person could have more
18 than one profile on GCRM?
19 A. Very much so, as you could see by the stack of
20 paper that you received.
21 Q. I haven't looked at that yet.
22 If -- if I went and purchased an iPod at the
23 Apple Store, would any of the information from that
24 transaction end up in GCRM?
25 A. I -- I -- I honestly -- like without you
1 inputting the information?

2 Q. Yes.
3 A. I don't know.
4 Q. You don't know one way or the other?
5 A. I -- I don't know. I'm not actually a
6 technical person. Like I don't have a technical role,
7 so I don't know if they're on the back end somewhere,
8 the one database, POS inputs information into GCRM, you
9 know.
10 Q. Do you know -- strike that.
11 Are you able to edit records in GCRM?
12 A. GCRM is a customer relations management tool,
13 whereby tech support people that have access to, you
14 know, take calls, et cetera, can edit the -- the
15 information in there. But like it's basically, you
16 know, oh, you need to change your address or -- or you
17 need to enter a case note, like the notes of a call -18 that kind of thing. That's pretty much what GCRM is.
19 Q. So what information does the point-of-sale
20 database have in it?
21 A. I -- I'm not from the retail side. I don't
22 have much background. I just am able to pull the
23 invoices of the customer purchases.
24 Q. Have you ever used the point-of-sale database
25 to do anything but pull the invoices of customer
Page 39
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1 purchases?
2 A. No.
3 Q. Do you have any idea what kind of information
4 is in that system, aside from the information that is
5 included in Exhibits 1 and 2?
6 A. It's the POS database, so it's basically
7 the -- I would assume, but, again, I'm not an expert,
8 that when the customer makes a purchase, the -- you
9 know, the product is scanned. And then, the -- you
10 know, the card is swiped or the payment method is
11 entered. And then, you know, somewhere in the back
12 end, it generates the invoice, which can be e-mailed to
13 a customer or printed and taken home with them. And
14 that's -- that's basically what it is; it's
15 point-of-sale.
16 Q. Do you know if an employee can input any
17 information into that record before it gets sent to the
18 database?
19 A. I -- you know, just from having purchased
20 stuff, yes, they can enter e-mail addresses, from my
21 understanding, or they can update the name of the
22 person, if the individual wants to update a name or
23 something associated with it.
24 Q. So, if an individual wants to change the name
25 associated with a purchase, they're able to do that at
1 the point-of-sale?
2 A. I -- I don't -- I -- yes, I believe so. I
3 mean, I'm just speaking from having made purchases. My
4 name is Tim O'Neil or -- you can put it in under "T.
5 O'Neil" or -- I'm just -6 Q. But -- but as far as -7 A. I don't work in -- in retail.
8 Q. As far as you know, that field is -- is
9 editable?
10 A. I believe so, yes, but only at the time of
11 purchase.
12 Q. How long have you held the job that you have
13 currently at Apple?
14 A. Three years.
15 Q. What did you do before that?
16 A. I worked in AppleCare. I worked in a role
17 called executive relations.
18 I can explain that if you want. If not...
19 Q. Yeah, go ahead.
20 A. I was hired in 2005, worked in executive
21 relations, which responds to escalations on behalf of
22 the executive team, makes outreach to the customer,
23 resolves customer concerns.
24 Q. So when -25 A. White glove support.
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1 (O'Neil Deposition Exhibit 2 was marked.)

3 BY MR. MEDICI:
4 Q. Court reporter is going to hand you O'Neil 2
5 and O'Neil 3. O'Neil -6 THE WITNESS: Here you go.
7 BY MR. MEDICI:
8 Q. I'm actually going to hand O'Neil 4 to you, as
9 well.
10 MR. RINGGENBERG: I've got 2 and 4. I'm not
11 sure I got 3. What was 3?
12 Oh, thank you. Sorry.
14 BY MR. MEDICI:
15 Q. Okay. For the record, Exhibit -- O'Neil
16 Exhibit 2 is something that's entitled "Internal
17 Reprint Copy" dated September 20th, 2006. It's a
18 two-page document, Trial Exhibit 2855.
19 Exhibit 3, Trial Exhibit 2857. Has the same
20 date.
21 And then Exhibit 4 is a one-page e-mail
22 attaching a receipt called a duplicate receipt from
23 September 11th, 2008.
24 Did I correctly identify those three
25 documents?
Page 47
1 Q. Let me -- let me start again here.
1 A. Yeah, I believe so.

2 Q. Can you please turn to Exhibit 2 of your
3 declaration.
4 A. Mm-hmm.
5 Q. And then can you also turn to Exhibit 4. I'd
6 like to compare page 2 of Exhibit 4 to this Exhibit 2
7 of your declaration.
8 My first question is, what's the difference
9 between an internal reprint copy and a duplicate
10 receipt?
11 A. So, I guess there -- the easiest way to
12 describe it is that, in POS, there's different -13 different versions of the same data that you can pull.
14 I guess that's the best way to put it.
15 Q. Okay. Why -- why does the Exhibit 2 to your
16 declaration have a customer name and Exhibit O'Neil 4
17 does not?
18 MR. RINGGENBERG: Objection. Foundation as to
19 O'Neil 4.
20 THE WITNESS: I don't have an answer for that.
21 BY MR. MEDICI:
22 Q. Can you tell me what O'Neil Exhibit 4 is?
23 A. It's an e-mail to Marianna Rosen -- or, sorry,
24 from Marianna Rosen -- originally to Marianna Rosen
25 to -Page 48
1 this is about the same purchase?

2 Do -- do you see on the first page where it
2 A. Yes.
3 says "shorthills@apple.com"?
3 Q. Okay. Now, I'd like to -- I'd like to ask a
4 A. Yeah.
4 couple more questions about what the difference is
5 Q. Do you recognize that to be the Short Hills,
5 between an internal receipt -- an internal reprint copy
6 New Jersey, Apple Store?
6 and a duplicate receipt.
7 A. Yes.
7 Why -- why -- would you be able to pull, for
8 Q. And then they're e-mailing
8 instance, a duplicate receipt?
9
; is that correct?
9 A. So, this is the one that was actually sent to
10 A. I understand that, yes.
10 a customer. I don't -- I don't know if it's a
11 Q. And then, attached to that e-mail is a -- a
11 different format or anything like that. It appears
12 duplicate receipt which has a bar code on it, and that
12 that she requested it, and they e-mailed it to her.
13 bar code is R0435033178.
13 And from my own recollection of having receipts
14 You see that?
14 e-mailed to me, it looks similar to that.
15 A. I do.
15 The internal reprint is -- it's an -- it's the
16 Q. And then, if you look over at Exhibit 2 to
16 reprint. It has more data on it.
17 your declaration, Trial Exhibit 2884, do you see that
17 And aside from them being different versions,
18 the receipt ID on that document matches the receipt ID 18 I -- I don't know. Again, I'm not the -- the POS
19 of the duplicate receipt?
19 expert or worked from -- in retail, so...
20 A. I'm sorry, which -- which documents again?
20 Q. Okay. The question was -- was, are you able
21 Four and which document?
21 to pull a duplicate receipt rather than an internal
22 Q. Exhibit 2 to your declaration.
22 reprint copy?
23 A. Oh.
23 A. So, in -- in this format, I -- I think it's
24 Yes, I see that they are the same invoices.
24 when it's e-mailed to a customer. And I don't do that,
25 Q. And does that tell you that these are the -25 so I don't know if it -- it looks like exactly the same
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1 or anything like that.

2 Q. Same database?
3 A. I would probably say yeah, but I don't know
4 that functionality at all. I mean, it's POS, so it's
5 point-of-sale system.
6 Q. All right. Let's turn to your -- to your
7 declaration, please.
8 A. Okay.
9 Q. You use the word "serialized" in here?
10 A. Yes.
11 Q. What does that mean?
12 A. So, GCRM tracks serialized Apple products.
13 And by serialized, it's products that have serial -14 serial numbers associated with them. So it would be
15 Macs, iPods, iPhones, iPads, cinema displays, Apple
16 TVs, but it wouldn't be your keyboard or your mouse or
17 cables or anything like that. It's serialized
18 products.
19 Excuse me.
20 And so, that's what GCRM has in it.
21 Q. Okay. Can you please turn to Exhibit 3,
22 O'Neil Exhibit 3.
23 A. Yep.
24 Q. Can you identify Trial Exhibit 2857, O'Neil 3?
25 A. Yes.
1 Q. What is this?
2 A. That is -- if you recall earlier in the
3 conversation, I mentioned the installed product page
4 from GCRM. That's -- that's what it looks like. So
5 all of the serial numbers that we've been discussing
6 all have pages similar to this in GCRM.
7 Q. Are you able to search any of these fields
8 that are available on this page?
9 A. I'm able for -- to find a product. This is
10 not the actual search screen.
11 Does that make sense?
12 This is the results screen after -- after you
13 do the search. So I'm only really able to do the
14 search via serial number in GCRM. I don't believe I
15 can -- yeah, I don't think I can pull any transactional
16 data. It's just associated with the serial number.
17 Q. But didn't you say earlier that you could run
18 searches by name?
19 A. Yeah, but that's a different -- you're asking
20 about the installed product page, and I'm talking about
21 the installed product page. So I get to this page here
22 via serial number search.
23 Q. Okay. I -- on the right side, it says
24 "channel type." It's about three or four inches down
25 the page.
Page 51
1 What does indirect channel mean?

2 A. I'm -- I'm not in -- in sales, so I'm really
3 not sure it's -- exactly what it means.
4 Q. Down -- down at the bottom of the page, it has
5 "date created" and "date modified."
6 Do you see that?
7 A. Yep.
8 Q. Do -- do you know -- do you know what that -9 what the -- what that means, aside from -- like do -10 do you know what those particular fields mean, aside
11 from just your experience?
12 A. I -- I -- I don't. I believe it's kind of
13 tracked to, I mean, the actual -- the actual product
14 itself. Because all these products and stuff -- not to
15 get boring or too technical, but all the serial
16 numbers, even before they're sold, they live all in
17 SAP and all -- who does the manufacturing and all the
18 stuff like that. But I would venture a guess that it
19 was created similarly when it was shipped. And then,
20 when it was purchased, that modified the record. I
21 mean, I -- I can only speculate.
22 Q. Okay. That's fine.
23 Is there any way that you can tell that -24 from anything that we have here or that is -- any of
25 these exhibits, including your declaration -- strike
Page 52
1 that. I'll start over so I can get a clean question.

2 Is there -- is there anything here today that
3 indicates that any of these purchases were made
4 anywhere but in a physical store?
5 A. They all appear to have been made at a
6 physical store, an Apple retail store.
7 MR. MEDICI: Okay. Can we take two or three
8 minutes? I want to look over this document you gave
9 me, and then I'll probably I would have five minutes
10 left or so.
11 MR. RINGGENBERG: Fine.
12 MR. MEDICI: Thanks.
13 THE VIDEOGRAPHER: We're off the record at
14 5:19 p.m.
15 (Short recess taken.)
16 THE VIDEOGRAPHER: We're back on the record at
17 5:26 p.m.
18 BY MR. MEDICI:
19 Q. Mr. O'Neil, I just a few more questions.
20 Aside from personal experience, you know
21 nothing about the data collecting process of -- at the
22 point-of-sale for the Apple point-of-sale database; is
23 that correct?
24 A. That's correct.
25 Q. I'd also like to request any -- any documents
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1 guess it's called ISNT -2 THE COURT REPORTER: What's it called, ISN -3 THE WITNESS: ISNT. It's a technical support
4 kind of -- not technical support, but like the whole
5 technical side of the retail side.
6 MR. RINGGENBERG: Okay. Thank you.
7 I don't have any more questions.
8 FURTHER EXAMINATION
9 BY MR. MEDICI:
10 Q. Can you spell the name of the first
11 individual, Rob, that you talked to about the
12 point-of-sale entry information?
13 A. His last name is Maiolo. And I believe it's
14 spelled M-A-I-O-L-O.
15 Q. And then he told you that he didn't understand
16 how it worked and that you should talk to somebody
17 else; is that correct?
18 A. He said he believed that it was done that way
19 but you should make sure.
20 Q. Did he provide you any basis on his belief?
21 A. Aside from his working knowledge of being on
22 the retail side?
23 Q. What do you mean, "being on the retail side"?
24 A. He works as the attorney that supports Apple
25 retail.
1 Q. Okay. So he's not actually swiping cards?

2 A. No, he doesn't swipe cards, but he has a very
3 good understanding of all the things on the retail
4 side, so he's at least a good jumping off point. So if
5 I have a question, I would ask him and he would put me
6 in the right direction.
7 Q. Great.
8 So then he pointed you in the direction of
9 Scott -- what's his last name?
10 A. Lauretis, L-A-U-R-E-T-I-S.
11 Q. And -12 A. And I'm not 100 percent clear, but that's
13 close.
14 Q. And -- and you spoke to this individual?
15 A. I did.
16 Q. When?
17 A. Actually, today.
18 Q. For how long?
19 A. As long as it took me to ask the question,
20 like five minutes or so.
21 Q. And what is his job?
22 A. I don't know his specific role. I don't...
23 Q. So is he a -- does he work at the
24 point-of-sale?
25 A. He works in retail, and he has a very strong
Page 59
1 understanding of point-of-sale, which is why I was

2 recommended to call him.
3 MR. MEDICI: Object to the answer and move to
4 strike to -- the -- it's speculation there.
5 BY MR. MEDICI:
6 Q. So no -- neither of these individuals that you
7 talked to, that you based your understanding of how
8 this particular field is populated, have any experience
9 actually swiping credit cards at the point-of-sale; is
10 that correct?
11 A. I don't know Scott's specific role at Apple,
12 but I know it is on the technical side of how our POS
13 system is -- works.
14 Q. And then he told you that certainly,
15 100 percent, that field is populated by what again?
16 A. So the name field on a POS transaction that
17 has a name, when there's a credit card associated with
18 it -- so you can get -- you can buy something with
19 cash, right. You don't actually have to provide your
20 name when you buy something with cash. If you
21 provide -- buy something with a credit card or a debit
22 card, you would be -- I mean, that private information
23 is actually -- like that name -- name -- I wouldn't say
24 private information, but your name is actually
25 associated with the card. I mean, I -- again, I make
Page 60
1 purchases. In Target, you want to e-mail it, sure,

2 fine.
3 Q. And does -- does it have every authorized user
4 on a card? Is that provided in -- in the name field?
5 A. I don't have an understanding of that, so I
6 can't answer -7 Q. Do you know if the customer field captures
8 anything else -- I'm sorry. Strike that question.
9 Do you know if the point-of-sale database
10 captures any other information in the customer field
11 except for the name associated with the credit card?
12 A. If point-of-sale captures -- can you just
13 repeat the question, please?
14 Q. Let me ask one set of question first.
15 Does the point -- your testimony is that
16 the -- based on what someone else told you, who doesn't
17 actually swipe credit cards, that the customer field is
18 populated by the name on a credit card if a credit card
19 is used; is that correct?
20 A. So consumers or, actually, the -- the -- well,
21 if it's self-checkout, consumers actually swipe their
22 credit cards. And if it's the -- the actual retail
23 salesperson that swipes the credit cards, they don't
24 have the -- they probably -- they don't work on the
25 back end of the POS systems. I mean, that's why I
Page 57..60
www.aptusCR.com
YVer1f
Document969-2
Filed12/07/14
Confidential
- Attorneys'
Timothy O'Neil

Page 61
Page 62
1 spoke with or was recommended to speak to somebody that 1 testimony given by Timothy O'Neil. The one original
2 works on the back end of the POS system and has an
3 understanding of.
4 So, that said, the name on the invoice when a
5 credit card is swiped, from my understanding, is
2 disc will be retained by Aptus. We're off the record

3 at 5:36 p.m.
4 (Discussion off the record.)
5 THE COURT REPORTER: Just to confirm, you want
6 the final transcript tonight, correct?
6 associated with the credit card, but it can be edited

7 based on the customer request.
7 MR. RINGGENBERG: Tomorrow is fine.

8 MR. MEDICI: We have a brief due tomorrow, so
8 Q. Which -- can you read to me the -9 the information on that card (indicating) ; not the
9 we want it tonight.
10 (Proceedings concluded at 5:37 p.m.)
11
10 number, but the -11 A. "Carmen Medici," and "RTRND, LLP."

12 Q. Okay. And what would be put in the customer
13 field if that card was swiped at an Apple Store?
14 A. I don't know because I'm not an POS expert.
15 Q. All right. Thank you.
16 MR. RINGGENBERG: You don't get that back. He
17 gets to keep that.
12
13
14
15
16
17
18
18 MR. MEDICI: You will note I didn't mark it.

19 It's almost maxed out anyway.
19
20
20 I don't think I have any further questions.

21 Thank you for your time. See you soon.
22 Do you have any redirect or -23 MR. RINGGENBERG: No. So we can go off the
24 record.
25 THE VIDEOGRAPHER: This concludes today's
21
22
23
24
25
Page 63
Page 64
1 DECLARATION UNDER PENALTY OF PERJURY
1 CERTIFICATE OF REPORTER
2 Case Name: The Apple iPod iTunes Anti-Trust Litigation
3 Date of Deposition: 12/05/2014
3 I, Hanna Kim, a Certified Shorthand Reporter,
4 Job No.: 10013785
4 do hereby certify:
5 That prior to being examined, the witness in
6 I, TIMOTHY O'NEIL, hereby certify
6 the foregoing proceedings was by me duly sworn to
7 under penalty of perjury under the laws of the State of
7 testify to the truth, the whole truth, and nothing but
8 ________________ that the foregoing is true and correct.
8 the truth;
9 That said proceedings were taken before me at
9 Executed this ______ day of

10 __________________, 2014, at ____________________.
10 the time and place therein set forth and were taken
11 down by me in shorthand and thereafter transcribed into
11
12 typewriting under my direction and supervision;

12
13 I further certify that I am neither counsel
13
14 for, nor related to, any party to said proceedings, not
14 _________________________________
15 in anywise interested in the outcome thereof.
15 TIMOTHY O'NEIL
16 In witness whereof, I have hereunto subscribed
16
17
18
19 NOTARIZATION (If Required)
17 my name.
18
19 Dated: 5th day of December, 2014
20
20 Subscribed and sworn before me
21
21 this _____ day of_______, 2014.
22
22
23 _____________________________
23 _______________________________
Hanna Kim
24 (signature and seal of Notary)
24 CLR, CSR No. 13083
25
25
Page 61..64
www.aptusCR.com
EXHIBIT 3
11111~--------------------------------
From: Marianna Rosen [mail to :marianna rosen@yahoo.com]
Sent: Thursday, December 04, 2014 8:00AM

To: Xan Bernay; Patrick Coughlin; Bonny Sweeney
Subject: Fwd: Your receipt from Apple Store, Short Hills
Begin forwarded message:
From: shorthills@apple.com
Date: December 4, 2014 at 07:57:07 PST
To: mari anna roscn(~uyah oo. com
Cc: shorthillsC(4ctJWJ e.com
Subject: Your receipt from Apple Store, Short Hills
Reply-To: Do not rcplyCi:V.app le.com
Thank you for shopping at the Apple Store.
To tell us about your experience, click here.

DUPLICATE RECEIPT
Apple Store, Short Hills

1200 Morris TPKE STE B102
Short Hills, NJ 07078
shorthi lls@app le.com
973-564-5813
www.app le.com/ retail / shorthills
September 11,2008 11:09 AM
$ 149.00
iPod nano 8GB - green

Part Number: MB745LL/ A
Serial Number: YM8361TK3QX
Return Date: Sep. 25, 2008
For Support, Visit: APPLE.COM/SUPPORT
$229.00
iPod touch 8GB

Part Number: MB528LL/ A
Serial Number: 1A836F5F201
Return Date: Sep.' 25, 2008
$ 22.90 fee if opened
For Support, Visit APPLE.COM/ SUPPORT
$ 99.95
Shure SE110- White

Part Number: TM267LL/A
Return Date: 5ep. 25, 2008
Customer Support 800-516-2525 ext. 4
Sub-Total
$ 477.95
Tax@7.0%
$ 33.46
Total
$ 511 .41
Amount Paid Via Visa (A)
$511.41
xxxxxxxxxxxxxxxxxxxxxAban
081764
11111111111111111111111111111111111111111111111111111111111111111
*R0435033178*
http://www.apple.com/legal/sales_policies/retail.html
Tell us about your experience at the Apple Store.
Visit www.apple.com/feedback/retail.html
EXHIBIT 4

Sheet 1
I N D E X

PAGE
VOL.
411
454
CROSS-EXAMINATION BY MS. DUNN
514
REDIRECT EXAMINATION BY MR. COUGHLIN
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DIRECT EXAMINATION BY MS. BERNAY
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593
REDIRECT EXAMINATION BY MS. BERNAY
611
MARTIN, DAVID
)
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____________________________)
NO. C 05-00037 YGR
PAGES 402 - 622

JURY TRIAL VOLUME 3
OAKLAND, CALIFORNIA
WEDNESDAY, DECEMBER 3, 2014
FARRUGIA, AUGUSTIN

APPEARANCES:
ROSEN, MARIANNA
FOR PLAINTIFFS:
BY:

PATRICK COUGHLIN,
CHARLES MCCUE,
CARMEN A. MEDICI,
--O0O--
BY:

ATTORNEY AT LAW
(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:


A P P E A R A N C E S (CONT'D.)
E X H I B I T S
PLAINTIFFS' EXHIBITS
269
FOR DEFENDANT:
BY:
BY:
BY:
BY:

5301 WISCONSIN AVENUE NW
WASHINGTON, D.C. 20015
WILLIAM A. ISAACSON,
KAREN L. DUNN,
MARTHA L. GOODMAN, ATTORNEYS AT LAW
1999 HARRISON STREET, SUITE 900
OAKLAND, CALIFORNIA 94612
MEREDITH R. DEARBORN, ATTORNEYS AT LAW
JONES DAY
555 CALIFORNIA STREET, 26TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104-1500
DAVID C. KIERNAN, ATTORNEYS AT LAW
APPLE
1 INFINITE LOOP, MS 169-2NYJ
CUPERTINO, CALIFORNIA 95014
SCOTT B. MURRAY,
SENIOR LITIGATION COUNSEL
--O0O--
EVID
576
VOL.
3
271
576
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820
576
871
577
927A
576
DEFENDANT'S
EXHIBITS
W/DRAWN
W/DRAWN
IDEN
EVID
VOL
2239
IDEN
575
2247
575
2265
575
2309
575
2329
578
2416
578
2446, 2446A
485
2776
575
2784
619
--O0O--


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BY MS. BERNAY:
Q. WHERE ARE YOU FROM ORIGINALLY?
A. I'M FROM RUSSIA, SOVIET UNION FORMERLY. AND I CAME HERE
IN 1996, AND I BECAME A CITIZEN OF THE UNITED STATES IN 2003.
Q. YOU TOOK THE CITIZENSHIP TEST AND ALL THAT?
A. YES, OF COURSE.
Q. WONDERFUL.
CAN YOU TELL ME A LITTLE BIT ABOUT YOUR EDUCATIONAL
BACKGROUND?
A. RIGHT. I HAVE A DEGREE FROM UNIVERSITY OF MOSCOW AND I
HAVE A GRADUATE DEGREE IN INTERNATIONAL FINANCIAL AND BANKING
FROM COLUMBIA UNIVERSITY IN NEW YORK. I GRADUATED IN 2000.
Q. TELL ME A LITTLE BIT ABOUT YOUR WORK HISTORY SINCE
GRADUATING FROM COLUMBIA?
A. RIGHT AFTER MY GRADUATION IN 2000, I WENT TO WORK FOR AN
INVESTMENT BANK. IT WAS CALLED SOLOMON, SMITH BARNEY AT THAT
TIME. IT LATER BECAME CITIGROUP. I WORKED THERE FOR FOUR AND
A HALF YEARS.
AND THEN RIGHT AFTER I LEFT THE BANKING, I WORKED FOR MY
HUSBAND'S LAW PRACTICE JUST DOING SOME BACK OFFICE STUFF.
AND I -- SINCE THEN, I AM NOT WORKING THERE ANY MORE SINCE
2012 AND I'M TAKING SOME CLASSES IN COLUMBIA UNIVERSITY TO
PREPARE MYSELF FOR PH.D. STUDIES IN COMPARATIVE LITERATURE.
Q. AND YOU ALSO TAKE CARE OF YOUR CHILDREN AS WELL; IS THAT
RIGHT?
DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
583
A. RIGHT. I HAVE TWO BOYS, 8 AND 15.
Q. AND IS IT RIGHT THAT WHEN YOU WERE FIRST DEPOSED IN THIS
MATTER, YOUR YOUNGER SON WAS ONLY THREE MONTHS OLD; IS THAT
RIGHT, APPROXIMATELY?
A. YES, I THINK SO. HE WAS BORN IN OCTOBER 2006.
Q. SO HOW OLD IS HE NOW?
A. EIGHT AND CHANGE.
Q. YOUR OLDEST SON IS HOW OLD?
A. FIFTEEN.
Q. AND YOU UNDERSTAND THAT YOU'RE HERE TODAY TO DISCUSS SOME
ISSUES RELATED TO YOUR PURCHASES OF IPODS; IS THAT RIGHT?
A. RIGHT.
Q. AND HAVE YOU EVER OWNED AN IPOD?
A. YES.
Q. HAVE YOU -- WHEN DID YOU PURCHASE YOUR FIRST IPOD?
A. I BELIEVE THAT I PURCHASED MY FIRST IPOD IN FEBRUARY,
MARCH OF 2004.
AND I BOUGHT ANOTHER IPOD, IT WAS IPOD NANO FOR MY LITTLE
SISTER AS A GIFT FOR HER GRADUATION I THINK IN JULY OF THE
SAME YEAR.
THEN I BOUGHT, I GUESS IT'S NEXT GENERATION IPOD, A BLACK
IPOD IN SEPTEMBER 2006.
I BOUGHT AN IPOD NANO. I THINK IT'S CALLED NANO, THE
GREEN KIND OF SLICK NARROW IPOD WHICH IS SMALLER THAN THE ONES
PRIOR, IN 2007, IN THE FALL OF 2007.
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AND THE LAST IPOD I BOUGHT WAS THE IPOD TOUCH. AND I
THINK I BOUGHT IT AS A HANUKKAH GIFT FOR MY SON IN DECEMBER OF
'08.
Q. AND DID YOU PURCHASE ALL OF THOSE IPODS AT AN APPLE STORE?
A. I THINK, YOU KNOW, I DON'T REMEMBER A HUNDRED PERCENT, BUT
I THINK IT'S A VERY GOOD ASSUMPTION THAT I BOUGHT IT AT THE
APPLE STORE IN SHORT HILLS MALL, WHICH IS NOT FAR FROM MY
HOUSE. THAT'S WHERE I BOUGHT MOST OF MY APPLE PRODUCTS.
Q. AND THE SHORT HILLS MALL IS IN NEW JERSEY?
A. YES. IT IS IN SHORT HILLS.
Q. HAVE YOU EVER PURCHASED ANYTHING ELSE FROM APPLE?
A. YES. I HAVE A PHONE. SO I HAVE A MAC BOOK AIR AND A
DESKTOP.
Q. HAVE YOU EVER PURCHASED MUSIC FROM APPLE?
A. AND THEN MUSIC FOR MY ITUNES LIBRARY AND VIDEOS, TOO.
Q. THAT IS A NUMBER OF APPLE PRODUCTS; IS THAT RIGHT?
A. IT'S QUITE A NUMBER, YES.
Q. WHY HAVE YOU PURCHASED SO MANY APPLE PRODUCTS?
A. WELL, YOU KNOW, I LIKE APPLE PRODUCTS. I THINK THEY ARE
GOOD PRODUCTS.
I ALSO, AFTER I BOUGHT MY FIRST IPOD, WHICH WAS IN 2004, I
IMMEDIATELY PROCEEDED IN BUILDING THE LIBRARY WHICH CONSISTED
OF A GOOD PERCENTAGE OF SONGS THAT I BOUGHT FROM ITUNES STORE,
WHICH CAME TOGETHER WITH THE SOFTWARE. AND ALSO COPYING MY CD
LIBRARY.
585
SO ONCE I BUILD THAT LIBRARY, I SORT OF HAD TO USE IPOD
PRODUCTS BECAUSE I COULDN'T USE ANY OTHERS, MP3 PLAYERS. SO I
WAS JUST USING MY LIBRARY AND LOADING IT THERE.
Q. YOU MENTIONED THAT YOU GOT MUSIC FROM CD'S AND ALSO FROM
THE ITUNES STORE.
WAS THERE ANY OTHER SOURCES OF MUSIC THAT YOU GOT TO PUT
ON YOUR IPOD?
A. NO. I DON'T THINK I COULD HAVE DONE IT. I TRIED TO BUY
MUSIC FROM DIFFERENT WEBSITE, BUT IT DIDN'T -- I WAS UNABLE TO
SAVE IT ON MY -- IN MY ITUNES LIBRARY. SO THE SOURCE OF MY
ITUNES LIBRARY IS PRIMARILY ITUNES PURCHASES AND THE SONGS
FROM MY CD COLLECTION.
Q. YOU MENTIONED THAT YOU TRIED TO BUY MUSIC FROM A DIFFERENT
WEBSITE, BUT YOU WERE UNABLE TO SAVE IT IN YOUR ITUNES
LIBRARY.
CAN YOU TELL ME A LITTLE BIT MORE ABOUT THAT?
A. I DON'T REMEMBER ALL THE DETAILS AND MECHANICS OF IT
PRECISELY. IT WAS QUITE A BIT OF TIME AGO. BUT I THINK WHAT
HAPPENED WAS I JUST RECEIVED AN EMAIL FROM A FRIEND OF MINE
THAT, YOU KNOW, I WAS INTO -- I PRIMARILY USED MY IPOD AT THAT
TIME FOR WORKING OUT. SO I WAS INTO THIS MUSIC THAT WAS SORT
OF VERY FAST BUT ALSO IT WOULD GET BORING VERY FAST, SO I WAS
SEARCHING FOR DIFFERENT MUSIC.
AND ACTUALLY AT THE TIME ITUNES WASN'T THAT BIG, THE MUSIC
STORE, SO I WAS LOOKING FOR WHERE ELSE I COULD BUY THE MUSIC.

Sheet 48
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NOT ENOUGH REALLY, YOU KNOW, TO MAKE A DIG DEAL OF IT. WHEN I
LEARNED ABOUT THIS AND I UNDERSTOOD, I JUST -- I MAY SOUND A
LITTLE NAIVE, BUT I ACTUALLY THOUGHT THAT IF THIS BECOMES AN
ISSUE THAT PEOPLE WILL KNOW ABOUT AND MAYBE THINGS WILL CHANGE
BECAUSE I THINK IT WOULD BE BENEFICIAL FOR EVERYONE THAT
PEOPLE COULD USE MUSIC ON DIFFERENT DEVICES AND VICE VERSA.
Q. AND DO YOU THINK THAT YOU HAVE BEEN DAMAGED OR INJURED BY
APPLE'S CONDUCT HERE?
A. I THINK DAMAGE IS A VERY STRONG WORD. I WOULDN'T SAY I
WAS REALLY, REALLY DAMAGED, BUT I THINK, YOU KNOW, IF I
COULD -- I JUST WANT TO MAKE -- EVEN IF IT'S A GOOD CHOICE, I
WANT TO MAKE IT FOR THE RIGHT REASON.
SO IN THAT, I WAS IN A WAY A LITTLE BIT FORCED TO BUY
CERTAIN PRODUCTS. EVEN IF I WOULD HAVE CHOSEN APPLE AT THE
END, I WANTED TO BE MY FREE CHOICE NOT BECAUSE I ALREADY
INVESTED TIME AND MONEY IN THE LIBRARY. I FELT LIKE I STUCK.
AND ALSO I THINK THAT -- YOU KNOW, I STUDIED ECONOMICS TO
UNDERSTAND THAT IF WE WOULD HAVE A FEE -MR. ISAACSON: OBJECTION, YOUR HONOR. SHE'S NOW
ABOUT TO MAKE STATEMENTS BASED ON HER BACKGROUND OF ECONOMICS.
THE COURT: OVERRULED.
BY MS. BERNAY:
Q. YOU CAN GO AHEAD AND ANSWER THE QUESTION AS YOU WERE
GOING.
A. I JUST THINK THAT IF WE HAVE -- IF PEOPLE, YOU KNOW,
591
PEOPLE CAN LIKE A CD, FOR INSTANCE. IF YOU HAVE A CD, IT HAS
NOTHING TO DO WITH MY BACKGROUND IN ECONOMICS. IF I'M A
SIMPLE CONSUMER BUYING A CD FROM A RECORD COMPANY, THE RECORD
COMPANY DOESN'T TELL ME OR DOESN'T MAKE A CD SO I CAN USE IT
ONLY ON BANG & OLUFSEN. I CAN BUY A BANG & OLUFSEN OR ANY
OTHER CD PLAYER AND PLAY IT AND LISTEN TO MUSIC. THERE'S NO
LIMITATIONS. IT'S MY CHOICE WHAT KIND OF CD PLAYER TO BUY.
SO IF I BUY MUSIC FOR ITUNES, I THINK IT WOULD BE
BENEFICIAL FOR EVERYONE IF I COULD PUT THIS MUSIC IN ANY
DEVICE. IF I CHOOSE TO BUY AN APPLE DEVICE, THAT'S FINE, BUT
I WANT TO MAKE THE FREE CHOICE. I DON'T WANT ANYBODY TO MAKE
CHOICE FOR ME.
Q. YOU UNDERSTAND YOU'RE A CLASS REPRESENTATIVE HERE?
A. YES.
Q. WHAT DOES THAT MEAN?
A. WELL, I THINK I REPRESENT A LOT OF PEOPLE WHO HAVE SIMILAR
STORIES IN MY SITUATION, AND I JUST HAPPEN TO BE -- I'M HOPING
I'M ANSWERING, YOU KNOW, GIVING THE TESTIMONY BASED ON WHAT
THEY WOULD SAY.
Q. AND DO YOU GET ANYTHING FOR BEING A CLASS REPRESENTATIVE?
A. I DON'T THINK SO. RATHER THAN, YOU KNOW, IF THERE'S GOING
TO BE ANY DAMAGES OR WHATEVER FOR THE CLASS OVERALL. I DON'T
THINK I'M GETTING ANYTHING -- I HOPE MY EXPENSES FOR THE TRIP
HERE WOULD BE RETURNED. THAT'S IT.
Q. AND YOU MENTIONED THE TRIP HERE. THAT'S ONE OF THE THINGS
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THAT YOU'VE DONE IN THIS CASE.
WHAT ELSE HAVE YOU DONE AS A CLASS REPRESENTATIVE IN THIS
CASE?
A. WELL, OTHER THAN MEETING FIRSTHAND WITH THE LAWYERS WHEN
THEY EXPLAIN TO ME, I THINK I WAS -- HAD ALL DAY DEPOSITION
BACK IN 2007 IN THE WINTER. AND I THINK I HAVE BEEN ALSO
ASKED TO PROVIDE ACCESS TO MY COMPUTER THAT I HAD AT THAT
TIME, AND I REALLY DON'T KNOW WHAT THEY DID THERE.
AS I SAID, I DON'T KNOW, BUT THEY HAVE GOTTEN ACCESS TO
ALL MY RECORDS FROM MY COMPUTER, INCLUDING ITUNES LIBRARY AND
EVERYTHING ELSE.
Q. DID YOU TURN OVER ANY DOCUMENTS OTHER THAN THOSE RECORDS,
DO YOU KNOW?
A. IF I REMEMBER, I DON'T THINK SO. I MIGHT HAVE ANSWERED
SOME EMAILS. IT WAS A WHILE AGO.
Q. AND DO YOU THINK BEING INVOLVED IN THIS CASE WAS THE RIGHT
THING TO DO?
A. I THINK SO. I HOPE I AM NOT HURTING ANYONE. I REALLY
LIKE APPLE PRODUCTS. I JUST THINK THAT, AGAIN, IT'S -- IF IT
HELPS IMPROVE EVEN APPLE AND MAKE IT EASIER TO USE AND MORE
TRANSFERABLE, I THINK IT'S A GOOD THING FOR EVERYONE.
MS. BERNAY: I HAVE NO FURTHER QUESTIONS AT THIS
TIME, BUT MR. ISAACSON WILL BE ASKING YOU SOME. THANK YOU.
THE COURT: CROSS?
(BINDER HANDED TO WITNESS.)
593
ROSEN - CROSS / ISAACSON
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///
///
CROSS-EXAMINATION
BY MR. ISAACSON:
Q. GOOD AFTERNOON, MS. ROSEN. MY NAME IS BILL ISAACSON.
I'VE GOT A FEW QUESTIONS FOR YOU.
NOW, YOU SAID THAT YOU BECAME A PLAINTIFF IN THIS ACTION
IN 2006 -- IN THE SUMMER OF 2006.
DID YOU REVIEW COMPLAINTS THAT WERE FILED BY YOUR LAWYERS
AFTER THAT ON YOUR BEHALF?
A. I THINK SO. WE DISCUSSED IT.
Q. ALL RIGHT. CAN I ASK YOU TO LOOK AT -- WE HAVE GIVEN YOU
A BINDER.
A. UH-HUH.
Q. I WILL ASK YOU TO LOOK AT 2593.
(EXHIBIT DISPLAYED TO JURY.)
JUST TAKE A LOOK AT THE FIRST PAGE.
DO YOU RECOGNIZE THIS IS A COMPLAINT THAT'S FILED IN 2010
AFTER YOU'RE A PLAINTIFF. YOU WILL SEE THE NAMES OF YOUR
LAWYERS THERE. IT'S THE AMENDED CONSOLIDATED COMPLAINT. THIS
IS THE COMPLAINT THAT GOVERNS OUR ACTION.
DO YOU RECOGNIZE THIS AS A DOCUMENT YOU'VE READ BEFORE?
A. ARE WE LOOKING AT THE FIRST PAGE, THE COVER PAGE?
Q. IF YOU NEED -- WHATEVER YOU NEED TO DO TO FAMILIARIZE
YOURSELF TO ANSWER THE QUESTION WHETHER YOU'VE REVIEWED THIS

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DOCUMENT BEFORE.
A. YOU KNOW, IT WAS A WHILE AGO. SO THEY ALL LOOK MORE OR
LESS THE SAME LEGAL DOCUMENTS TO ME. I'M NOT A LAWYER. I
HAVE NO BACKGROUND IN THAT.
IT LOOKS -- I MEAN I'VE DEFINITELY SEEN SOMETHING LIKE
THAT. I DON'T KNOW IF IT IS EXACTLY THIS ONE. I DON'T
REMEMBER THE DATES. I DIDN'T MEMORIZE IT.
Q. SURE.
A. I DIDN'T HAVE AN STACK OF THESE PAPERS IN MY DESK.
Q. ON PAGE 3 OF 29, PARAGRAPH 7, DO YOU SEE YOUR NAME THERE
AS A PLAINTIFF?
PARAGRAPH 7?
A. YES, I SEE MY NAME.
Q. IF WE CAN TURN TO PAGE 6 -- PARAGRAPH 66, WHICH IS PAGE 14
OF 29.
A. OKAY.
Q. THIS IS THE COMPLAINT THAT GOVERNS THIS ACTION RIGHT NOW.
A. UH-HUH.
Q. AND IT SAYS:
"IN SEPTEMBER 2006, APPLE RELEASED 7.0."
NOW, YOU UNDERSTAND THIS CASE IS ABOUT 7.0 AND 7.4. DO
YOU UNDERSTAND THAT?
A. RIGHT. I MEAN, IT LOOK -- AS I SAY, I AM NOT A VERY
TECHNOLOGICAL GUY. I JUST UNDERSTAND THE GIST OF IT. TO
UNDERSTAND THE WHOLE NUMBERS BEHIND IT, I WOULDN'T GO THAT
595
FAR, BUT I UNDERSTAND WHAT THIS CASE IS ABOUT.
Q. AND IT SAYS THAT:
"APPLE RELEASED ITUNES 7.0 INTENDED TO PREVENT JHYMN
AND OTHER PROGRAMS FROM BEING USED TO CREATE
INTEROPERABILITY BETWEEN AUDIO DOWNLOADS PURCHASED
FROM THE ITUNES STORE AND NONAPPLE PORTABLE DIGITAL
MEDIA PLAYERS."
DID YOU UNDERSTAND WHEN THIS COMPLAINT WAS FILED, THAT
JHYMN WAS A KNOWN HACKER?
A. I DON'T KNOW. YOU KNOW WHAT? I'M BASICALLY -- IF I WERE
MORE TECHNOLOGICALLY INCLINED, I WOULD HAVE KNOWN ALL THOSE
DIFFERENT NAMES. BUT BECAUSE I'M NOT, I GO STRAIGHT TO APPLE
ITUNES BUY STUFF AND I DON'T GO SURFING THE SET (SIC), SO I
DIDN'T KNOW WHAT AND WHO WAS A KNOWN HACKER. I DON'T KNOW
WHAT IT IS.
Q. PARAGRAPH 66 GOES ON TO SAY:
"THROUGHOUT THE CLASS PERIOD, APPLE ISSUED SOFTWARE
UPDATES INTENDED TO PREVENT THE USE OF OTHER SIMILAR
PROGRAMS, INCLUDING QT FAIR USE AND PLAY FAIR."
DO YOU RECOGNIZE QT FAIRUSE AND PLAY FAIR AS KNOWN
HACKERS?
A. I WOULD GIVE YOU THE SAME ANSWER. ACTUALLY I DON'T KNOW
WHAT IT IS AND WHAT THEY DO. NEVER USED THIS.
Q. ALL RIGHT.
THIS COMPLAINT WAS FILED ON YOUR BEHALF. IT'S THE MOST
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RECENT COMPLAINT FILED BY YOUR LAWYERS. DO YOU STAND BY THIS
DOCUMENT?
A. OF COURSE. I MEAN, IF WE DO UNDERSTAND -- IF I DO
UNDERSTAND CORRECTLY, I HOPE I DO, I STAND BY THIS DOCUMENT.
Q. LET ME ASK YOU TO -- LET'S GO OVER YOUR PURCHASE HISTORY
OF IPODS. IT WENT BY A LITTLE QUICKLY.
SO YOU BOUGHT TWO IPODS IN 2004, CORRECT?
A. CORRECT. BUT THE SECOND ONE WASN'T FOR ME. I BOUGHT IT
AS A GIFT AND I DIDN'T USE IT.
Q. ALL RIGHT. AND YOU UNDERSTAND THAT THIS CLASS ACTION IS
FOR IPOD PURCHASERS BEGINNING IN SEPTEMBER 2006 RUNNING
THROUGH MARCH 2009.
A. YEAH. I UNDERSTAND THAT.
Q. THEN YOU BOUGHT A NEXT GENERATION BLACK IPOD IN
DECEMBER 2006, CORRECT?
A. NO. I THINK I BOUGHT THE NEXT GENERATION BLACK IPOD IN
SEPTEMBER 2006. YOU SEE -Q. THAT'S FINE.
A. -- THIS IS -- AGAIN, IT'S LONG TIME AGO.
AND WHILE, YOU KNOW, I'M TRYING TO HAVE THE BEST
RECOLLECTION OF THIS EVENT, THE PURCHASE OF IPOD AND THAT
EVENT, MY LIFE GOES BY. WHAT I TRY TO REMEMBER, I BOUGHT IT
FOR MY SON, FOR MY SISTER GRADUATION. MY SON WAS BORN A MONTH
LATER. THAT'S HOW I REMEMBER IT.
Q. I'M SORRY. I THINK YOU'RE ABSOLUTELY RIGHT ABOUT
597
SEPTEMBER. I THOUGHT YOU SAID DECEMBER.
LET ME HELP YOU. IN YOUR BINDER IS 2784. THIS IS A
DOCUMENT YOUR LAWYERS GAVE US.
(EXHIBIT DISPLAYED TO JURY.)
ITUNES INFORMATION FOR MS. ROSEN. AND IF YOU TURN TO
PAGE 3 OF 23. IT IS NOT ALWAYS TO READ HERE, BUT IF WE CAN
BLOW IT UP.
THAT IS A RECEIPT FROM THE APPLE STORE FROM SEPTEMBER OF
2006. THAT WAS A RECEIPT YOU MUST HAVE GIVEN YOUR LAWYERS.
IT'S FOR A IPOD IS 30GIG BLACK IPOD.
THAT'S WHAT YOU PURCHASED IN SEPTEMBER 2006?
A. RIGHT.
Q. THAT WAS THE NEWEST GENERATION OF CLASSIC IPOD THAT WAS
AVAILABLE. IT WAS A NEW IPOD?
A. UH-HUH.
Q. I'M SORRY, THE COURT REPORTER NEEDS YOU TO SAY YES OR NO.
A. YES. SORRY.
Q. AND SO THAT WAS -- AT THAT TIME YOU UNDERSTAND THAT THAT
WAS A CLASSIC FIFTH GENERATION IPOD. THAT'S WHAT WAS ON SALE
IN SEPTEMBER OF 2006?
A. YES.
Q. YOU UNDERSTAND THAT THE PLAINTIFFS IN THIS CASE ARE NOT
CLAIMING ANY DAMAGES FROM THE FIFTH GENERATION IPODS; YOU
UNDERSTAND THAT, DON'T YOU?
A. I DON'T UNDERSTAND WHY THIS IS -- I MEAN, IT'S A LITTLE

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BIT OF A LEGAL STAB THAT YOU ARE TRYING TO MAKE ME SAY "YES"
OR "NO" ABOUT. I DON'T UNDERSTAND WHY IS THAT IMPORTANT. I'M
TRYING TO TALK ABOUT MY OWN EXPERIENCE WITH THE IPODS.
Q. I UNDERSTAND. THERE MAY BE SOME THINGS I TALK ABOUT THAT
MAY NOT BE IMPORTANT TO YOU, BUT GIVE ME A LITTLE LEEWAY AND
WE WILL WORK THROUGH THEM.
A. RIGHT.
Q. DO YOU UNDERSTAND THAT YOUR FIFTH GENERATION IPOD THAT YOU
GOT IN SEPTEMBER 2006, THAT THE PLAINTIFFS AND THEIR EXPERT,
THE ECONOMIST, DR. NOLL, IS NOT SAYING THERE WAS ANY DAMAGES
ATTRIBUTABLE TO THAT IPOD.
DO YOU KNOW THAT?
MS. BERNAY: OBJECTION. IT'S CALLING FOR A LEGAL
CONCLUSION AT THIS POINT. IT'S GETTING A LITTLE BIT FAR -THE COURT: OVERRULED.
MR. ISAACSON: THIS IS A STIPULATED FACT IF THAT WILL
HELP YOU.
THE COURT: THE QUESTION IS DOES SHE KNOW.
MR. ISAACSON: YES.
THE COURT: THAT IS THE QUESTION.
BY MR. ISAACSON:
Q. DO YOU KNOW THAT FOR THAT IPOD THAT NO DAMAGES ARE BEING
CLAIMED BY THE PLAINTIFFS?
A. OKAY. I UNDERSTAND THAT, I THINK.
Q. THEN YOU BOUGHT AN IPOD IN FALL OF 2007. I THINK THAT'S
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WHAT YOU SAID?

A. RIGHT.
IT'S AN IPOD NANO. IT IS THE NARROW VERSION OF IT. THE
ONE THAT CAME IN COLORS.
Q. AT THE TIME YOU BOUGHT THIS, YOU WERE A CLASS PLAINTIFF?
A. UH-HUH.
Q. I AM SORRY, YOU HAVE TO USE A WORD FOR THE COURT REPORTER.
A. YES.
Q. AND DO YOU HAVE THAT NANO TODAY?
A. I NOT SURE. I THINK I SHOULD HAVE IT BECAUSE -- I DON'T
HAVE IT TODAY WITH ME. WAS THAT THE QUESTION? OR DO I HAVE
IT IN MY HOUSE?
Q. WELL, BOTH.
A. I DON'T HAVE IT WITH ME. THAT'S FOR SURE.
I -- BECAUSE I MOVED AND RIGHT NOW MY HOUSE IS UNDER
CONSTRUCTION AND I HAVE A LOT OF MY STUFF STORED. I PRESUME
IT'S SOMEWHERE IN THE BOXES BECAUSE A LOT OF STUFF ARE IN
BOXES, BUT I DON'T HAVE IT, YOU KNOW, WITH ME IN THE APARTMENT
THAT I'M RENTING TEMPORARILY.
Q. YOU THINK YOU BOUGHT IT AT AN APPLE STORE?
A. I THINK I BOUGHT IT AT THE APPLE STORE.
Q. DID YOU KEEP THE RECEIPTS?
A. YOU KNOW, AGAIN, I TEND TO KEEP RECEIPTS FOR A COUPLE OF
YEARS, USUALLY, ESPECIALLY THE THINGS THAT I MIGHT RETURN
WHERE THERE IS A WARRANTY CONCERN, BUT ALL THE STUFF FROM
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2007, 2008, I DOUBT I HAVE IT.
AND ANOTHER REASON IS A LOT OF STUFF I HAD TO THROW AWAY
WHEN I WAS MOVING. EVEN IF I HAD IT -Q. AT THE TIME YOU WERE A CLASS PLAINTIFF, YOU BOUGHT AN IPOD
AND YOU BELIEVE YOU THREW OUT THE RECEIPT AFTER A COUPLE OF
YEARS; IS THAT RIGHT?
A. I MIGHT HAVE. IF IT'S SO -- IF IT'S A CRUCIAL MATTER, ALL
OF IT CAN BE -- ALL THE RECEIPTS AND ALL THE RECORDS COULD BE
ON MY PURCHASES FROM APPLE ARE EASILY ACCESSIBLE.
Q. DID YOU UNDERSTAND THAT AS A CLASS PLAINTIFF, YOU WERE
SUPPOSED TO KEEP YOUR RECORDS RELATED TO THIS CASE, SUCH AS
YOUR PURCHASES OF IPODS?
A. I AM PRETTY SURE THAT ALL MY PURCHASES FROM APPLE WHICH
ARE IMPORTANT, CAN BE UPLOADED FROM MY HISTORY OF PURCHASES.
AND THEY SEND ME EMAILS, SO I DON'T THINK THE PHYSICAL PAPER
RECEIPT IS A CRUCIAL MATTER. IF NECESSARY -Q. I -A. -- WE CAN ACCESS, ANYONE CAN ACCESS THE RECEIPT.
Q. I APPRECIATE YOUR VIEWS ABOUT WHAT'S CRUCIAL AND NOT
CRUCIAL.
MY QUESTION IS, DID YOU UNDERSTAND YOU HAD AN OBLIGATION
AS A CLASS PLAINTIFF TO KEEP YOUR RECORDS RELATED TO THIS CASE
AND NOT THROW THEM OUT?
A. I AM SORRY -MS. BERNAY: OBJECTION.
601
THE WITNESS: -- I THINK THE QUESTION IS WHETHER I
UNDERSTOOD IT WAS CRUCIAL OR NOT. MY VIEWS ON THAT ARE
IMPORTANT, RIGHT?
SO ARE YOU ASKING ME AS A PLAINTIFF, I UNDERSTOOD IT WAS
IMPORTANT. I UNDERSTOOD THAT IN THIS DIGITAL DAY AND AGE, IF
NECESSARY, AND IF IT COME TO IT, ALL THOSE RECORDS CAN BE
EASILY ACCESSIBLE.
BY MR. ISAACSON:
Q. HAVE YOU MADE ANY ATTEMPT TO ACCESS THOSE RECORDS?
A. UNTIL I WAS ASKED TO. ON MY OWN VOLITION, NO. IF
SOMEBODY WOULD ASK ME, I CAN.
Q. SO NO ONE -- NONE OF YOUR LAWYERS HAVE ASKED YOU TO HAND
OVER ANY OF THE RECORDS OF YOUR PURCHASES?
A. NOT THAT I REMEMBER. I THINK THEY JUST TOOK MY WORD FOR
IT. I'M NOT LYING ABOUT MY PURCHASES.
Q. OKAY. AND YOU DON'T KNOW WHETHER YOU'VE THROWN OUT THE
RECEIPTS AND YOU DON'T KNOW WHETHER YOU STILL HAVE THAT IPOD
NANO; IS THAT RIGHT?
MS. BERNAY: OBJECTION, ASKED AND ANSWERED.
THE COURT: SUSTAINED. COMPOUND.
MR. ISAACSON: ALL RIGHT.
BY MR. ISAACSON:
Q. YOU DON'T KNOW WHETHER -- YOU DON'T KNOW WHETHER YOU THREW
OUT YOUR RECEIPTS FROM THE -- FOR THE PURCHASE OF THE IPOD
NANO; IS THAT CORRECT?

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602
MS. BERNAY: OBJECTION, ASKED AND ANSWERED.
THE COURT: OVERRULED.
THE WITNESS: I DON'T KNOW IF I THREW OUT THE
RECEIPT.
BY MR. ISAACSON:
Q. YOU DON'T KNOW WHETHER YOU KEPT THE IPOD AND WHETHER IT'S
AVAILABLE TO BE INSPECTED; IS THAT RIGHT?
A. I THINK IT IS THE SAME QUESTION.
I AM PRETTY SURE THE IPOD IS IN ONE OF THE BOXES WHERE ALL
OF THE TECHNOLOGY IS IN MY NEW HOUSE STORED.
Q. NOW, THE IPOD TOUCH, I BELIEVE YOU SAID YOU BOUGHT ONE OF
THOSE IN DECEMBER 2008; IS THAT RIGHT?
A. YES, IT IS RIGHT.
Q. ALL RIGHT. DID YOU KEEP ANY RECORDS OF THAT PURCHASE?
A. AGAIN, I THINK ALL THE RECEIPTS FOR MY PURCHASE FROM THE
APPLE STORE WERE EMAILED TO ME. SO TO THE EXTENT THEY ARE
AVAILABLE ON THE SERVER OF MY MAIL, IT'S THERE.
BUT I DO -- I HAVE -- YOU KNOW, AGAIN, IF SOMEONE ASKS AND
IT BECOMES IMPORTANT, I THINK IT'S VERY EASILY ACCESSIBLE.
Q. NO ONE HAS EVER ASKED YOU TO RETAIN YOUR RECORDS OF YOUR
PURCHASES OF IPODS AFTER THIS COMPLAINT WAS FILED; IS THAT
CORRECT?
A. I DON'T REMEMBER IF ANYONE ASKED ME TO.
Q. IS YOUR IPOD TOUCH -- DO YOU STILL HAVE THAT?
A. YES.
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604
A. I -- I WOULDN'T MAKE THAT CONJECTURE. I DON'T THINK I GOT
INVOLVED IN THIS LAWSUIT BECAUSE MY HUSBAND MENTIONED IT.
IT IS A LITTLE BIT INCORRECT. I THINK HE MENTIONED MY
NAME TO THE LAWYERS AND THEY CONTACTED ME. I DIDN'T GET
INVOLVED BECAUSE HE MENTIONED IT.
Q. ALL RIGHT. NOW THAT SOUNDS MORE ACCURATE.
NOW, YOU KNOW THE LAWYERS FROM THE LAW FIRM HERE, ROBBINS
GELLER, A FINE LAW FIRM?
A. YES.
Q. AND YOUR HUSBAND WORKS WITH THIS LAW FIRM IN MANY CASES,
RIGHT?
A. I HAVE NO IDEA. MY UNDERSTANDING -- THAT THEY WOULD NOT
HAVE ANYTHING TO DO WITH EACH OTHER BECAUSE MY HUSBAND DOESN'T
DO CONSUMER FRAUD. HE DOES SECURITIES FRAUD, WHICH IS
DIFFERENT.
Q. ALL RIGHT. DOES YOUR HUSBAND TALK ABOUT HIS CASES WITH
YOU?
A. WE ACTUALLY -- I DON'T KNOW IF I'M SOLICITING MORE
INFORMATION RIGHT NOW.
I'M ACTUALLY DIVORCED AND WE HAVE NOT BEEN LIVING TOGETHER
AND DISCUSSING HIS CASES FOR OVER TWO YEARS.
Q. ALL RIGHT. I WILL CONFINE MYSELF TO PERIOD BEFORE THAT
HAPPENED.
SO FROM 2006 UNTIL ABOUT TWO YEARS AGO, DO YOU REMEMBER
TALKING FROM TIME TO TIME ABOUT SOME OF YOUR HUSBAND'S CASES,
603
605

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Q. WHERE IS THAT?
A. I HAVE IT.
Q. YOU HAVE IT HERE WITH YOU IN CALIFORNIA?
A. YES.
Q. ALL RIGHT.
NOW, YOU MENTIONED YOUR HUSBAND. YOU SAID YOUR HUSBAND
KNEW THE LAWYERS. YOUR HUSBAND, I THINK YOU SAID, IS A
PLAINTIFFS' CLASS ACTION LAWYER, RIGHT?
A. HE'S A SECURITIES LITIGATION -Q. YES.
THE REPORTER: I'M SORRY.
BY MR. ISAACSON:
Q. AND YOU WORKED SOME WITH HIS LAW FIRM, CORRECT?
THE COURT: MR. ISAACSON, HOLD ON.
DID YOU GET THAT?
THE REPORTER: NOT THE END OF IT.
BY MR. ISAACSON:
Q. I NEED YOU TO REPEAT YOUR ANSWER.
A. CLASS ACTION.
Q. AND YOU'VE WORKED FOR YOUR HUSBAND'S LAW FIRM DOING
BOOKKEEPING, ACCOUNTING, GENERAL OFFICE MANAGER MATERIAL,
RIGHT?
A. RIGHT. PAYROLL PROCESSING, THINGS LIKE THAT.
Q. YOU GOT INVOLVED IN THIS LAWSUIT BECAUSE YOUR HUSBAND
MENTIONED IT. YES?

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THE CASE NAMES?

A. I KNEW THE CASE NAMES VERY WELL, OF COURSE. BUT I
DIDN'T -- I WOULDN'T DISCUSS THE DETAILS OF THE LITIGATION.
SOMETIMES IF THINGS GO BAD HE WOULD COME BACK FRUSTRATED AND
SAY THAT, YOU KNOW, SOMETHING WENT WRONG, THINGS LIKE THAT,
BUT WE DIDN'T GET INTO DETAILS.
Q. DO YOU REMEMBER THE NAMES OF ANY OF THE CASES?
A. I REMEMBER THE NAMES OF SOME OF THE CASES, I GUESS, BUT I
DON'T THINK IT'S -- THAT'S -- I WOULD PROBABLY BE FILING SOME
RECEIPTS AND THINGS LIKE THAT RELATED TO THE CASES.
Q. LET ME SEE IF I CAN REFRESH YOUR MEMORY ON SOME NAMES.
A. YES.
Q. I'M GOING TO SHOW THIS TO HER.
(BINDER HANDED TO COUNSEL AND WITNESS.)
BY MR. ISAACSON:
Q. I KNOW THIS LOOKS LARGE, I'M TRYING TO MAKE IT EASY FOR
YOU.
WE HAVE COLLECTED 18 CASES OVER THE LAST FIVE YEARS WHICH
YOUR HUSBAND HAS WORKED ON. AND SO THERE'S 18 TABS AND WE
HAVE PUT POST-ITS WHERE WE CAN FIND YOUR HUSBAND'S NAME.
SO, FOR EXAMPLE, THE FIRST TAB, THERE'S A CASE CALLED IN
RE: GALENA BIOPHARMA SECURITIES LITIGATION. AND AT PAGE 8 OF
21, YOUR HUSBAND IS A LAWYER ON THAT CASE. THAT'S YOUR FORMER
HUSBAND.
ISN'T THAT ON PAGE 8 OF 21? WE HAVE HIGHLIGHTED IT FOR

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606
608

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YOU.
A. YES. CAN I ASK A QUESTION? WHERE WOULD I SEE THE SAME OF
THE CASE?
Q. IT IS ON THE FIRST PAGE AT THE TOP.
A. I AM SORRY. I AM NOT SURE I UNDERSTAND. THIS IS PAGE 8,
RIGHT?
MR. ISAACSON: MAY I APPROACH?
THE COURT: YOU MAY.
(COUNSEL ASSISTS WITNESS.)
BY MR. ISAACSON:
Q. ON PAGE 1 AT THE TOP, WOULD BE THE CASE NAME. AND THEN ON
PAGE 8 -A. OKAY. THIS IS THE BEGINNING.
Q. THAT'S YOUR EX-HUSBAND?
A. THAT'S MY EX-HUSBAND. THE CASE WAS FILED, IF I READ IT
CORRECTLY, IN 2014.
ME AND MY HUSBAND WERE ACTIVELY PITTED AGAINST EACH OTHER
IN OUR DIVORCE, AND THE LAST THING I WOULD DISCUSS WITH HIM IS
HOW HE'S DOING IN HIS LAW PRACTICE. AND YOU CAN UNDERSTAND
WHY.
Q. ALL RIGHT. I WAS UNAWARE OF THAT WHEN WE PUT TOGETHER THE
BINDER.
LET ME ASK YOU TO LOOK AT TAB 3.
THIS CASE, IS BACK IN 2011, FEBRUARY. WERE YOU MARRIED AT
THIS TIME?
607
A. WE -- IN JUNE 2011 THAT WAS THE TIME WHEN HE RETAINED HIS
LAWYER. SO WE WERE MARRIED AT THE TIME TECHNICALLY,
TECHNICALLY STILL MARRIED BECAUSE THE JUDGMENT WILL BE ENTERED
ON THE 8TH OF DECEMBER.
Q. THINGS WERE NOT GOING WELL?
A. NO.
Q. I WON'T INTRUDE INTO THAT.
ALL RIGHT. LET'S TRY TAB 10. HUFNAGEL VERSUS RHINO
INTERNATIONAL CORPORATION (PHONETIC).
NOVEMBER 2010. YOUR HUSBAND IS HIGHLIGHTED ON THE FIRST
PAGE. DO YOU SEE THAT?
A. I SEE HIM BEING HIGHLIGHTED, YES.
Q. THIS IS A CASE NAME YOU RECOGNIZE?
A. I HEARD THE NAME NAGEL (PHONETIC) FROM HIM, I GUESS.
Q. IF YOU LOOK ON PAGE 4, DO YOU SEE THAT ROBBINS GELLER WAS
CO-COUNSEL WITH YOUR HUSBAND IN THIS CASE?
A. I SEE IT HIGHLIGHTED. CAN -- AM I ALLOWED TO ASK
QUESTIONS, TOO? NO?
Q. I THINK IT WOULD GO QUICKER IF YOU LET ME ASK THE
QUESTIONS. YOUR COUNSEL GETS TO ASK YOU QUESTIONS.
A. I DON'T UNDERSTAND. THERE'S A LOT OF LAWYERS ON THIS
CASE. I WOULD NOT KNOW ALL OF THEM.
Q. RIGHT.
A. AND IF I UNDERSTAND CORRECTLY, THE WAY SECURITIES CLASS
ACTION LITIGATION WORKS, THERE'S A LOT OF PEOPLE FILING.

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Q. YES.
A. AND THEY MAY NOT BE AWARE OF EACH OTHER EXISTENCE OR THEY
WILL, BUT THEY'RE NOT NECESSARILY WORKING TOGETHER.
Q. OR -A. IT IS MY UNDERSTANDING.
Q. OR THEY ARE WORKING TOGETHER IN A LOT OF CASES, AND NOT
MENTIONING IT TO THEIR WIFE. THAT'S HOW THE CLASS ACTION
WORLD CAN WORK, RIGHT?
A. THAT'S ENTIRELY POSSIBLE. BECAUSE I HAVE NO IDEA HOW MANY
PEOPLE HE WORKS WITH.
Q. YOUR HUSBAND HAS NEVER MENTIONED THE FACT -- YOUR
EX-HUSBAND NEVER MENTIONED THE FACT THAT HE WORKED WITH
ROBBINS GELLER FIRM IN MANY, MANY CASES, DID HE?
A. NO.
Q. OKAY.
THE COURT: THREE MINUTES. I DON'T KNOW IF THIS IS A
GOOD TIME TO BREAK, OR IF YOU HAVE GOT SOMETHING YOU CAN DO IN
THREE MINUTES.
MR. ISAACSON: I CAN DO SOMETHING IN THREE MINUTES.
I MIGHT BE ABLE TO BE DONE IN FIVE ALTOGETHER WHICH WOULD BE
GOOD FOR THE WITNESS.
THE COURT: THAT WOULD BE.
BY MR. ISAACSON:
Q. YOU BASICALLY HAVE -- AT LEAST -- BACK IN 2007, YOU HAD NO
KNOWLEDGE OF COMPUTERS. THAT WAS HOW YOU CHARACTERIZED
609
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YOURSELF?
A. I MEAN NO KNOWLEDGE IS PROBABLY A STRONG WORD. I USED
COMPUTERS, BUT I DON'T KNOW HOW THEY WORK. I STILL DON'T KNOW
HOW THEY WORK.
Q. RIGHT, BUT YOU KNEW HOW TO BURN CD'S.
A. YES.
Q. YOU BURNED A LOT OF CD'S?
A. I DID.
Q. YOU HAD -A. WELL, IF YOU SAY "BURN", NO. I COPIED A LOT OF CD'S. I
THINK BURN IS THE OPPOSITE PROCESS, RIGHT? IS WHEN YOU CREATE
A CD.
Q. OR YOU -- YOU COPIED A LOT OF THEM, YOU RIPPED THEM INTO
YOUR ITUNES?
A. I COPIED THEM INTO MY ITUNES.
Q. ALL RIGHT. AND YOU HAD A NANNY WHO WAS MUCH MORE COMPUTER
LITERATE THAN YOU; YOU HAD HER COPY MUSIC FILES FROM YOUR
COMPUTER, RIGHT?
A. I'M SORRY, WHEN YOU SAY "COPY MUSIC FILES FROM MY
COMPUTER", TO WHERE?
Q. WELL, YOU HAD HER HELP YOU WITH COPYING SOME MUSIC FILES
BECAUSE YOU HAD DIFFICULT WITH THAT. YOUR NANNY WAS BETTER
WITH THAT, SO YOU HAD HER HELP YOU?
A. MAYBE. IT SOUNDS ENTIRELY POSSIBLE.
Q. AND YOU NEVER ASKED YOUR NANNY, HOWEVER, TO HELP YOU BURN

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ANY CD'S; THAT WAS EASY FOR YOU?
A. WHEN YOU SAY "BURNING CD'S" YOU MEAN CREATING -Q. I'M SORRY, COPYING CD'S INTO THE ITUNES LIBRARY. THAT WAS
EASY FOR YOU?
A. IT IS RELATIVELY STRAIGHTFORWARD PROCESS. YOU ARE
PROMPTED BY ITUNES PROGRAM WHAT TO DO.
Q. NOW, IN THIS CASE, YOU'VE -- DO YOU UNDERSTAND THE CLASS
ALSO INCLUDES BUSINESSES LIKE WAL-MART AND BEST BUY?
A. THAT'S WHAT IT SAYS ON THE COVER. I UNDERSTOOD FROM
READING, YES.
Q. YOU'VE NEVER SPOKEN TO ANY OF THOSE PEOPLE, HAVE YOU?
A. FROM -- REGARDING THIS PARTICULAR LAWSUIT?
Q. RIGHT. AS PART OF YOUR WORK AS CLASS REPRESENTATIVE,
YOU'VE NEVER SPOKEN TO ANY OF THE BUSINESSES IN THE CLASS?
A. NO. I HAVEN'T SPOKEN TO THEM, NO, ABOUT THIS LAWSUIT.
NO.
Q. RIGHT. AND ONE FINAL THING THEN.
WHEN YOU BOUGHT YOUR FIRST IPOD IN 2004, YOU BELIEVED THAT
THE IPOD ONLY WORKED WITH ITUNES, CORRECT?
A. I DIDN'T -- WHEN I ACTUALLY WAS BUYING THAT, I DIDN'T GO
THROUGH THE PROCESS OF BUYING MUSIC, ET CETERA. I DIDN'T
REALLY THINK ONE WAY OR THE OTHER.
YOU KNOW, WHEN YOU DON'T ENCOUNTER THE PROBLEM, YOU DON'T
FORM ANY BELIEFS. ONCE YOU HAVE AN ISSUE, YOU FORM BELIEFS.
SO I HAVEN'T HAD AN ISSUE AT THAT TIME. I HAVE NOT HAD ANY
611
ROSEN - REDIRECT / BERNAY
OPINION ON THE MATTER WHEN I WAS BUYING.
Q. WELL, AT SOME POINT BEFORE THE COMPLAINT WAS FILED, YOU
FORMED THE BELIEF -A. I FORMED THAT BELIEF, YES.
Q. THAT APPLE PRODUCTS WORK TOGETHER AND IPOD ONLY WORKED
WITH ITUNES. YOU HAD THAT BELIEF BEFORE THE COMPLAINT WAS
FILED, RIGHT?
A. I BELIEVE SO, YES.
Q. AND WHEN YOU BOUGHT YOUR IPODS AFTER THE LAWSUIT WAS
FILED, YOU ALREADY BELIEVED THAT ITUNES AND IPOD ONLY WORKED
TOGETHER. THAT WAS YOUR BELIEF?
A. RIGHT.
MR. ISAACSON: I HAVE NO FURTHER QUESTIONS.
THE COURT: DO YOU HAVE ANY REDIRECT?
MS. BERNAY: JUST VERY QUICK.
REDIRECT EXAMINATION
BY MS. BERNAY:
Q. MS. ROSEN, YOU MENTIONED THE IPOD TOUCH, AND MR. ISAACSON
ASKED YOU IF IT WAS HERE IN CALIFORNIA. DO YOU REMEMBER THAT?
A. UH-HUH.
Q. DO YOU HAVE THAT IPOD TOUCH ACTUALLY WITH YOU TODAY IN
COURT?
A. I DON'T HAVE -- I THINK I HAVE IT WITH ME IN MY BAG.
Q. WOULD YOU BE WILLING TO SHOW THAT TO THE APPLE LAWYERS, IF
THEY ASKED?
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612
A. OF COURSE. IF SOMEONE NEEDS IT TO LOOK AT IT, OF COURSE.
MS. BERNAY: NOTHING FURTHER. THANK YOU, YOUR HONOR.
THE COURT: ANY QUESTIONS ON THAT TOPIC ONLY?
MR. ISAACSON: NO, YOUR HONOR. WE WILL RAISE THE
TOPIC AFTER THE WITNESS HAS BEEN EXCUSED.
THE COURT: OKAY. THEN YOU ARE EXCUSED.
I HEAR NO REQUEST FROM APPLE TO INSPECT THE IPOD, CORRECT?
MR. ISAACSON: I WAS GOING TO WAIT FOR HER TO BE
EXCUSED. YES, WE WOULD -THE COURT: IF I EXCUSE HER, I LOSE JURISDICTION.
MR. ISAACSON: I WOULD TRUST THE PLAINTIFFS' LAWYERS
WOULD WORK WITH HER.
THE COURT: I WILL TELL YOU WHAT. YOU CAN STEP DOWN.
YOU ARE NOT EXCUSED QUITE YET. BUT YOU CAN GO DOWN RIGHT HERE
NEXT TO YOUR LAWYERS.
I'M GOING TO LET THE JURY GO. IT'S THE END OF OUR TRIAL
DAY.
LADIES AND GENTLEMEN, AGAIN, APOLOGIES FOR THAT FALSE
ALARM. I GUESS IT'S GOOD TO KNOW THAT IT WORKS.
YOU'VE NOW HEARD A DAY AND A HALF OF REAL EVIDENCE. SO
NOW HOPEFULLY MY INSTRUCTIONS ARE BEGINNING TO MAKE MORE SENSE
TO YOU ABOUT YOUR LACK OF ABILITY TO DO ANYTHING OUTSIDE THIS
COURTROOM. SO NO RESEARCH, NO CONSULTING DICTIONARIES, NO
SEARCHING THE INTERNET. DO NOT INVESTIGATE ANY OF THESE
ISSUES. DO NOT INVESTIGATE ANY OF THE HISTORY. DO NOT
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INVESTIGATE ANY OF THESE ENTITIES.
ALL RIGHT? DON'T DO ANY OF THAT. YOU'VE HAD A FULL DAY
OF THIS CASE. GO AND DO OTHER THINGS. FINISH YOUR HOLIDAY
SHOPPING. GET SOME WORK DONE. TAKE A NAP, IF YOU NEED TO.
REMEMBER, DO NOT COMMUNICATE WITH ANYONE IN ANY WAY ABOUT
THIS CASE AND DO NOT LET ANYONE ELSE COMMUNICATE WITH YOU.
AS I MENTIONED TO YOU EARLIER, SOMETIMES WHEN COMPANIES
LIKE APPLE ARE IN LITIGATION, THERE'S A LOT OF PRESS, SO DO
NOT LOOK AT THE PRESS. NO EMAILS, SOMEONE FORWARDS THEM TO
YOU, IF THEY HAPPEN TO SEE YOU WALK OUT OF THE COURTHOUSE AND
SAID, HEY, THAT PERSON HAS A JUROR TAG I KNOW THAT PERSON, AND
THIS MAY BE THE ONLY TRIAL GOING ON IN THIS COURTHOUSE, YOU
HAVE TO DELETE IT. DON'T LOOK AT IT. DON'T THINK ABOUT IT.
LISTEN TO MUSIC. DON'T LISTEN TO THE NEWS, IF YOU CAN AVOID
IT. CHANGE THE CHANNEL.
BUT, PLEASE, WE IMPRESS UPON YOU THE NEED TO TRY AND KEEP
YOURSELVES AS ISOLATED AS POSSIBLE FROM ANY OUTSIDE INFLUENCE
WITH RESPECT TO THIS CASE. OKAY?
ANY QUESTIONS AT THIS POINT? IS THAT REFRIGERATOR BIG
ENOUGH FOR SNACKS?
YES. YOU DO HAVE SOMETHING? I THINK I GOT A HIGHLIGHT ON
THIS ONE. THIS IS ABOUT EVIDENCE PRESENTATION?
JUROR: (NODS HEAD.)
THE COURT: I WILL TALK TO THEM ABOUT THAT.
ANYTHING ELSE? NO?
EXHIBIT 5
CERTIFIED COPY

)
)
)
)
)
)
)
)
____________________________)
NO. C 05-00037 YGR

PAGES 198 - 401
JURY TRIAL VOLUME 2
OAKLAND, CALIFORNIA
TUESDAY, DECEMBER 2, 2014

APPEARANCES:
FOR PLAINTIFFS:
BY:
BY:

PATRICK COUGHLIN,
CHARLES MCCUE,
CARMEN A. MEDICI,
ATTORNEY AT LAW
(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:


I N D E X
PAGE
VOL.
OPENING STATEMENT BY MS. SWEENEY
214
OPENING STATEMENT BY MR. COUGHLIN
243
OPENING STATEMENT BY MR. ISAACSON
268
PAGE
VOL.
310
CROSS-EXAMINATION BY MS. DUNN
335
SWORN
345
346
RIEGEL, KENNETH
MARTIN, DAVID

& DOWD LLP
San Diego, CA 92101
5 Telephone: 619/231-1058
619/231-7423 (fax)
xanb@rgrdlaw.com
and
8
11 Telephone: 415/288-4545
415/288-4534 (fax)
12 patc@rgrdlaw.com
13
14
15
16
17
OAKLAND DIVISION
18

19 LITIGATION
20
21

ALL ACTIONS.
22
23
24
25
26
27
28
989259_2
)
)
)
)
)
)
)
)
Lead Case No. C-05-00037-YGR

CLASS ACTION
DECLARATION OF MARIANNA ROSEN
Date:
Time:
Courtroom:
Judge:
TBD
TBD
1, 4th Floor
I, Marianna Rosen, declare as follows
1.
I am a Court-appointed class representative in the case In re Apple iPod iTunes
3 Antitrust Litigation.
4
2.
I provided testimony on December 3, 2014 at trial in the action in Oakland,
5 California.
6
3.
I testified at trial that I purchased several iPods, including an iPod touch and an iPod
7 nano, among other models.

8
4.
I subsequently reviewed my iTunes account to determine whether there would be
9 further information about the other iPods I purchased, including serial numbers.
10
5.
I was able to determine that a device, listed as marianna Rosens iPod in my
11 personal iTunes account had the serial number 1A836F5F201. Attached as Exhibit 1 is a screenshot
12 of my personal iTunes account.
13
6.
The next day, December 4, 2014, I called the Apple store in Short Hills, New Jersey
14 where I believe I have purchased all the iPods I have ever owned.
15
7.
I provided the serial number 1A836F5F201 to the Apple employee who answered the
16 phone. That person was able to call up my receipt for my purchase. The receipt was then emailed to
17 me on the morning of December 4, 2014. A copy of the email and the receipt is attached as Exhibit
18 2.
19
8.
The receipt I received on December 4, 2014 reflects my purchase of two iPods on
20 September 11, 2008: an iPod touch and an iPod nano. First, the receipt reflects the purchase of an
21 iPod touch I purchased for my son. The receipt also shows that on the same day, September 11,
22 2008, I bought an iPod nano for my own use.
23
9.
I was not asked or directed by anyone to buy these iPods. I did not buy them for
24 anyones use or benefit other than myself and my children. Specifically, I did not buy these iPods
25 for the use or benefit of the Rosen Law Firm. Nor were these devices used for such a purpose.
26
10.
According to the receipt I received from Apple, I used a Visa credit card for this
27 purchase. I no longer possess this credit card, but feel certain the card was issued in both my name
28 and in the name of the familys business, my husbands law firm, where I worked from 2004 2012.
989259_2
EXHIBIT 1
EXHIBIT 2
Case4:05-cv-00037-YGR Document969-3
Filed12/07/14 Page7 of 10
DUPLICATERECEIPT
A
AppleStore,ShortHills
1200MorrisTPKESTEB102
ShortHills,NJ07078
shorthills@apple.com
973-564-5813
www.apple.com/retail/shorthills
September11,200811:09AM
iPodnano8GB-green
PartNumber:MB745LL/A
SerialNumber:YM8361TK3QX
ReturnDate:Sep.25,2008
ForSupport,Visit:APPLE.COM/SUPPORT
$149.00
iPodtouch8GB
PartNumber:MB528LL/A
SerialNumber:1A836F5F201
$22.90feeifopened
ForSupport,Visit:APPLE.COM/SUPPORT
$229.00
ShureSE110-White
PartNumber:TM267LL/A
CustomerSupport:800-516-2525ext.4
$99.95
Sub-Total
Tax@7.0%
Total
AmountPaidViaVisa(A)
xxxxxxxxxxxxxxxxxxxxx^ban
081764
*R0435033178*
* R 0 4 3 5 0 3 3 1 7 8 *
TellusaboutyourexperienceattheAppleStore.
Visitwww.apple.com/feedback/retail.html
$477.95
$33.46
$511.41
$511.41
EXHIBIT 3
Document969-3
Document956-2
Filed12/07/14
Filed12/05/14 Page9
Page2of
of10
3
INTERNAL
REPRINT COPY
Date
September 11, 2008 11:09 AM
Customer
Email
THE ROSEN LAW FIRM THE ROSEN LAW FIRM

shorthills@apple com
973-564-5813
www apple com/retail/shorthills
Receipt ID

* R 0 4 3 5 0 3 3 1 7 8 *
Invoice Number
20080911R0435033178
Product Description
Return Date
Support Contact
Qty
Unit Price
iPod nano 8GB - green

- Part Number MB745LL/A
- Serial Number YM8361TK3QX
iPod touch 8GB

- Part Number MB528LL/A
- Serial Number 1A836F5F201
Shure SE110 - White

- Part Number TM267LL/A
For Support, Visit:

APPLE.COM/SUPPORT
$ 149.00
$ 149.00

$ 22.90 fee if opened
For Support, Visit:

APPLE.COM/SUPPORT
$ 229.00
$ 229.00
Customer Support: 800-516-2525

ext. 4
$ 99.95
$ 99.95
sub-total
tax @7.0%
Total
$ 477.95
$ 33.46
$ 511.41
Payment Method

!" #$
%&' (!)

*$'+)
,- #)
,& (!) ./-
$!0 )
$!0 (!) $'1
2# 3- ) %
% + '& 11$

+& .
Apple Confidential - Need to know

Trial Ex. 2884, 1 of 2
Page#1 of 2
Document969-3
Document956-2
Filed12/07/14
Filed12/05/14 Page10
Page3 of 3
10
INTERNAL
REPRINT COPY
Date
September 11, 2008 11:09 AM
Customer
Email
THE ROSEN LAW FIRM THE ROSEN LAW FIRM

shorthills@apple com
973-564-5813
www apple com/retail/shorthills
Receipt ID

* R 0 4 3 5 0 3 3 1 7 8 *
Invoice Number
Product Description
20080911R0435033178
Return Date
Support Contact
Apple Confidential - Need to know

Trial Ex. 2884, 2 of 2
Qty
Unit Price
Total
Page#2 of 2

ITunes Anti-Trust Plaintiff Filing in Response To Apple Motion To Dismiss

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Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page1 of 6

1 ROBBINS GELLER RUDMAN

Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page2 of 6

On December 6, 2014, Plaintiffs filed Plaintiffs Opposition to Apple Inc.s Motion to

Declaration of Alexandra S. Bernay in Support of Plaintiffs Opposition and Exhibits

Declaration of Marianna Rosen (Rosen Decl.). Through Plaintiffs previously filed

DATED: December 7, 2014

ROBBINS GELLER RUDMAN

655 West Broadway, Suite 1900

Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page3 of 6

BONNETT, FAIRBOURN, FRIEDMAN

THE KATRIEL LAW FIRM

GLANCY BINKOW & GOLDBERG LLP

NOTICE OF FILING PUBLIC DOCUMENTS RE PLAINTIFFS OPP TO APPLE INC.S MOTION TO

Case4:05-cv-00037-YGR Document969 Filed12/07/14 Page4 of 6

8 foregoing is true and correct. Executed on December 7, 2014.

ROBBINS GELLER RUDMAN

Maxwell Vaughn Pritt

Manual Notice List

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page1 of 17

1 ROBBINS GELLER RUDMAN

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page2 of 17

LEGAL ARGUMENT .........................................................................................................1

Apples Rule 12 Attack Is Meritless ........................................................................1

Even if Ms. Rosens Claims Were Mooted by Apples Change in Position

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page3 of 17

Association of Data Processing Service Organizations v. Camp,

Fulfillment Servs. Inc. v. United Parcel Serv., Inc.,

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page4 of 17

In re TFT-LCD Antitrust Litig.,

Krechman v. Cnty. of Riverside,

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page5 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page6 of 17

Apples Rule 12 Attack Is Meritless

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page7 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page8 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page9 of 17

Ms. Rosens Trial Testimony Establishes Her Article III Standing

And have you ever owned an iPod?

Have you when did you purchase your first iPod?

I believe that I purchased my first iPod in February, March of 2004. And I

And did you purchase all of those iPods at an Apple store?

21 Bernay Decl., Ex. 4, Trial Transcript at 583:10-584:10.3

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page10 of 17

Why have you purchased so many Apple products?

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page11 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page12 of 17

Even if Ms. Rosens Claims Were Mooted by Apples Change in

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page13 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page14 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page15 of 17

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page16 of 17

ROBBINS GELLER RUDMAN

ROBBINS GELLER RUDMAN

Case4:05-cv-00037-YGR Document969-1 Filed12/07/14 Page17 of 17

BONNETT, FAIRBOURN, FRIEDMAN

THE KATRIEL LAW FIRM

GLANCY BINKOW & GOLDBERG LLP

Case4:05-cv-00037-YGR Document969-2 Filed12/07/14 Page1 of 29

1 ROBBINS GELLER RUDMAN

Case4:05-cv-00037-YGR Document969-2 Filed12/07/14 Page2 of 29

I, ALEXANDRA S. BERNAY, declare as follows:

I submit this declaration in support of Plaintiffs Opposition to Apple Inc.s Motion to