Zack Ward v. Apple, Inc.

dissenting:

I respectfully dissent. I would not reach the merits of this appeal because, in my Anew, we lack jurisdiction to do so. Even if we had jurisdiction, however, I would still decline to reach the merits because the plaintiffs waived any challenge to the errors they now allege on appeal.

I.

This case comes to us in a unique procedural posture. For context, I begin with some background on an earlier case, referenced by the majority as “Apple II.” Apple II involved a different set of plaintiffs and a broader set of claims before Judge Ware than those in Apple III, which were before Judge Rogers, and are now before us on appeal.

The Apple II Plaintiffs were the first to raise the Rule 19 arguments we now see in the present appeal. But Judge Ware was unpersuaded and ruled against the Apple *1056 II Plaintiffs. The record indicates that Judge Ware’s July 11 order did not address at least some of the arguments made in the Apple II Plaintiffs’ opposition (and which the Apple III Plaintiffs raise here on appeal), including the argument that ATTM itself failed to claim an interest in the litigation, and that any claimed interest was not “cognizable” under Rule 19. Instead of…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZACK WARD; THOMAS BUCHAR, on No. 12-17805 behalf of themselves and all others similarly situated, D.C. No. Plaintiffs-Appellants, 4:12-cv-05404-

YGR

v.

APPLE INC., OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted January 16, 2015—San Francisco California

Filed June 29, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Wallace WARD V. APPLE, INC.

SUMMARY*

Antitrust/Appellate Jurisdiction

The panel reversed the district court’s dismissal of an antitrust action for failure to join an alleged co-conspirator as a defendant.

Plaintiffs filed a putative class action against Apple, Inc., alleging that Apple conspired with AT&T Mobility (ATTM) to violate federal antitrust law in connection with Apple’s agreement with ATTM that ATTM would be the exclusive provider of voice and…

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge WALLACE.

OPINION

Zack Ward and Thomas Buchar (Plaintiffs) filed a putative class action against Apple Inc. (Apple), alleging that Apple conspired with AT & T Mobility (ATTM) to violate federal antitrust laws. The Plaintiffs’ claims relate to Apple’s exclusivity agreement with ATTM that ATTM would be the exclusive provider of voice and data services for Apple’s iPhone. The Plaintiffs appeal from the district court’s order dismissing their claims under Federal Rule of Civil Procedure 19 for failure to join ATTM as a defendant.

In this opinion, we consider the contours of the general rule that antitrust co-conspirators need not be joined in one action. The Plaintiffs argue that the district court’s determination that ATTM was a required party under Rule 19 runs counter to this rule. The Plaintiffs also contend that, even if ATTM could otherwise qualify as a required party, Apple has not shown that ATTM actually asserts any interests in this action, or that its interests warrant protection under Rule 19.

We reverse the district court’s judgment, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This…