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Marc Opperman, et al v. Path

May 6, 2013

MARC OPPERMAN, ET AL., PLAINTIFFS,
v.
PATH, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jon S. Tigar United States District Judge

ORDER DENYING MOTIONS TO SEVER WITHOUT PRJEUDICE

Before the Court are three motions to sever filed by Defendants Twitter, Inc., ECF No. 14 236, Electronic Arts, Inc. and Chillingo, Ltd., ECF No. 256, and Instagram, Inc., ECF No. 272. 15

Pursuant to Civil Local Rule 7-1(b), the Court hereby finds these motions appropriate for 16 resolution without oral argument, and therefore VACATES the motion hearings scheduled for 17 May 9, 2013. In consideration of the moving papers and related briefing, the Court will deny the 18 motions without prejudice. 19

I.ALLEGED FACTS

This proposed class action was filed on March 12, 2012, in the Western District of Texas, ECF No. 1. The Western District of Texas transferred the action to this Court on January 15, 22 2013. ECF No. 218. 23

The operative Second Amended Complaint ("SAC"), ECF No. 103, brings suit against Apple, Inc. and sixteen entities engaged in or owning an interest in entities engaged in the 25 development of Applications ("Apps") installed on Plaintiffs' mobile devices, which are 26 manufactured by Apple ("iDevices") and distributed via Apple's App Store. The original 27 complaint was filed in response to news reports in February 2012, including a February 15, 2012 28 article reporting that "the Apps Foodspotting, Foursquare, Gowalla, Hipster, Instagram, Kik Messenger, Path, Twitter, Yelp!, and (via Defendant Chillingo's integrated Crystal platform) 2

Angry Birds Classic and Cut the Rope . . . were engaged in surreptitiously transmitting iDevice 3 owners' private, personal address book materials to unapproved recipients." Id. ¶ 5. The SAC 4 alleges that each developer violated federal and state law because "the Apps made by Defendants 5 stole their iDevice address books by surreptitiously initiating unnoticeable Internet calls with 6 Plaintiffs' iDevices and transmitting their address books to unauthorized persons." SAC ¶ 2. The 7 SAC defines the proposed class as follows: 8

Plaintiffs and all owners of iDevices who obtained Apps from Apple's App Store that without requesting the iDevice owner's prior consent initiated an unauthorized iDevice call following which the owner's address book materials were copied, uploaded, transmitted, and/or disclosed to others and/or remotely stored and/or otherwise remotely used by others, including any of the following Apps: Angry Birds Classic, Crystal, Cut the Rope, Foursquare, Foodspotting, Gowalla, Hipster, Kik Messenger, Instagram, Path, Twitter, or Yelp! (the "Class") and who were damaged thereby.

Id. ¶ 46. 14

A.Allegations Related to Apple

Plaintiffs allege that Apple designed, manufactured, marketed, and sold the iDevices at 16 issue. Id. ¶ 84. Those iDevices are Apple's iPhone, iPad, and iPod Touch. Id. Each iDevice 17 comes with certain pre-installed Apps, including the "Contacts" App, which makes it possible for 18 users to store their address book contacts on their iDevices. Id. ¶ 89--92. The pre-installed App 1 Store App is a central repository for marketing and distributing other Apps designed by Apple or 20 third parties. Id. ¶ 93--95. In order to oversee the inclusion of third-party Apps in the App Store, 21

Apple created the iOS Developer Program; App developers pay a fee in order to participate in the 22 program, and if they charge users for their Apps, Apple charges them thirty percent of App 23 revenue. Id. ¶ 98. The only way to obtain a third party App on an iDevice is to use the App 24 Store. Id. ¶ 102. 25

Not all Apps submitted by third party developers make it onto the App store. Apple's iOS Developer Program functions as Apple's "testing, review and legal clearance process." Id. ¶ 105. 27

Through that program, Apple promulgated standards and guidelines by which App developers 28 must comply in order to distribute Apps through Apple's App Store. Id. ΒΆ 105--08. Plaintiffs allege that Apple "purports to review every app on the App Store based on a set of technical, 2 content, and design criteria, as well as ...


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