United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO DENY CLASS
CERTIFICATION RE: DKT. NO. 409
H. KOH, UNITED STATES DISTRICT JUDGE.
bring this putative class action against Defendant Apple,
Inc. based on Defendant's alleged failure to disclose an
alleged defect in the iPhone 6 and the iPhone 6 Plus. Before
the Court is Defendant's motion to deny class
certification. ECF No. 409. Having considered the submissions
of the parties, the relevant law, and the record in this
case, the Court DENIES Defendant's motion to deny class
is the designer, manufacturer, marketer, and seller of the
iPhone smartphone. ECF No. 172 ¶ 25 (Fourth Amended
Class Action Complaint, or “FACC”). The iPhone
utilizes a touchscreen for users to interact with the device,
and use of the touchscreen is required to send text messages,
capture video, browse the internet, and access applications,
among other functions. Id. ¶¶ 26, 28.
Defendant released the iPhone 6 and iPhone 6 Plus on
September 19, 2014. Id. ¶ 25. The iPhone 6 and
6 Plus both have a larger touchscreen than Defendant's
prior iPhone models. Id. ¶ 30. Purchasers of
the iPhone 6 and 6 Plus had 14 days after purchase to return
their iPhones for a full refund. ECF No. 54-2.
to Plaintiffs, the iPhone 6 and 6 Plus “suffer from a
material manufacturing defect that causes the touchscreen to
become unresponsive to users' touch inputs”
(hereinafter, the “touchscreen defect”).
Id. ¶ 43. Plaintiffs allege that the
touchscreen defect is caused by a defect in the iPhone's
external casing. Id. ¶ 45. Specifically,
“the touchscreen function fails because the phones'
external aluminum casing, whose primary purpose is to protect
the sensitive internal components from strain, is
insufficient to prevent the phones from bending during normal
use.” ECF No. 174 at 4. This bending causes
two main forms of damage to the iPhone's circuits:
“trace cracks . . . and/or solder ball cracks, both of
which negatively affect the flow of electricity.”
Id. at 6. Specifically, the damage interrupts the
flow of electricity within circuits, thereby preventing the
iPhone from recognizing when a user is touching the screen.
Id. The problem is at first intermittent, but
becomes permanent as time passes and the trace and solder
ball cracks worsen. Eventually, the touchscreen defect
“causes the touchscreen to completely fail to respond
to user inputs.” Id. at 7.
allege that Defendant knew about the touchscreen defect
before releasing the iPhone 6 and 6 Plus on September 19,
2014. A consumer posted on Defendant's website about
“iPhone 6 touchscreen problems” on September 18,
2014, the day before the iPhone 6 and 6 Plus were released to
the public. FACC ¶ 54; see also Id.
¶¶ 66-69 (other consumer complaints from shortly
after the release date). Moreover, Defendant's internal
testing “determined that the iPhone 6 was 3.3 times
more likely to bend than the iPhone 5s (the model immediately
prior to the subject iPhones) and that the iPhone 6 Plus was
7.2 times more likely to bend than the iPhone 5s.” ECF
No. 174 at 8. Underscoring the point, one of the major
concerns Defendant identified prior to launching the iPhones
was that they were “likely to bend more easily when
compared to previous generations, ” something that
Defendant described as “expected behavior.” ECF
No. 173-18 at 15.
allege that within days of the iPhones' release on
September 19, 2014, “there were widespread consumer
complaints about the iPhones bending.” ECF No. 174 at
8. Plaintiffs state that Defendant then publicly denied that
there was a bending problem, an incident the media termed
“BendGate.” FACC ¶ 54; ECF No. 174 at 8.
Specifically, Defendant stated:
Our iPhones are designed, engineered, and manufactured to be
both beautiful and sturdy. iPhone 6 and iPhone 6 Plus feature
a precision engineered unibody enclosure constructed from
machining a custom grade of 6000 series anodized aluminum,
which is tempered for extra strength. They also feature
stainless steel and titanium inserts to reinforce high stress
locations and use the strongest glass in the smartphone
industry. We chose these high-quality materials and
construction very carefully for their strength and
durability. We also perform rigorous tests throughout the
entire development cycle including 3-point bending, pressure
point cycling, sit, torsion, and user studies. iPhone 6 and 6
Plus meet or exceed all of our high quality standards to
endure everyday, real life use.
With normal use a bend in iPhone [sic] is extremely
rare and through our first six days of sale, a total of nine
customers have contacted Apple with a bent iPhone 6 Plus. As
with any Apple product, if you have questions please contact
FACC ¶ 79.
internal investigation, Defendant determined that underfill
was necessary to resolve the problems caused by the
touchscreen defect. As Plaintiffs explain, “[u]nderfill
is a bead of epoxy encapsulant that is placed on a circuit
chip to reinforce its attachment to the board substrate and
to stiffen the surrounding assembly. . . . Underfill is used
to prevent the manifestation of chip defects induced by
bending because it reinforces the connections and prevents
them from bending away from the substrate.” ECF No. 174
at 11 (internal citations omitted). Defendant had used
underfill on the preceding iPhone generation but did not
start using it on the Meson (U2402) chip in the iPhone 6 and
iPhone 6 Plus until May 2016. Id.
November 18, 2016, Defendant announced a customer service
program related to the touchscreen defect called the
“Multi-Touch Repair Program.” FACC ¶ 119.
Prior to the Multi-Touch Repair Program, Defendant charged
approximately $349 for a refurbished iPhone when a consumer
complained of the touchscreen defect outside of
Defendant's warranty. Id. Through the Repair
Program, Defendant has offered to repair consumers'
devices for $149 if the iPhone is otherwise working, and the
screen is not broken. Id. Defendant also offers to
reimburse consumers for amounts previously paid over $149.
Id. ¶ 120.
allege that Defendant did not disclose the existence of the
touchscreen defect despite having exposed consumers to
materials in which Defendant could have disclosed the defect.
Each new iPhone 6 and 6 Plus came in an identical box
designed by Defendant that contained various disclosures and
advertisements about the iPhones' capabilities.
See ECF No. 173-22 at 4-7. Inside the iPhone box,
Defendant included two documents that made additional
representations about the iPhone. ECF No. 174 at 10.
Defendant also requires users to navigate an iPhone setup
process before the iPhone can be used, and periodically
releases updates to the iPhones' software. ECF No. 174-4;
ECF No. 174 at 10, 22. However, Defendant did not disclose
the defect in any of these materials.
August 27, 2016, Plaintiffs Thomas Davidson, Jun Bai, and
Todd Cleary filed a putative class action complaint against
Defendant that alleged claims under (1) California's
Consumer Legal Remedies Act, Cal. Civ. Code § 1750; (2)
Unfair Competition Law, Cal Bus. & Prof. Code §
17200; (3) False Advertisement Law, Cal. Bus. & Prof.
Code § 17500; (4) common law fraud; (5) negligent
misrepresentation; (6) unjust enrichment; (7) breach of
implied warranty; (8) violation of the Magnuson-Moss Warranty
Act, 15 U.S.C. § 2301; and (9) violation of the
Song-Beverly Consumer Warranty Act, Cal. Civ. Code §
17290. ECF No. 1.
October 7, 2016, Plaintiffs filed a First Amended Class
Action Complaint that added several Plaintiffs and added
claims under the consumer fraud statutes of Illinois, New
Jersey, Florida, Connecticut, Texas, Colorado, Michigan, New
York, and Washington. ECF No. 20. On December 2, 2016,
Plaintiffs filed a Second Amended Class Action Complaint
(“SACC”), which added a Utah Plaintiff and a
claim under Utah's consumer fraud statute. ECF No. 43.
Plaintiffs therefore alleged twenty-two claims against
Defendant in total. Id. Plaintiffs' references
in their opposition to only twenty-one claims are therefore
incorrect. ECF No. 413 at 2. Plaintiffs sought to represent a
Nationwide Class of “[a]ll persons or entities in the
United States that purchased an Apple iPhone 6 or 6
Plus.” ECF No. 43. Alternatively, Plaintiffs sought to
represent state subclasses. Id.
the breadth of the Plaintiffs' action, the Court ordered
the parties at the November 30, 2016 initial case management
conference to each select five claims-for a total of ten
claims-to litigate through trial. ECF No. 44. The Court
initially scheduled trial on October 12, 2018. ECF No. 57. On December 5,
2016, the parties selected (1) New Jersey Consumer Fraud Act,
N.J. Stat. Ann. § 56:8-1; (2) Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat. § 501.201; (3)
Washington Consumer Protection Act, Wash. Rev. Code §
19.86.010; (4) Illinois Consumer Fraud and Deceptive Trade
Practices Act, Ill. Comp. Stat ¶ 505; (5) Texas
Deceptive Trade Practices Act, Tex. Bus. & Com. Code
¶ 17.41; (6) Colorado Consumer Protection Act, Colo.
Rev. Stat. § 6-1-105; (7) common law fraud; (8) breach
of express warranty; (9) breach of implied warranty; and (10)
Magnuson-Moss Act. ECF No. 44 at 1-2.
instant order, the Court will refer to the foregoing claims
as the “Selected Claims.” By contrast, the Court
will refer to the other claims alleged in the Fourth Amended
Class Action Complaint (“FACC”) as the
Labeling of Groups of Plaintiffs
purposes of ruling on the instant motion, the Court also
finds it necessary to discuss the labeling of the various
groups of Plaintiffs in the instant case. The parties attempt
to distinguish between the “Selected Claims
Plaintiffs” and the “Parked Claims
Plaintiffs.” However, this distinction is unhelpful.
There is overlap between the Plaintiffs who alleged the
Selected Claims and the Plaintiffs who alleged the Parked
Claims. Indeed, pursuant to the pleadings, “[a]ll
Plaintiffs” alleged three of the Selected Claims:
common law fraud, breach of express warranty, and violation
of the Magnuson-Moss Warranty Act. ECF No. 43 ¶¶
211-214, 226-236, 242-252; FACC ¶¶ 268-272,
284-294, 300-310. “All Plaintiffs” also allege
two of the Parked Claims: negligent misrepresentation and
unjust enrichment. ECF No. 43 ¶¶ 220-236; FACC
¶¶ 273-283. Accordingly, to the extent Plaintiffs
assert that “the Parked Claims Plaintiffs” are
“individuals who did not bring any of the Selected
Claims, ” and that there is “zero overlap between
the two groups, ” these assertions are incorrect. ECF
No. 413 at 1, 2.
contrast, as outlined below, only a small subset of
Plaintiffs filed the third motion for class certification as
to the Selected Claims. These Plaintiffs were John
Borzymowski of Florida, William Bon of Washington, and Matt
Muilenburg of Washington. ECF No. 341. These Plaintiffs have
since voluntarily dismissed all of their claims with
prejudice. ECF No. 412. Accordingly, in the instant order,
the Court will refer to John Borzymowski of Florida, William
Bon of Washington, and Matt Muilenburg of Washington as the
“Former Plaintiffs.” The instant motion focuses
on the impact of the Court's ruling on the third motion
for class certification as to the Selected Claims. ECF No.
409. Thus, the Court believes the distinction between the
Former Plaintiffs and the current Plaintiffs to be a more
helpful categorization than the one deployed by the parties.
Discovery Structure and Defendant's Motions to Dismiss as
to the Selected Claims
their November 23, 2016 joint case management statement, the
parties expressed an “agreement not to propound
discovery until after a ruling on [Defendant's] motion to
dismiss.” ECF No. 35 at 15. The Court then confirmed
that the parties “agreed to stay discovery until the
ruling on the motion to dismiss” at the November 30,
2016 case management conference. ECF No. 47 at 31:5-7.
adopting the Parked Claims structure, at the January 12, 2017
case management conference, the Court specifically asked
whether the parties wanted to proceed with discovery on all
twenty-two claims alleged in the SACC when the stay was
lifted. ECF No. 69 at 27:13-15. Both parties agreed that
discovery should indeed proceed across all twenty-two claims
at once. Id. at 27:13-25, 28:1-18 (The Court:
“Are we anticipating that if and when the discovery
stay is lifted, is that on all 22 claims, or is it only on
this narrow set of ten claims?” // Mr. Singh: “I
think everything.” // Mr. Wright: “I agree that
we don't want to bifurcate discovery so we're in
agreement with that.”). In the Court's January 12,
2017 case management order, the Court memorialized this
agreement and held that “there will be no bifurcation
of discovery” in the instant case. ECF No. 57. The sole
exception that the Court contemplated was for
“transactional discovery, such as sales information and
customer names, ” in states that correspond to the
Parked Claims. Id. at 1. The Court instructed the
parties to “meet and confer” regarding that
discovery, and the parties agreed that Defendant would not be
required to produce that discovery by the fact discovery
deadline. Id.; ECF No. 406 at 5:4 - 16. Aside from
this exception, discovery in the instant case therefore
proceeded simultaneously across all twenty-two claims.
Consistent with this decision, the Court scheduled the close
of fact and expert discovery with no distinction between any
of the Plaintiffs, and with no distinction between the
Selected Claims and the Parked Claims. ECF Nos. 57, 109, 145,
January 6, 2017, Defendant filed a motion to dismiss the SACC
as to the Selected Claims. ECF No. 54. On March 14, 2017, the
Court dismissed all ten of the Selected Claims with leave to
amend. See ECF No. 84; Davidson v. Apple,
Inc., 2017 WL 976048 (N.D. Cal. Mar. 14, 2017)
(“Davidson I”). The Court noted that
“neither party specified which state's common law
applied to the selected common law claims, ”
id. at 8, but that the parties generally cited
California law in their briefing, id. at 19. In its
order, the Court therefore also directed the parties to
“select one state's common law for purposes of
litigating Plaintiffs' selected breach of express and
implied warranty claims, ” and to “select one
state's common law for purposes of litigating
Defendant's selected common law fraud claim.” ECF
No. 84 at 8. On March 21, 2017, the parties selected Illinois
law for the purposes of the breach of express and implied
warranty claims, and Pennsylvania law for the purposes of the
common law fraud claim. ECF No. 85.
April 4, 2017, Plaintiffs filed the Third Amended Class
Action Complaint (“TACC”). ECF No. 86. On April
18, 2017, Defendant moved to dismiss the TACC as to the
Selected Claims. See ECF No. 87.
25, 2017, the Court granted in part and denied in part
Defendant's motion to dismiss the TACC as to the Selected
Claims. See ECF No. 103; Davidson v. Apple,
Inc., 2017 WL 3149305 (N.D. Cal. July 25, 2017)
(“Davidson II”). To start, the Court
found that some Plaintiffs lacked standing to seek injunctive
relief enjoining Defendant's allegedly fraudulent
misrepresentations and omissions about the iPhones because
they did not intend to buy a new phone or participate in
Defendant's Multi-Touch Repair Program. Id. at
*7-8. Conversely, other Plaintiffs did have standing to seek
injunctive relief because they intended to participate in the
Multi-Touch Repair Program, or were at least willing to
consider doing so. Id. at *8-9.
Court then turned to Plaintiffs' fraud claims. First, the
Court dismissed Plaintiffs' fraud claims based on
affirmative misrepresentations “because Plaintiffs have
failed to identify an actionable misrepresentation in the
September 25, 2014 statement-and because this statement is
the only statement that forms the basis of Plaintiffs'
affirmative misrepresentation claims.” Id. at
*13. Second, the Court declined to dismiss Plaintiffs'
fraud claims based on an omission theory because
“Plaintiffs have sufficiently alleged the information
about the iPhone to which Plaintiffs were exposed either
prior to their purchase or immediately after their purchase
and within the time window in which they could have returned
their iPhone for a full refund.” Id. at *14.
The Court also found that Plaintiffs had adequately alleged
that Defendant knew of the touchscreen defect at the time of
the Plaintiffs' purchases. See Id. at *14-15.
Court next dismissed Plaintiffs' claims under the NJCFA
and Pennsylvania common law fraud with prejudice.
Plaintiffs' NJCFA claim failed because the only New
Jersey Plaintiff experienced the touchscreen defect after the
expiration of Defendant's one-year limited warranty
period, and New Jersey law provides that “[a] defendant
cannot be found to have violated the CFA when it provided a
part-alleged to be substandard-that outperforms the warranty
provided.” Perkins v. DaimlerChrysler Corp.,
890 A.2d 997, 1004 (N.J. App. Div. 2006). The Court dismissed
Plaintiffs' claim for Pennsylvania common law fraud as
barred by the economic loss doctrine, which bars a plaintiff
“from recovering in tort economic losses to which their
entitlement flows only from a contract.” Werwinski
v. Ford Motor Co., 286 F.3d 661, 670 (3d Cir. 2002).
the Court dismissed Plaintiffs' breach of express and
implied warranty claims under Illinois law with prejudice.
After finding that the limited warranty was not
unconscionable, the Court dismissed the breach of express
warranty claim because the limited warranty excluded design
defects, and Plaintiffs alleged only a design defect.
Davidson II, 2017 WL 3149305, at *24. Similarly, the
Court dismissed the breach of implied warranty claim because
the limited warranty was not unconscionable and expressly
disclaimed an implied warranty. Id. at *26. The
Court also dismissed Plaintiffs' Magnuson-Moss Act claim
because the parties did not dispute that the claim rose or
fell with Plaintiffs' express and implied warranty claims
under state law. Id.
of the Selected Claims, five claims (all premised on a
fraudulent omissions theory) survived Defendant's motion
to dismiss the TACC: (1) a Colorado Consumer Protection Act
claim; (2) a Florida Deceptive and Unfair Trade Practices Act
claim; (3) an Illinois Consumer Fraud and Deceptive Trade
Practices Act claim; (4) a Texas Deceptive Trade Practices
Act claim; and (5) a Washington Consumer Protection Act
claim. Upon resolving Defendant's motion to dismiss the
TACC, the Court lifted the stay of discovery on August 2,
2017. ECF No. 109.
December 21, 2017, the Court granted the parties'
stipulation to file a Fourth Amended Class Action Complaint
(“FACC”). ECF No. 169. The FACC was materially
identical to the TACC save for the substitution of Plaintiff
Eric Siegal, an Illinois resident, for Adam Benelhachem, the
previous Illinois Plaintiff. See FACC. On January 3,
2018, Plaintiffs filed the FACC. ECF No. 172. On January 17,
2018, Defendant filed its Answer to the FACC. ECF No. 177.
The Court Denies Plaintiffs' First Motion for Class
Certification as to the Selected Claims Because
Plaintiffs' First Damages Expert Report Failed to Satisfy
January 5, 2018, Plaintiffs filed their first motion for
class certification as to the Selected Claims. ECF No. 174.
The Plaintiffs who filed the first motion for class
certification as to the Selected Claims were Justin Bauer of
Colorado, John Borzymowski of Florida, Eric Siegal of
Illinois, Taylor Brown of Texas, William Bon of Washington,
and Matt Muilenburg of Washington. Id. at 1.
Plaintiffs sought to certify the following proposed class
under Rule 23(b)(3) or Rule 23(c)(4): “Any person
residing in Colorado, Florida, Illinois, Washington, or Texas
who purchased an Apple iPhone 6 or iPhone 6 Plus from Apple
or an Apple Authorized Service Provider (listed on
https://locate.apple.com/) that was manufactured without
underfill under the U2402 (Meson) integrated circuit
chip.” Id. at 3. Plaintiffs argued in the
alternative that the Court should certify subclasses to
account for differences among the states' laws.
Id. at 23 n.13; TACC ¶ 129 (“In the
alternative, Plaintiffs seek to represent the following state
sub-classes.”). On February 10, 2018, Defendant filed
its opposition, ECF No. 183, and on March 2, 2018, Plaintiffs
filed their reply. ECF No. 199.
8, 2018, the Court denied Plaintiffs' first motion for
class certification as to the Selected Claims. ECF No. 225;
Davidson v. Apple, 2018 WL 2325426 (N.D. Cal. May 8,
2018) (“Davidson III”). The Court
rejected Defendant's arguments that Plaintiffs lacked
standing, id. at *7-10, and explained that
Plaintiffs' Colorado claim was categorically barred
because the applicable Colorado law bars class actions for
damages. Id. at *10-11.
relevant to this motion, the Court addressed whether the
remaining state law Selected Claims satisfied Rule 23(a) and
Rule 23(b)(3). The Court determined that the remaining
Selected Claims under Florida, Illinois, Washington, and
Texas law satisfied Rule 23(a). Id. at *11-13. The
Court concluded that predominance was met for Illinois,
Florida, and Washington Selected Claims because those
statutes permit inferring reliance on a classwide basis, but
denied certification of the Texas Selected Claim because
Texas law does not permit inferring reliance and
individualized inquiries would predominate on Plaintiffs'
Texas claim. Id. at *15-16. The Court also rejected
Defendant's arguments that Plaintiffs could not prove
exposure and manifestation on a classwide basis for the
Selected Claims. Id. at *17-20.
Court then determined that Plaintiffs' damages model
failed to satisfy the requirements set forth in Comcast
v. Behrend, 569 U.S. 27 (2013). The Court explained that
in Comcast, the United States Supreme Court held
that “a plaintiff bears the burden of providing a
damages model showing that ‘damages are susceptible of
measurement across the entire class for purposes of Rule
23(b)(3).'” Davidson III, 2018 WL 2325426,
at *21 (quoting Comcast, 569 U.S. at 35). “The
damages model ‘must measure only those damages
attributable to' the plaintiff's theory of
liability.” Id. (quoting Comcast, 569
U.S. at 35).
Court then turned to Plaintiffs' damages model.
Plaintiffs' theory of liability was that Defendant's
failure to disclose the touchscreen defect caused consumers
“to pay more for those products than they otherwise
would have.” ECF No. 174 at 26. Plaintiffs' damages
expert, Dr. Stefan Boedeker, proposed a “Choice-Based
Conjoint Analysis” damages model to analyze the value
consumers attach to specific product attributes
(“Boedeker 1”). Davidson III, 2018 WL
2325426, at *21. In a survey, Boedeker asked respondents to
choose between phones differing in storage capacity, screen
size, talk time, price, and defectiveness (no defect, defect
costing $100 to repair or replace, or defect costing $200 to
repair or replace). Id. Then, Boedeker
“isolated the (negative) value associated with
defectiveness, ” and determined that the economic loss
was $323 or 51.7% of the phone's price for the $100
defect and $432 or 69.2% of the phone's price for the
$200 defect. Id.
argued, and the Court agreed, that Boedeker 1 failed to
satisfy Comcast “because it assumes that the
touchscreen defect will manifest in all iPhones.”
Id. at *22. By contrast, Plaintiffs' theory of
liability was that Defendant “failed to disclose the
existence of a touchscreen defect that manifests in
approximate 5.6 percent of the iPhone 6 Plus (after two years
of use) and at a somewhat lower rate for the iPhone 6.”
Id. (citing ECF No. 174, Plaintiffs' motion for
class certification). Thus, the Court held that to correspond
to Plaintiffs' theory of liability, Boedeker 1 should
measure “how much consumers overpaid for iPhones
assuming a roughly 5.6 percent or less chance that consumers
would experience the touchscreen defect, ” rather than
what Boedeker 1 actually measured: “how much consumers
overpaid for a touchscreen defect that is certain to manifest
in all iPhones.” Id. (emphasis in
original). The options in the Boedeker 1 survey failed to
convey that the touchscreen defect might not manifest.
Id. at *23. This deficiency alone meant that
Boedeker 1 failed to satisfy Comcast.
Court stated that Boedeker 1 failed to satisfy
Comcast in other respects. For one, Boedeker 1
assumed that the touchscreen defect rendered iPhones
“inoperable, ” but “none of the named
Plaintiffs have experienced complete iPhone inoperability as
a result of the touchscreen defect.” Id. at
*23. In addition, Boedeker 1 asked consumers “about a
generic defect instead of one specifically affecting a
phone's touchscreen, ” and thus “necessarily
assumed that respondents would value all defects
equally.” Id. The Court held that this model
was inconsistent with Plaintiffs' theory of liability
“because it unmoors Plaintiffs' damages from the
specific touchscreen defect alleged to have harmed
them.” Id. Thus, the Court concluded that
Plaintiffs failed to satisfy the Rule 23(b)(3) predominance
requirement as to the Selected Claims because Boedeker 1 was
inadequate under Comcast. Id. at *24.
addition, the Court denied Plaintiffs' request for
injunctive relief as waived, id. at *25, and denied
Plaintiffs' motion to certify a Rule 23(c)(4) issues
class because Plaintiffs failed to show why an issues class
“would materially advance the litigation as a
whole.” Id. at *25-26.
The Court Denies Plaintiffs' Second Motion for Class
Certification as to the Selected Claims Because
Plaintiffs' Motion Relied on a Hypothetical Expert
16, 2018, in the parties' joint case management
statement, Plaintiffs stated that they intended to either
file a motion for leave to file a motion for reconsideration
of the Court's May 8, 2018 denial of class certification
as to the Selected Claims or an appeal under Federal Rule of
Civil Procedure 23(f), or both. ECF No. 232 at 1. Plaintiffs
also asked the Court to stay the case. Id.
22, 2018, Plaintiffs declined to file a motion for
reconsideration, and instead filed in the Ninth Circuit a
petition for permission to appeal the Court's denial of
class certification under Federal Rule of Civil Procedure
23(f). ECF No. 235. On May 23, 2018, the Court held a case