(CN) – Apple and AT&T customers should arbitrate their antitrust claims and be barred from moving forward as a class, according to new motions by the companies in the ongoing litigation over iPhone carrier restrictions.
Lead plaintiffs Paul Holman and Lucy Rivello filed a federal complaint against Apple and AT&T Mobility in October 2007, claiming the companies illegally controlled consumer choices by limiting iPhone users to AT&T plans. A San Jose federal judge certified their class action last year.
AT&T and Apple say the lawsuit should be arbitrated and the class should be decertified because the “entire theory rests on a single, unified course of conduct.”
“Plaintiffs have wrapped themselves for years in the service contract and in allegations of a single ATTM-Apple conspiracy to survive motions to dismiss and obtain class certification,” according to Apple’s motion to compel arbitration. “They cannot run from those theories now.”
That motion, authored by Sadik Huseny with Latham & Watkins, also asks the court to decertify.
“If plaintiffs now try to backtrack from their years-old reliance on the wireless service contract in order to evade its arbitration clause – and if the court allows them to do so – decertification would still be required because that contract formed the basis for the court’s entire prior class certification analysis and ultimate approval of a class defined by reference to the service contract,” the 25-page filing states (italics in original).
The companies claim the plaintiffs did not waive their right to arbitrate and that there is no merit to the argument that the plaintiffs never agreed to arbitrate.
If the court rejects Apple’s demand for arbitration, it should still stay the litigation until the claims pending AT&T arbitration, according to a different motion by AT&T.
Yet another motion to decertify the class quotes a recent 9th Circuit case involving AT&T’s arbitration provision, in which Judge Ronald Whyte said “the argument that ATTM’s arbitration provision is unenforceable solely because it includes a class action waiver is no longer viable.”