Zack Ward v. Apple, Inc. , 791 F.3d 1041 ( 2015 )


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  •                  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
    2                      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 data services for Apple’s iPhone. The
    district court dismissed plaintiffs’ claims under Federal Rule
    of Civil Procedure 19 for failure to join ATTM as a
    defendant.
    The panel held that it had jurisdiction under 
    28 U.S.C. § 1291
     over plaintiffs’ appeal from a final decision of the
    district court even though the current case, Apple III, had
    been consolidated with another case, Apple II, in which the
    district court had dismissed a voice and data aftermarket
    monopolization claim for failure to join ATTM as a party.
    The panel held that even though the parties in Apple III had
    stipulated to submit the Apple II briefs on the Rule 19 issue
    and had agreed that the district court should grant Apple’s
    motion to dismiss if it decided to follow the decision in Apple
    II, the district court’s judgment was adverse to plaintiffs and
    thus appealable.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    WARD V. APPLE, INC.                        3
    On the merits, the panel held that the district court abused
    its discretion in finding that ATTM, an alleged antitrust
    coconspirator, was a necessary party under Rule 19. The
    panel held that although the allegation that an entity is a joint
    tortfeasor with the defendant does not mean the entity must
    be joined in one action under Rule 19(a)(1)(A), there may be
    circumstances in which an alleged joint tortfeasor has
    particular interests that cannot be protected in a legal action
    unless it is joined under Rule 19(a)(1)(B). The panel
    concluded that ATTM was not a required party under Rule
    19(a)(1)(A), but the district court abused its discretion by
    failing to identify ATTM’s interests in this action, or address
    how those interests, if any, might be impaired if this action
    were resolved in its absence, as required by Rule 19(a)(1)(B).
    In addition, the record did not disclose whether ATTM had an
    interest that was entitled to protection under Rule 19. The
    panel remanded the case to the district court for further
    proceedings.
    Dissenting, Judge Wallace wrote that the court of appeals
    lacked statutory appellate jurisdiction because the district
    court’s decision was not involuntary or adverse to plaintiffs.
    He wrote that even if the court had statutory jurisdiction, he
    would conclude that plaintiffs waived the Rule 19 issue by
    inviting the district court to adopt the very analysis they
    argued against on appeal.
    4                   WARD V. APPLE, INC.
    COUNSEL
    Mark C. Rifkin (argued), Alexander H. Schmidt, and Michael
    Liskow, Wolf Haldenstein Adler Freeman & Herz LLP, New
    York, New York; Francis M. Gregorek and Rachele R.
    Rickert, Wolf Haldenstein Adler Freeman & Herz LLP, San
    Diego, California; Randall S. Newman, Randall S. Newman
    P.C., New York, New York, for Plaintiff-Appellant Zack
    Ward.
    Adam J. Levitt, Grant & Eisenhofer P.A., Chicago, Illinois,
    for Plaintiff-Appellant Thomas Buchar.
    Daniel M. Wall (argued) and Christopher S. Yates, Latham &
    Watkins LLP, San Francisco, California; J. Scott Ballenger
    and Roman Martinez, Latham & Watkins LLP, Washington,
    D.C., for Defendant-Appellee.
    OPINION
    M. SMITH, Circuit Judge:
    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.
    WARD V. APPLE, INC.                        5
    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 appeal is from the third of three related putative class
    actions asserting antitrust claims against Apple in connection
    with its exclusivity agreement (Exclusivity Agreement) with
    ATTM.
    I. Antitrust Allegations
    Apple began selling the iPhone in June of 2007. Apple
    entered into an agreement with ATTM that ATTM would be
    the exclusive provider of voice and data services for the
    iPhone for five years. The Plaintiffs allege that Apple
    installed “software locks” on each iPhone it sold in order to
    enforce ATTM’s exclusivity. These locks prevented ATTM
    customers who used iPhones from switching to voice and
    data services providers who competed with ATTM. The
    Plaintiffs allege that they were not informed that they would
    be locked into ATTM’s services for five years. They further
    allege that the Exclusivity Agreement enabled ATTM to
    charge supra-competitive prices for wireless services, and
    6                  WARD V. APPLE, INC.
    that Apple shared in ATTM’s revenues pursuant to the
    Exclusivity Agreement.
    II. Apple I
    Nine Apple customers filed putative class actions against
    Apple and ATTM in the Northern District of California in the
    summer and fall of 2007. These actions were consolidated
    before Judge Ware as In re Apple AT&TM Anti-Trust
    Litigation, No. 5:07-cv-05152-JW (N.D. Cal.) (Apple I). The
    plaintiffs in Apple I asserted claims under § 2 of the Sherman
    Act, 
    15 U.S.C. § 2
    , among other claims.
    In 2008 and 2009, the district court denied motions by
    Apple and ATTM to dismiss the plaintiffs’ antitrust claims.
    The district court certified a class on July 8, 2010.
    ATTM sought to compel arbitration pursuant to an
    agreement it entered into with its wireless customers. The
    district court denied the motion, citing the then-applicable
    Discover Bank rule. 
    596 F. Supp. 2d 1288
    , 1297–99 (N.D.
    Cal. 2008) (citing Discover Bank v. Superior Court, 
    36 Cal. 4th 148
     (2005) (holding that, under some circumstances, class
    action waivers in consumer arbitration agreements are
    unconscionable)). In 2011, following the Supreme Court’s
    decision in AT&T Mobility LLC v. Concepcion, 
    131 S. Ct. 1740
     (2011), which abrogated Discover Bank, ATTM
    renewed its motion to compel arbitration. Apple also moved
    to compel arbitration under ATTM’s agreement.
    The district court granted both ATTM’s and Apple’s
    motions to compel arbitration. 
    826 F. Supp. 2d 1168
    , 1179
    (N.D. Cal. 2011). It held that because the plaintiffs asserted
    claims arising out of their agreements with ATTM, which
    WARD V. APPLE, INC.                      7
    contained arbitration clauses, the plaintiffs were “equitably
    estopped” from refusing to arbitrate “jointly” against ATTM
    and Apple. 
    Id.
     at 1178–79.
    III.      Apple II
    In 2011 and 2012, two new groups of Apple customers
    filed class action complaints in the Northern District of
    California. These actions were consolidated by Judge Ware
    as In re Apple iPhone Antitrust Litigation, No. 4:11-cv-
    06714-YGR (N.D. Cal.) (Apple II). The consolidated
    complaint in Apple II alleged antitrust claims that were
    similar to the claims in Apple I. However, unlike in Apple I,
    ATTM was not named as a defendant in Apple II. Apple
    moved to compel arbitration on the same grounds it asserted
    in Apple I. The district court denied Apple’s motion, finding
    that the plaintiffs were not equitably estopped from refusing
    to arbitrate their claims against Apple. Unlike the Apple I
    plaintiffs, the court reasoned, the Apple II plaintiffs had pled
    their claims against Apple alone, without “intertwining” them
    with ATTM’s wireless service agreement. 
    874 F. Supp. 2d 889
    , 898–99 (N.D. Cal. 2012).
    Apple also sought dismissal under Rule 12(b)(7), arguing
    that ATTM was a required party under Rule 19. 
    Id. at 899
    .
    In support of its motion, Apple submitted a declaration from
    ATTM’s counsel from the Apple I litigation. The declaration
    stated, in pertinent part:
    ATTM is aware of this litigation . . . . ATTM
    has an interest in this case, since the
    Consolidated Complaint alleges that ATTM is
    a monopolist and makes various allegations
    regarding the service ATTM provides to
    8                   WARD V. APPLE, INC.
    ATTM customers using iPhones . . . .
    However, ATTM has not intervened in this
    suit because, given the ruling in [Apple I], any
    such claims must be arbitrated. If ATTM
    were to be joined to this litigation, ATTM
    would move to compel arbitration . . . .
    In response, the district court held that ATTM was a
    necessary party. The court reasoned:
    [I]n order to evaluate Plaintiffs’ antitrust
    claims in regard to the alleged conspiracy to
    monopolize the alleged iPhone Voice and
    Data Services Aftermarket, the Court will be
    required to evaluate ATTM’s conduct, insofar
    as Plaintiffs allege, inter alia, that ATTM
    unlawfully achieved market power in that
    Aftermarket due to the conspiracy and thereby
    foreclosed other companies from entering the
    market. . . . Such an evaluation of ATTM’s
    conduct would necessarily implicate the
    interests of ATTM, which means that ATTM
    is a necessary party pursuant to Rule 19(a).
    
    Id.
     at 900 (citing Laker Airways, Inc. v. British Airways, PLC,
    
    182 F.3d 843
    , 847–48 (11th Cir. 1999)). The district court
    ordered that the claim relating to monopolization of the voice
    and data aftermarket be dropped if ATTM was not joined.
    See 
    id.
     at 902 n.29. Shortly thereafter, Apple II was
    reassigned to Judge Yvonne Gonzalez Rogers. The plaintiffs
    declined to join ATTM as a party in their amended complaint,
    which resulted in the dismissal of their voice and data
    aftermarket monopolization claim.
    WARD V. APPLE, INC.                       9
    IV.     Apple III
    On October 19, 2012, the present Plaintiffs initiated this
    putative class action against Apple in Ward v. Apple Inc.,
    4:12-cv-05404-YGR (N.D. Cal.) (Apple III), asserting a
    single claim that Apple conspired to monopolize the
    aftermarket for iPhone voice and data services. ATTM was
    not named as a defendant. The case was consolidated with
    Apple II. The parties in Apple III stipulated to submit the
    Apple II briefs on the Rule 19 issue, and agreed that the
    district court should grant Apple’s motion to dismiss under
    Rule 12(b)(7) if the court decided to follow Judge Ware’s
    decision in Apple II. The district court granted the motion
    “for the reasons set forth in Judge Ware’s July 11, 2012
    Order,” and entered judgment in favor of Apple. The
    Plaintiffs filed a timely notice of appeal.
    JURISDICTION AND STANDARD OF REVIEW
    We have appellate jurisdiction under 
    28 U.S.C. § 1291
    because this is an appeal from a final decision of the district
    court. We respectfully disagree with the dissent’s conclusion
    that the judgment below was not “adverse” to the Plaintiffs,
    as our case law has defined that term.
    The dissent contends that we “only” have jurisdiction
    over appeals from final decisions of the district court that are
    “involuntary and adverse to the appellant.” This statement of
    our law is too broad. We have repeatedly recognized that
    voluntary dismissals with prejudice that produce an adverse
    final judgment may be appealed. See Berger v. Home Depot
    USA, Inc., 
    741 F.3d 1061
    , 1065 (9th Cir. 2014); Concha v.
    London, 
    62 F.3d 1493
    , 1506–09 (9th Cir. 1995); Unioil, Inc.
    v. E.F. Hutton & Co., 
    809 F.2d 548
    , 556 (9th Cir. 1986);
    10                  WARD V. APPLE, INC.
    Coursen v. A.H. Robins Co., 
    764 F.2d 1329
    , 1342, corrected,
    
    773 F.2d 1049
     (9th Cir. 1985). It is true that our decision in
    Seidman v. City of Beverly Hills, 
    785 F.2d 1447
    , 1448 (9th
    Cir. 1986), contained broad language stating that “[a] plaintiff
    may not appeal a voluntary dismissal because it is not an
    involuntary adverse judgment against him.” However, our
    decision in Concha v. London clarified that a plaintiff “may
    appeal from a voluntary dismissal with prejudice, at least
    where the plaintiff is not acting pursuant to a settlement
    agreement intended to terminate the litigation.” 
    62 F.3d at 1057
     (emphasis omitted). In doing so, Concha specifically
    interpreted Seidman to stand for the narrower principle that
    a plaintiff may not “appeal from a joint stipulation to
    voluntary dismissal, entered unconditionally by the court
    pursuant to a settlement agreement.” 
    Id.
     (emphasis added).
    And, as the dissent acknowledges, we held in Berger v. Home
    Depot USA, Inc. that “absent a settlement, a stipulation alone
    does not destroy [the] adversity” required for appellate
    jurisdiction. 741 F.3d at 1065.
    The dissent’s conclusion that this judgment was not
    adverse to the Plaintiffs appears to be based, in part, on a
    definition of “adverse” that is without basis in our case law
    concerning statutory appellate jurisdiction. The dissent
    contends that a judgment is not adverse if “no adverse
    positions were taken by the parties” or if the issue was not
    “actually litigated.” The dissent appears to understand
    “adverse” to refer to whether the proceedings were
    sufficiently adversarial.     Of course, parties must be
    sufficiently adverse to one another for a justiciable
    controversy to exist, see, e.g., United States v. Johnson,
    
    319 U.S. 302
    , 304–05 (1943), but we do not understand the
    dissent to argue that this appeal is non-justiciable because it
    lacks sufficient adversity for Article III purposes, but rather
    WARD V. APPLE, INC.                       11
    only that we lack statutory appellate jurisdiction. In
    construing our statutory jurisdiction, we have consistently
    used the term “adverse” to refer to whether a judgment was
    prejudicial to a party, not whether the parties took sufficiently
    adverse positions. For example, in Concha v. London we
    explained that
    [u]nder Coursen and Unioil, the appealability
    of a voluntary dismissal ordinarily depends on
    whether the action was dismissed with or
    without prejudice. The basic principle we
    follow is that the plaintiff may appeal a
    voluntary dismissal only when it is with
    prejudice to his right to commence another
    action for the same cause or otherwise
    subjects him to prejudicial terms or
    conditions.
    
    62 F.3d at 1507
    . We went on to explain that “[a] voluntary
    dismissal without prejudice is not adverse to the plaintiff’s
    interests . . . [because] [t]he plaintiff is free to seek an
    adjudication of the same issue at another time in the same or
    another forum.” 
    Id.
     By contrast, a voluntary dismissal with
    prejudice is adverse to the plaintiff’s interests because “the
    plaintiff submits to a judgment that serves to bar his claims
    forever.” 
    Id.
     The judgment in this case is adverse to the
    Plaintiffs because it bars their claims in future proceedings.
    The requirement of an adverse judgment is therefore not a
    barrier to appellate jurisdiction in this case.
    Reading between the lines, the dissent appears to be
    concerned that the parties effectively agreed with Judge
    Rogers to manufacture appellate jurisdiction without
    presenting the Rule 19 issue to her for an independent
    12                 WARD V. APPLE, INC.
    decision. But the record simply does not compel the
    conclusion that Judge Rogers did not make an independent
    decision here. The dissent infers from the record that Judge
    Rogers “understood that the Plaintiffs were not asking her to
    rule on the merits of the Rule 19 issue, but rather were
    attempting only to create a vehicle for appellate review of
    Judge Ware’s order . . . .” (emphasis omitted). However, the
    Amended Joint Case Management Statement clearly
    presented the Rule 19 issue as a decision for Judge Rogers to
    make:
    For the sake of efficiency, Plaintiffs have
    proposed submitting to the Court the prior
    briefing on Apple’s Motion to Dismiss
    Plaintiffs’ Consolidated Complaint in the
    related case, In re Apple iPhone Antitrust
    Litigation . . . . Should the Court decide to
    issue the same ruling in this case . . . .
    Plaintiffs will stand on their existing
    complaint and not add ATTM as a party.
    Therefore any such dismissal will become
    final and immediately appealable to the Ninth
    Circuit Court of Appeals.
    At the subsequent case management conference, Judge
    Rogers stated:
    [I]t sounds like the issues that you’re asking
    me to decide on both sides have already been
    decided, so I don’t know why we’re going
    through this process again. I don’t know why
    we have another complaint that doesn’t
    include as a defendant AT&T, which . . .
    WARD V. APPLE, INC.                            13
    Judge Ware told you you needed to have as a
    . . . party to the litigation.
    The dissent interprets these comments to mean that Judge
    Rogers was “confused” initially about the “unusual
    procedure” proposed by the parties. But Judge Rogers’s
    comments could also be interpreted to mean that she had
    analyzed the issue and was inclined to issue the same ruling
    as Judge Ware. In deciding whether to dismiss the case,
    Judge Rogers had the benefit of the Apple II briefing. By
    signing the order dismissing the case with prejudice “for the
    reasons set forth in Judge Ware’s July 12, 2012 Order,” Judge
    Rogers issued a final decision on the merits. This was
    sufficient to give us appellate jurisdiction to review the
    decision.1
    In sum, because we find that the judgment below was the
    product of a final decision of the district court and was
    adverse to the Plaintiffs, we are satisfied that we have
    statutory jurisdiction.
    We review the district court’s decision to dismiss for
    failure to join an indispensable party for abuse of discretion.
    Dawavendewa v. Salt River Project Agric. Improvement &
    Power Dist., 
    276 F.3d 1150
    , 1154 (9th Cir. 2002). However,
    “[t]o the extent that the district court’s determination whether
    a party’s interest is impaired involves a question of law, we
    1
    As for the dissent’s conclusion that the Plaintiffs waived the Rule 19
    issue by “inviting Judge Rogers to adopt the very analysis that they now
    allege on appeal was erroneous,” we note that Apple has not asserted a
    waiver argument. See United States v. Scott, 
    705 F.3d 410
    , 415 (9th Cir.
    2012) (“A party who fails to assert a waiver argument forfeits—and
    therefore implicitly waives—that argument.”).
    14                  WARD V. APPLE, INC.
    review de novo.” 
    Id.
     (quoting Pit River Home & Agric.
    Coop. Ass’n v. United States, 
    30 F.3d 1088
    , 1098 (9th Cir.
    1994)).
    DISCUSSION
    The Plaintiffs argue, on several grounds, that the district
    court abused its discretion in finding that ATTM was a
    necessary party under Rule 19. The Plaintiffs contend that
    the district court’s decision runs counter to the general rule
    that joint tortfeasors need not be joined in one action. The
    Plaintiffs also assert that Apple has not shown that ATTM
    claims any interest in this action because ATTM has stated
    that it would seek to compel arbitration if joined, and because
    ATTM has no contracts with Apple that might be affected by
    this litigation. The Plaintiffs further argue that, even if
    ATTM has claimed an interest in this action, Apple has not
    shown that ATTM’s interests are “legally protected,” or that
    they may be impaired by resolution of this action in ATTM’s
    absence. Therefore, the Plaintiffs contend, it was error for the
    district court to find that ATTM was a necessary party based
    on its alleged role in the conspiracy without first specifying
    which legally protected interests ATTM had in the action.
    We address these arguments in turn.
    I. Joinder of Joint Tortfeasors under Rule 19
    Under Rule 19, a “required party” must be joined as a
    party in an action if doing so is “feasible.” Fed. R. Civ. P. 19.
    Rule 19(a)(1) defines “required party,” and establishes two
    broad categories of required parties. First, under Rule
    19(a)(1)(A), a party is required if “in that person’s absence,
    the court cannot accord complete relief among existing
    WARD V. APPLE, INC.                       15
    parties.” Second, under Rule 19(a)(1)(B), a party is required
    if:
    that person claims an interest relating to the
    subject of the action and is so situated that
    disposing of the action in the person’s absence
    may: (i) as a practical matter impair or impede
    the person’s ability to protect the interest; or
    (ii) leave an existing party subject to a
    substantial risk of incurring double, multiple,
    or otherwise inconsistent obligations because
    of the interest.
    According to Rule 19's text, two conditions must be
    satisfied for a party to qualify as a “required party” under
    Rule 19(a)(1)(B). First, the party must “claim[] an interest
    relating to the subject of the action.” Fed. R. Civ. P.
    19(a)(1)(B). Second, the party must be “so situated that
    disposing of the action in the person’s absence” may have one
    of the two consequences enumerated in Rule 19(a)(1)(B)(i)
    and (a)(1)(B)(ii). There must either be a possibility that
    disposing of the action in the person’s absence will “as a
    practical matter impair or impede the person’s ability to
    protect the interest,” or a possibility that doing so will “leave
    an existing party subject to a substantial risk of incurring
    double, multiple, or otherwise inconsistent obligations
    because of the interest.”
    The Plaintiffs argue that the district court’s decision runs
    counter to the longstanding principle that joint tortfeasors
    need not be joined in one action. For the reasons that follow,
    we conclude that although the allegation that an entity is a
    joint tortfeasor with the defendant does not mean the entity
    must be joined in one action under Rule 19(a)(1)(A), there
    16                  WARD V. APPLE, INC.
    may be circumstances in which an alleged joint tortfeasor has
    particular interests that cannot be protected in a legal action
    unless it is joined under Rule 19(a)(1)(B). We therefore need
    to analyze the facts of this case to determine whether ATTM
    is a required party in this action under Rule 19(a)(1)(B).
    “It has long been the rule that it is not necessary for all
    joint tortfeasors to be named as defendants in a single
    lawsuit.” Temple v. Synthes Corp., 
    498 U.S. 5
    , 7 (1990) (per
    curiam); see also Fed. R. Civ. P. 19 advisory committee’s
    note to 1966 amend. (noting that “a tortfeasor with the usual
    ‘joint-and-several’ liability is merely a permissive party to an
    action against another with like liability”). Antitrust
    conspirators are liable for the acts of their co-conspirators.
    United States v. Socony-Vacuum Oil Co., 
    310 U.S. 150
    ,
    253–54 (1940); Beltz Travel Serv., Inc. v. Int’l Air Transp.
    Ass’n, 
    620 F.2d 1360
    , 1367 (9th Cir. 1980). It therefore
    follows that a plaintiff is “not required to sue all of the
    alleged conspirators inasmuch as antitrust coconspirators are
    jointly and severally liable for all damages caused by the
    conspiracy.” William Inglis & Sons Baking Co. v. ITT Cont’l
    Baking Co., Inc., 
    668 F.2d 1014
    , 1053 (9th Cir. 1982); see
    also Lawlor v. Nat’l Screen Serv. Corp., 
    349 U.S. 322
    , 330
    (1955) (holding that joinder of alleged antitrust co-
    conspirators was not mandatory “since as joint tort-feasors
    they were not indispensable parties”); Georgia v. Penn. R.R.,
    
    324 U.S. 439
    , 463 (1945) (“In a suit to enjoin a conspiracy
    not all the conspirators are necessary parties . . . .”).
    For this reason, an absent antitrust co-conspirator
    generally will not be a required party under Rule 19(a)(1)(A),
    which applies only when a party’s absence prevents the court
    from “accord[ing] complete relief among existing parties.”
    This case, for example, illustrates why according complete
    WARD V. APPLE, INC.                       17
    relief will usually be possible without joining an absent co-
    conspirator like ATTM. If the Plaintiffs prevail, they will be
    able to recover all of their damages from Apple alone, see
    Socony-Vacuum, 
    310 U.S. at
    253–54, without naming ATTM
    as a party. Accordingly, ATTM is not a required party under
    Rule 19(a)(1)(A).
    It does not follow, however, that an absent antitrust co-
    conspirator like ATTM cannot be a required party under Rule
    19(a)(1)(B)(i), the purpose of which is to protect the interests
    of absent parties. Stated differently, an absent party’s role as
    a joint tortfeasor does not preclude it from having an interest
    in the action that warrants protection. See Home Buyers
    Warranty Corp. v. Hanna, 
    750 F.3d 427
    , 433–34 (4th Cir.
    2014); Occidental Petroleum Corp. v. Buttes Gas & Oil Co.,
    
    331 F. Supp. 92
    , 105–06 (C.D. Cal. 1971) (acknowledging
    the general rule that “antitrust co-conspirators need not be
    joined,” but observing that “[i]n the present case, [the co-
    conspirator’s] status as a joint tortfeasor would not as a
    practical matter negate its status as a contractual party, with
    interests that are covered by Rule 19(a)”), aff’d, 
    461 F.2d 1261
     (9th Cir. 1972) (per curiam). It is true that ATTM does
    not face any damages exposure in this action. But our cases
    have made it clear that, under some circumstances, the
    equitable relief sought in an action may make an absent party
    required under Rule 19(a)(1)(B)(i). See, e.g., Wilbur v.
    Locke, 
    423 F.3d 1101
    , 1111–14 (9th Cir. 2005) (holding that
    an Indian tribe was a necessary party to a suit seeking to
    invalidate a contract to which it was a party), abrogated on
    other grounds by Levin v. Commerce Energy, Inc., 
    560 U.S. 413
     (2010); Manybeads v. United States, 
    209 F.3d 1164
    , 1166
    (9th Cir. 2000); Northrop Corp. v. McDonnell Douglas Corp.,
    
    705 F.2d 1030
    , 1044 (9th Cir. 1983) (“[A]ll parties who may
    be affected by a suit to set aside a contract must be present.”).
    18                  WARD V. APPLE, INC.
    For this reason, ATTM’s role as an antitrust co-conspirator is
    not alone dispositive of whether it has interests that warrant
    protection under Rule 19(a)(1)(B)(i). Therefore, we must
    analyze the particular facts here to determine whether ATTM
    is a required party under Rule 19(a)(1)(B).
    II. The District Court Erred by Failing to Specify the
    Interests ATTM Claimed
    The Plaintiffs next contend that the district court erred by
    holding that ATTM was a required party without specifically
    identifying ATTM’s interests or addressing how those
    interests might be impaired if the action were resolved in its
    absence. We agree, and conclude that the district court
    abused its discretion by failing to identify ATTM’s interests
    in this action, or address how those interests, if any, might be
    impaired if this action were resolved in its absence, as
    required by Rule 19(a)(1)(B).
    As with any Rule 19(a)(1)(B) case, deciding whether an
    absent joint tortfeasor is a required party requires identifying
    the specific interest the absent party claims and determining
    whether the party’s ability to protect that interest may be
    impaired despite the fact that it has not been named as a party
    in the action. Compare Wilbur, 
    423 F.3d at
    1111–14 (holding
    that an absent Indian tribe was a required party in an action to
    invalidate a contract between the state and the tribe, and
    finding that the state could not adequately protect the tribe’s
    interests in the litigation), with Cachil Dehe Band of Wintun
    Indians of the Colusa Indian Cmty. v. California, 
    547 F.3d 962
    , 970–72 (9th Cir. 2008) (holding that absent Indian tribes
    were not required parties in an action asserting that the state
    breached a tribal-gaming compact, in part because the absent
    tribes’ interest did not “arise[] from terms in bargained
    WARD V. APPLE, INC.                       19
    contracts” (quoting Am. Greyhound Racing, Inc. v. Hull,
    
    305 F.3d 1015
    , 1023 (9th Cir. 2002))).
    We cannot discern whether the district court in Apple II
    applied the requirements of Rule 19(a)(1)(B) when it
    determined that ATTM was a required party. The court did
    not identify any specific interest ATTM claimed in the action
    or explain how ATTM’s ability to protect that interest might
    be impaired by resolution of the action in its absence.
    Instead, the district court held that “if a plaintiff’s antitrust
    claims require a court to evaluate the conduct of an absent
    party that is alleged to be an antitrust co-conspirator with a
    defendant, thereby substantially implicating [the] interests of
    that party, the absent party is necessary pursuant to Rule
    19(a).” In re Apple iPhone Antitrust Litig., 
    874 F. Supp. 2d 889
    , 899 (N.D. Cal. 2012) (alteration in original) (internal
    quotation marks omitted). The court reasoned that it would
    be “required to evaluate ATTM’s conduct,” and that “[s]uch
    an evaluation . . . would necessarily implicate the interests of
    ATTM, which means that ATTM is a necessary party
    pursuant to Rule 19(a).” 
    Id.
     at 900 (citing Laker Airways,
    Inc. v. British Airways, PLC, 
    182 F.3d 843
    , 847–48 (11th Cir.
    1999)). Thus, the court concluded, “because the alleged
    conspiracy is with ATTM to monopolize or attempt to
    monopolize the aftermarket for voice and data services, . . .
    ATTM is a necessary party.” 
    Id. at 901
    .
    However, the fact that the complaint portrayed ATTM as
    the central player in the alleged antitrust conspiracy does not
    demonstrate that ATTM is a required party. Instead, whether
    ATTM is a required party depends on whether ATTM’s
    interests qualify for protection under Rule 19(a)(1)(B)(i). In
    many cases, an absent antitrust co-conspirator will not have
    interests that warrant protection under Rule 19(a)(1)(B)(i),
    20                   WARD V. APPLE, INC.
    even if it is alleged to have played a central role in the
    conspiracy, and even if resolution of the action will require
    the court to evaluate the absent party’s conduct. Therefore,
    it is essential that courts identify the specific legally protected
    interests an absent joint tortfeasor claims, and assess how
    those interests may be impaired when, as a non-party, the
    outcome of the action will not bind the absent party in future
    proceedings. See Blonder-Tongue Labs., Inc. v. Univ. of Ill.
    Found., 
    402 U.S. 313
    , 329 (1971). The district court abused
    its discretion by failing to undertake this inquiry.
    III.      Whether the Record Supports a Finding That
    ATTM Is a Required Party
    Apple contends that, notwithstanding the district court’s
    failure to specifically enumerate ATTM’s interests, the record
    supports a finding that ATTM is a required party under Rule
    19(a)(1)(B). For the reasons that follow, we conclude that the
    record does not disclose whether ATTM had an interest in
    this action that was entitled to protection under Rule 19.
    A. Whether ATTM Claims an Interest
    The Plaintiffs contend that ATTM is not a required party
    because it has not asserted any interest in this action. In
    Bowen v. United States, 
    172 F.3d 682
     (9th Cir. 1999), we
    observed that “[j]oinder is ‘contingent . . . upon an initial
    requirement that the absent party claim a legally protected
    interest relating to the subject matter of the action,” 
    id. at 689
    (quoting Northrop Corp. v. McDonnell Douglas Corp.,
    
    705 F.2d 1030
    , 1043 (9th Cir.1983)). As evidence that
    ATTM has claimed an interest in this action, Apple cites a
    declaration from ATTM’s counsel from Apple I, filed in
    WARD V. APPLE, INC.                           21
    support of Apple’s motion in Apple II.2 The declaration
    states: “ATTM is aware of this litigation” and “ATTM has an
    interest in these claims . . . .” The declaration does not
    indicate whether ATTM’s counsel from Apple I was
    authorized to state ATTM’s position in Apple II or Apple III.
    Therefore, it is not perfectly clear whether ATTM has, in fact,
    asserted an interest in this action.
    We need not resolve whether the declaration satisfies
    Bowen’s requirement that ATTM claim an interest. Even if
    we assume that ATTM’s attorney from Apple I was
    authorized to assert ATTM’s interests in this litigation, Apple
    has not shown that the interests ATTM has purportedly
    claimed are legally protected under Rule 19.
    B. Whether There is Record Evidence that ATTM
    Has Legally Protectable Interests under Rule 19
    We turn now to Apple’s contention that ATTM has a
    number of interests in this action that, assuming they were
    claimed by ATTM, qualify for protection under Rule
    19(a)(1)(B).
    We have consistently held that only “legally protected”
    interests warrant protection under Rule 19. See, e.g., Cachil
    Dehe Band, 
    547 F.3d at 970
     (observing that a “crucial
    premise of mandatory joinder . . . is that the absent [party]
    2
    This declaration was again submitted in support of Apple’s motion to
    dismiss in Apple III, and the parties stipulated that it referred to the
    complaint in Apple III. Specifically, the parties stipulated that the
    “supporting documents submitted by Apple in [Apple II] . . . shall be
    deemed to refer to the Ward complaint and are properly before the Court
    in connection with Apple’s motion to dismiss the Ward complaint.”
    22                   WARD V. APPLE, INC.
    possess[es] an interest in the pending litigation that is ‘legally
    protected’”); Wilbur, 
    423 F.3d at 1112
    . We have offered
    little guidance regarding which interests warrant legal
    protection under Rule 19. We have clarified that “the interest
    at stake need not be ‘property in the sense of the due process
    clause.’” Cachil Dehe Band, 
    547 F.3d at 970
     (quoting Am.
    Greyhound Racing, 
    305 F.3d at 1023
    ). And we have required
    that the interest “be more than a financial stake, and more
    than speculation about a future event.” 
    Id.
     (internal quotation
    marks omitted). “Within the wide boundaries set by these
    general principles, we have emphasized the ‘practical’ and
    ‘fact-specific’ nature of the inquiry.” 
    Id.
    Apple has cited several interests of ATTM it contends
    qualify as cognizable interests under Rule 19. Apple first
    contends that ATTM faces a risk of collateral consequences
    as a result of this litigation, including a risk of regulatory
    scrutiny and harms to its reputation. Apple also contends that
    ATTM has a number of contractual rights that may be
    impaired if this action is resolved in its absence.
    1. Risk of Regulatory Scrutiny
    We have not had occasion to decide whether the risk that
    an action will trigger regulatory scrutiny may give an absent
    antitrust co-conspirator a legally protected interest under Rule
    19(a). Without deciding whether such a risk might give an
    absent party an interest under different circumstances, we
    hold that Apple has not shown that the risk of regulatory
    scrutiny ATTM faces as a result of this action gives ATTM
    a legally protected interest.
    Apple relies heavily on the Eleventh Circuit’s decision in
    Laker Airways, Inc. v. British Airways PLC, 
    182 F.3d 843
    WARD V. APPLE, INC.                       23
    (11th Cir. 1999). In Laker Airways, the court considered
    whether a private corporation appointed by the government
    of the United Kingdom to coordinate airlines’ requests for
    landing and take-off times was a necessary party to an action
    alleging that the corporation conspired with an airline to
    monopolize the market for passenger air service between two
    cities. 
    Id. at 845
    . The Eleventh Circuit held that the district
    court had not abused its discretion when it found that the
    coordinating corporation was a required party under Rule
    19(a). 
    Id.
    In finding that the specific circumstances of the case
    made the corporation’s interests “more significant than those
    of a routine joint tortfeasor,” 
    id.
     at 847–48, the court cited the
    regulatory scrutiny the corporation could face as a result of
    the litigation. Under the regulations of the United Kingdom,
    the coordinating corporation was required to be
    “independent,” and was to act in a “neutral, non-
    discriminatory and transparent way.” 
    Id. at 846
    . United
    Kingdom law further provided that the corporation’s
    appointment as coordinator would be withdrawn if the
    corporation failed to act in an independent manner. 
    Id.
     The
    court reasoned:
    [i]n order to prove its antitrust claims, [the
    plaintiff] would be required to show that [the
    defendant] acted in other “than an
    independent manner.” Such a ruling would
    surely implicate the interests of [the absent
    corporation] because the United Kingdom’s
    enabling legislation . . . requires that the
    24                  WARD V. APPLE, INC.
    Secretary of State for Transport withdraw its
    approval of an appointed coordinator if its
    behavior is not neutral.
    
    Id. at 848
    .
    Laker Airways is inapposite. There the relevant agency
    was affirmatively required to withdraw approval of the absent
    coordinator if its behavior was not neutral. See 
    id.
     By
    contrast, there is no suggestion in this case that the collateral
    regulatory consequences ATTM might face as a result of this
    action would be any more severe, or likely to occur, than in
    a typical case alleging an antitrust conspiracy. If the vague
    risk of increased regulatory scrutiny in this case made ATTM
    a required party, absent antitrust co-conspirators would,
    almost always, be required parties in a broad range of
    antitrust cases. Such a result would eviscerate the general
    rule that absent antitrust co-conspirators need not be joined in
    one action. See Lawlor, 
    349 U.S. at 329
    ; Georgia v. Penn.
    R.R., 
    324 U.S. at 463
    . Moreover, we have been reluctant to
    recognize legally protected interests based solely on
    “[s]peculation about the occurrence of a future event.” See
    Northrop Corp. v. McDonnell Douglas Corp., 
    705 F.2d 1030
    ,
    1046 (9th Cir. 1983) (“Speculation about the occurrence of a
    future event ordinarily does not render all parties potentially
    affected by that future event necessary or indispensable
    parties under Rule 19.”); Cachil Dehe Band, 
    547 F.3d at 973
    (holding that absent Indian tribes’ opportunity to obtain
    licenses under gaming compact was not a legally protected
    interest where the “likelihood of obtaining future licenses
    [was] attenuated”). In the absence of any evidence that law-
    enforcement or regulatory agencies are presently scrutinizing
    the Exclusivity Agreement, we decline to speculate whether
    the outcome of this case will impact agencies’ enforcement
    WARD V. APPLE, INC.                      25
    decisions. For these reasons, we find that Apple has not
    demonstrated that the risk of regulatory scrutiny gives ATTM
    a legally protected interest in this action.
    2. Reputational Interests
    Apple next argues that ATTM is a required party because
    this action may affect ATTM’s business or reputational
    interests. This argument is similarly without merit.
    We are aware of no cases holding that a joint tortfeasor’s
    reputational interests alone may make it a required party
    under Rule 19(a). A joint tortfeasor’s reputation generally
    will be adversely impacted in any case accusing it of
    wrongdoing. For this reason, recognizing a protected interest
    in business reputation would significantly erode the general
    rule that a plaintiff need not join all joint tortfeasors in one
    action. Recognizing such an interest would also conflict with
    our precedents holding that a protected interest under Rule 19
    “must be more than a financial stake,” Cachil Dehe Band,
    
    547 F.3d at 970
     (quoting Makah, 910 F.2d at 558). We
    conclude that ATTM’s reputational interests in this action are
    not legally protected under Rule 19.
    3. Contract Interests
    Apple also asserts that ATTM’s contract rights give it a
    legally protected interest in this action. For the reasons that
    follow, we find that Apple has not demonstrated that ATTM
    currently has any substantial contract rights that may be
    impaired by resolution of this action.
    Under some circumstances, an absent party’s contract
    rights may give it a legally protected interest in an action.
    26                   WARD V. APPLE, INC.
    See, e.g., Wilbur, 
    423 F.3d 1101
    ; Am. Greyhound Racing, Inc.
    v. Hull, 
    305 F.3d 1015
    , 1022–24 (9th Cir. 2002); Manybeads
    v. United States, 
    209 F.3d 1164
    , 1166 (9th Cir. 2000). For
    instance, it is well established that all parties to a contract are
    necessary in an action to set aside the contract. See Wilbur,
    
    423 F.3d at
    1113 (citing cases). Our cases also establish that
    an absent party may be required in an action seeking
    equitable relief that would prevent a defendant from fulfilling
    “substantial” contractual obligations to the absent party. See
    Am. Greyhound Racing, 
    305 F.3d at 1023
     (holding that absent
    Indian tribes were necessary parties where “the interest of the
    tribes arises from terms in bargained contracts, and the
    interest is substantial”); Cachil Dehe Band, 
    547 F.3d at 970
    (interpreting American Greyhound Racing, Inc. v. Hull to
    “require[]” that the interest arising from terms in bargained
    contracts be “substantial” to be legally protected). Cf.
    Wilbur, 
    423 F.3d at 1113
     (“[I]t is a fundamental principle that
    a party to a contract is necessary, and if not susceptible to
    joinder, indispensable to litigation seeking to decimate that
    contract.” (internal quotation marks omitted)). We have not,
    however, held that an absent party is always required when
    the relief sought in an action merely implicates an absent
    party’s contract rights. See Cachil Dehe Band, 
    547 F.3d at 970
     (“[A]n interest that ‘arises from terms in bargained
    contracts’ may be protected . . . .” (emphasis added)).
    Apple cites three contract interests of ATTM it contends
    may be impaired if the action is resolved in ATTM’s absence:
    (1) ATTM’s right to control unlock codes; (2) rights arising
    from ATTM’s Wireless Service Agreement (WSA) with
    customers; and (3) ATTM’s arbitration provisions in the
    WSA.
    WARD V. APPLE, INC.                     27
    a. Right to Control Unlock Codes
    The Plaintiffs seek a judgment “[o]rdering Apple to
    provide the unlock code upon request to all members of the
    Class . . . .” Apple contends that this injunctive relief would
    conflict with ATTM’s purported contractual right to prevent
    Apple from unlocking ATTM customers’ iPhones. As a
    threshold matter, we must determine whether the record
    supports a finding that ATTM currently has such a right. The
    only possible sources of this right in the record are brief
    excerpts of agreements between Apple and ATTM from 2006
    and 2011, and the right is not embodied therein.
    We begin with the excerpt from the 2006 agreement. The
    limited excerpt in the record clearly states that any right of
    ATTM to control unlock codes was only to last during the
    “Term and the Wind-Down Period.” As Apple’s counsel
    conceded at oral argument, there is nothing in the record
    defining the term or wind-down period. Without a definition
    of the term or wind-down period, we cannot determine
    whether ATTM still has the right Apple claims it has. We
    therefore find that the excerpt of the 2006 agreement does not
    demonstrate that ATTM has any existing right to control
    unlock codes.
    We next turn to the excerpt of the 2011 agreement. The
    first clause of this excerpt appears to condition Apple’s
    obligation not to unlock iPhones on its use of a SIM solution
    not offered by AT&T’s SIM suppliers. There is no evidence
    in the record that Apple ever employed such a solution. In
    the absence of such evidence, we cannot determine whether
    ATTM currently has a right to control unlock codes, and
    cannot find that injunctive relief ordering Apple to disclose
    28                      WARD V. APPLE, INC.
    unlock codes would impair ATTM’s rights under its contracts
    with Apple.3
    b. Interests Arising from Wireless Service
    Agreements with Customers
    Apple next contends that “the District Court will . . .
    inevitably have to interpret the terms of ATTM’s WSA with
    consumers, in ways that could affect and impair ATTM’s
    rights under that contract.” We reject this argument.
    The district court’s decision in Apple II undercuts Apple’s
    contention that interpretation of ATTM’s WSA is
    “inevitable.” The district court explicitly noted that “[the]
    Plaintiffs have not contended that any of their claims arise
    from ATTM service contracts,” 874 F. Supp. 2d at 899, and
    declined to “reach the question of whether [the] Plaintiffs
    must rely upon the WSA to advance any or all of their
    claims,” id. at n.21.
    Moreover, even if the district court ultimately interprets
    these WSAs, ATTM, as a non-party, will not be bound by the
    district court’s interpretation in subsequent proceedings. See
    Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 
    402 U.S. 313
    , 329 (1971) (“Some litigants—those who never appeared
    in a prior action—may not be collaterally estopped without
    litigating the issue. They have never had a chance to present
    their evidence and arguments on the claim. Due process
    3
    Even if ATTM has some lingering contract interests, it may be
    appropriate for the district court to exercise its discretion to fashion the
    equitable relief in a way that avoids interfering with those interests,
    instead of dismissing the entire action. See Occidental Petroleum Corp.
    v. Buttes Gas & Oil Co., 
    331 F. Supp. 92
    , 105–06 (C.D. Cal. 1971).
    WARD V. APPLE, INC.                      29
    prohibits estopping them despite one or more existing
    adjudications of the identical issue which stand squarely
    against their position.”).
    Lastly, we note that there is no copy of ATTM’s WSA in
    the record. It is therefore unclear what rights ATTM had
    under the WSA that might be affected by this action. Nor is
    there any evidence in the record suggesting that class
    members are still bound by the WSAs they signed during the
    class period. The complaint seeks certification of a class of
    consumers who “purchased wireless voice and data services
    for the iPhone from October 19, 2008, through February 3,
    2011.” It is plausible that, more than four years after the last
    WSA in the class period was signed, many class members
    have entered into new WSAs with ATTM or other carriers.
    In sum, the record does not disclose whether ATTM’s
    WSAs with customers give it a legally protected interest in
    this action.
    c. ATTM’s Arbitration Agreement
    Apple also contends that ATTM has an interest in this
    action because the district court will have to construe the
    arbitration provisions in the WSA. This argument is likewise
    without merit.
    As long as ATTM is not a party, any construction of the
    arbitration clause will likely focus on whether Apple may use
    ATTM’s arbitration clause for Apple’s benefit. See 874 F.
    Supp. 2d at 898–99 (holding that Apple, as a non-signatory to
    the arbitration agreement, did not satisfy the requirements to
    invoke the doctrine of equitable estoppel, and declining to
    compel the plaintiffs to arbitrate their claims against Apple).
    30                  WARD V. APPLE, INC.
    ATTM does not have a legally protected interest in whether
    Apple may compel arbitration. Nor will the district court’s
    construction of the arbitration clause bind ATTM, a non-
    party, in future actions. See Blonder-Tongue, 
    402 U.S. at 329
    .
    For the above reasons, we hold that Apple has not
    demonstrated that ATTM has a legally protected interest in
    this action.
    IV.     Motion to Dismiss for Failure to State a Claim
    Apple also contends that dismissal is appropriate because
    the Plaintiffs have failed to adequately plead a claim that
    ATTM had monopoly power in a relevant market. We
    decline to decide this issue.
    The parties stipulated that the district court could enter an
    order dismissing the case with prejudice for failure to join a
    necessary party. The district court entered the parties’
    stipulated order “grant[ing], with prejudice, Apple’s motion
    to dismiss [the] Plaintiffs’ Complaint pursuant to Rule
    12(b)(7) of the Federal Rules of Civil Procedure.” The
    stipulated order did not address Apple’s Rule 12(b)(6)
    argument, or even acknowledge that Apple sought dismissal
    in Apple III on this ground. Because the district court in
    Apple III has not ruled on Apple’s Rule 12(b)(6) motion, we
    decline to consider whether the Plaintiffs’ complaint pleads
    a claim.
    WARD V. APPLE, INC.                      31
    CONCLUSION
    For the above reasons, we reverse the judgment of the
    district court, and remand to the district court for further
    proceedings.
    REVERSED AND REMANDED.
    WALLACE, Circuit Judge, dissenting:
    I respectfully dissent. I would not reach the merits of this
    appeal because, in my view, 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 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
    32                  WARD V. APPLE, INC.
    failed to claim an interest in the litigation, and that any
    claimed interest was not “cognizable” under Rule 19. Instead
    of addressing those arguments, Judge Ware’s order relied
    heavily on the Eleventh Circuit’s Laker Airways case in
    holding that ATTM was a necessary party under Rule 19
    because “the Court will be required to evaluate ATTM’s
    conduct.”
    The Apple II Plaintiffs disagreed with Judge Ware’s Rule
    19 order. They wanted to appeal from it. But given the
    interlocutory nature of Judge Ware’s ruling, they were
    required to wait for a final judgment. The Apple II Plaintiffs
    did not want to wait, however. In fact, waiting would have
    been pointless because the Apple II Plaintiffs’ entire litigation
    hinged on whether ATTM was a necessary party: if ATTM
    was required to be joined as a necessary party, individual
    arbitration was almost inevitable; but if ATTM was not
    required to be joined, Plaintiffs’ case would likely proceed
    through financially feasible class-action litigation. So,
    Plaintiffs needed a way to (1) sever any claims that could
    possibly implicate ATTM (to avoid arbitration), and
    (2) obtain immediate appellate review of Judge Ware’s Rule
    19 analysis for the claims that could implicate ATTM. In the
    words of Plaintiffs’ counsel, “by keeping the [voice and data]
    claims together [with the apps claims], we couldn’t get the
    appellate review of the voice and data dismissal until we
    finish the apps case.”
    Accordingly, Plaintiffs’ counsel devised a strategy: a new
    set of Plaintiffs (Apple III Plaintiffs) would bring a separate
    action (Apple III) to “segregate the voice and data claims into
    Apple III and have only the apps claims left in Apple II.” The
    premise behind creating the new action, rather than appealing
    directly from Judge Ware’s ruling in Apple II, was to enhance
    WARD V. APPLE, INC.                      33
    the Apple II Plaintiffs’ litigation position on appeal. This was
    done by excising from Apple II any claims that arguably
    implicated ATTM’s interests. The Apple III Plaintiffs
    believed that by removing the voice and data claims—which
    arguably implicated ATTM’s wireless service—from Apple
    II, “Apple II [could] now proceed strictly as an apps case
    [without implicating ATTM] and . . . Apple III [could] go
    ahead and be dismissed so that [the Apple III Plaintiffs could]
    take [Judge Ware’s] Rule 19 ruling up to the Ninth Circuit.”
    But the Apple III Plaintiffs encountered a problem with
    this strategy. Because they were not the parties aggrieved by
    Judge Ware’s Apple II order, they could not appeal from it.
    They needed Judge Rogers to issue an adverse ruling against
    them—in Apple III—from which they could appeal. In an
    attempt to obtain such a ruling expeditiously (that is, without
    litigating the issue before Judge Rogers) both parties
    stipulated to import from Apple II all of their respective
    pleadings and motions, and asked Judge Rogers to rule on
    them as if they had been brought in the first instance in Apple
    III. Understandably confused by this rather unusual
    procedure, Judge Rogers told the parties that
    it sounds like the issues that you’re asking me
    to decide . . . have already been decided, so I
    don’t know why we’re going through this
    process again. I don’t know why we have
    another complaint that doesn’t include as a
    defendant [ATTM], which . . . Judge Ware
    told you you needed to have as a . . . party to
    the litigation. And if a judge in these
    [previous] cases has ruled [on that issue] . . .
    34                      WARD V. APPLE, INC.
    then the law says you don’t get a second bite
    at the apple . . . .1
    Counsel for the Apple III Plaintiffs responded that they
    had proceeded in this fashion “to limit . . . the amount of
    work the court has to do, [and] to streamline things.” After
    explaining in detail the procedural history from Apple I and
    Apple II, counsel for the Apple III Plaintiffs told Judge
    Rogers that the point of the new Apple III litigation was to
    “create . . . a device” to achieve appellate review of Judge
    Ware’s interlocutory order. That device, counsel explained,
    was a stipulation to dismiss the Apple III Plaintiffs’ claims
    with prejudice, but based on Judge Ware’s reasoning from the
    prior case, without having Judge Rogers make that
    determination anew as applied to them. In other words,
    Plaintiffs’ counsel said that the Apple III Plaintiffs were
    “willing to stipulate with Apple . . . that the complaint ought
    to be dismissed based on Judge Ware’s . . . ruling in Apple II”
    because they assumed “the court would issue the same ruling
    it issued last time, which is that [ATTM] is a necessary and
    indispensable party in Apple III.”
    1
    The majority apparently believes these particular comments do not
    show that Judge Rogers was confused about why Plaintiffs were bringing
    these issues again after Judge Ware had already ruled on them
    (demonstrating a concern about claim and issue preclusion). The majority
    thinks they “could also be interpreted to mean that she had analyzed the
    issue and was inclined to issue the same ruling as Judge Ware.” With due
    respect, nothing in these statements can plausibly be construed as
    indicating that Judge Rogers had at this point deliberately analyzed the
    Rule 19 issue, and they certainly cannot be construed as her inclination to
    “issue the same ruling as Judge Ware.” Although our jurisdiction does not
    depend on what is said in the give-and-take between counsel and judge at
    an oral hearing, the transcript in this case, as will become apparent below,
    strongly suggests that Judge Rogers never in fact made an independent
    decision on the Rule 19 issue.
    WARD V. APPLE, INC.                      35
    Once Judge Rogers understood that the Plaintiffs were not
    asking her to rule on the merits of the Rule 19 issue, but
    rather were attempting only to create a vehicle for appellate
    review of Judge Ware’s order, Judge Rogers directed the
    parties to “come up with a plan” and to submit a stipulation
    that they believed would achieve their goals. Counsel for the
    Apple III Plaintiffs asked Judge Rogers if she would “prefer
    a form of order that essentially grants the 12(b)(7) motion,”
    but Judge Rogers, having earlier emphasized that the court
    was “overwhelmed right now” and that she was “not
    interested in doing busy work,” said that “[i]f the two of you
    can work it out so that you both have what you need in the
    record and all you really need is my signature,” “I would like
    to just (indicating) . . . stamp something.” She concluded,
    “unless there’s some dispute . . . then I don’t need to be
    involved, [except] to just put my signature.”
    The Apple III Plaintiffs later submitted a joint stipulation
    to dismiss their claims under Rule 19 “[f]or the reasons set
    forth in Judge Ware’s . . . Order” from Apple II. Judge
    Rogers—as she had promised—then signed the proposed
    order granting the dismissal “PURSUANT TO THE
    PARTIES’ STIPULATION,” and “for the reasons set forth in
    Judge Ware’s . . . Order.” This appeal followed.
    II.
    In my view, Plaintiffs’ stipulation strategy produced a
    “final decision” that fails to invoke our statutory appellate
    jurisdiction because it was not involuntary or adverse to the
    Plaintiffs. We have statutory jurisdiction only over “appeals
    from . . . final decisions of the district courts,” 
    28 U.S.C. § 1291
    , that are both involuntary and adverse to the appellant.
    See Seidman v. City of Beverly Hills, 
    785 F.2d 1447
    , 1448
    36                  WARD V. APPLE, INC.
    (9th Cir. 1986); Unioil, Inc. v. E.F. Hutton & Co., 
    809 F.2d 548
    , 555 (9th Cir. 1986) (“To be appealable, an order must be
    adverse to the appealing party. As a general rule, a plaintiff
    may not appeal a voluntary dismissal because it is not an
    involuntary adverse judgement against him.”), abrogated on
    other grounds by Townsend v. Holman Consulting Corp.,
    
    929 F.2d 1358
     (9th Cir. 1990) (en banc).
    We recently stated in Berger v. Home Depot USA, Inc.,
    
    741 F.3d 1061
    , 1065 (9th Cir. 2014), that “absent a
    settlement, a stipulation alone does not destroy th[e]
    adversity” required for appellate jurisdiction. 
    Id. at 1065
    . See
    also Concha v. London, 
    62 F.3d 1493
    , 1507 (9th Cir. 1995).
    Relying on Berger and Concha, the majority concludes that
    the parties’ stipulation to dismiss their claims produced a
    sufficiently “adverse” judgment because it was not “pursuant
    to a settlement,” and was “plainly adverse to the Plaintiffs’
    interests.”
    Berger is inapposite, however, because it presupposes
    procedural facts that do not exist in the present case. Berger
    involved a single action in which a party argued its case to
    one judge, the judge considered the argument and ruled
    against that party, and then the two opposing parties
    stipulated to dismissal for the sole purpose of obtaining a
    final appealable judgment. Berger governs that type of case,
    in which an involuntary, adverse interlocutory ruling merges
    into a final appealable judgment, see Balla v. Idaho State Bd.
    Of Corr., 
    869 F.2d 461
    , 468 (9th Cir. 1989), which is then
    entered pursuant to a stipulation. For example, had the Apple
    II Plaintiffs stipulated to dismissal in their case, in order to
    achieve a final appealable ruling, that stipulation would have
    fallen squarely within Berger’s holding, and there would be
    no “adverseness” problem. But this case—Apple III—is
    WARD V. APPLE, INC.                        37
    different. Here, there was never an involuntary, adverse
    ruling against the Apple III Plaintiffs because they asked
    Judge Rogers to adopt Judge Ware’s reasoning against them.
    See Apple III Dkt. (4:12-cv-05404) No. 24, p. 10–11
    (Plaintiffs’ counsel arguing to Judge Rogers that “the
    complaint [in Apple III] ought to be dismissed based on Judge
    Ware’s . . . ruling in Apple II.”).
    Concha is likewise inapposite. Concha says that a
    stipulated final judgment “with prejudice” is adverse to the
    plaintiffs’ interests—i.e., it has “sufficient prejudice in a legal
    sense”—because it “serves to bar his claims forever.” Concha
    v. London, 
    62 F.3d 1493
    , 1507 (9th Cir. 1995). But Concha
    answered in the negative only the question whether a
    voluntary dismissal “without prejudice” would also be
    adverse to the Plaintiffs for purposes of statutory jurisdiction.
    It did not address the question presented in this case: whether
    a final decision of a district judge is involuntary and adverse
    to a party who stipulated to a particular analysis against it,
    and then asked the district judge to order final judgment, in
    order to argue on appeal that such analysis was actually
    incorrect.
    Because the claims and parties in Apple III were different
    from those in Apple II, Judge Ware’s order from Apple II did
    not preclude Judge Rogers from deciding the Rule 19 issue in
    Apple III. Consequently, the Apple III Plaintiffs were required
    to argue their position independently in Apple III and to
    obtain an involuntary and adverse ruling against them in
    order to have an adverse decision from which to appeal. But
    they failed to do so. They said that they assumed Judge
    Rogers “would” rule consistently with Judge Ware, but they
    never in fact argued to Judge Rogers that Judge Ware’s
    analysis in Apple II was wrong, or that she should rule in their
    38                  WARD V. APPLE, INC.
    favor on the Rule 19 issue. Rather, they stipulated that Judge
    Rogers rule against them on the Rule 19 issue for reasons
    with which they ostensibly disagreed.
    No case in our circuit stands for the proposition that a
    non-party to a case can disagree with a judge’s ruling then
    institute a new action, before a new judge, alleging a
    narrower set of claims, in which they urge their judge to
    adopt the prior judge’s analysis, and still have an involuntary
    and adverse ruling required for appellate jurisdiction when
    the new judge signs a stipulated final judgment. No
    adverseness exists in the new action where the issue was
    never actually litigated and no adverse positions were taken
    by the parties.
    That the purpose of Plaintiffs’ strategy was to fast-track
    appellate review does not give us license to dispense with the
    requirement that in every separate action, the parties must
    take adverse positions on an issue and give the judge an
    opportunity to rule independently on their claims. Otherwise,
    parties could manipulate our appellate jurisdiction under the
    guise of efficiency, in order to circumvent the general rule
    that the district court be the first to pass judgment by applying
    a legal rule to a set of claims. Cf. Am. States Ins. Co. v.
    Dastar Corp., 
    318 F.3d 881
    , 885–86 (9th Cir. 2003) (“A
    significant concern in assessing finality is whether the parties
    have attempted to manipulate our appellate jurisdiction. A
    party may not engage in manipulation either to create
    appellate jurisdiction or prevent it.” (citations omitted)).
    In sum, because the final judgment below was not
    involuntary and adverse to the Apple III Plaintiffs, I am
    persuaded that we lack statutory jurisdiction over this appeal.
    WARD V. APPLE, INC.                      39
    III.
    Even if we had statutory jurisdiction, I would conclude
    that the Apple III Plaintiffs waived the Rule 19 issue by
    inviting Judge Rogers to adopt the very analysis that they
    now allege on appeal was erroneous. “‘[O]ne may not
    complain on review of errors below for which he is
    responsible.’” Deland v. Old Republic Life Ins. Co., 
    758 F.2d 1331
    , 1336–37 (9th Cir.1985), quoting Hudson v. Wylie,
    
    242 F.2d 435
    , 448 (9th Cir. 1957). See also Portland Gen.
    Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 
    218 F.3d 1085
    , 1089
    (9th Cir. 2000).
    Although the Apple III Plaintiffs stipulated to incorporate
    both parties’ motions from Apple II, they ultimately drafted
    a stipulation dismissing their claims “for the reasons set forth
    in Judge Ware’s July 11, 2012 Order,” instead of first asking
    Judge Rogers either to revisit Judge Ware’s Rule 19 analysis
    in Apple II, or to perform her own Rule 19 analysis in which
    she could embrace their arguments. In fact, counsel for the
    Apple III Plaintiffs invited Judge Rogers to adopt Judge
    Ware’s alleged error, arguing that “the complaint [in Apple
    III] ought to be dismissed based on Judge Ware’s . . . ruling
    in Apple II.” At bottom, the Apple III Plaintiffs invited Judge
    Rogers to sign on to an analysis from a different case with the
    specific intent to argue on appeal that the analysis was
    erroneous. In doing so, the Apple III Plaintiffs sought
    improperly to skip over the district court to have us decide the
    Rule 19 issue in the first instance. They have thereby waived
    any challenge to the error they invited.
    

Document Info

Docket Number: 12-17805

Citation Numbers: 791 F.3d 1041

Filed Date: 6/29/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

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