In Re Sony PS3 "Other OS" Litigation

Filing 16

*** FILED IN ERROR. REFER TO DOCUMENT 19 . *** MOTION to Relate Case (Civil Local Rule 3-12) filed by Todd Densmore, Antal Herz. (Attachments: # 1 Proposed Order Relating Cases)(Tien, Tracy) (Filed on 5/17/2010) Modified on 5/18/2010 (feriab, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 Rosemary M. Rivas (State Bar No. 209147) rrivas@finkelsteinthompson.com Mark Punzalan (State Bar No. 247599) mpunzalan@finkelsteinthompson.com Tracy Tien (State Bar No. 253930) ttien@finkelsteinthompson.com FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, CA 94104 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 Counsel for Plaintiffs Todd Densmore and Antal Herz [Additional Counsel Listed on Signature Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. CV 10-1811 EMC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANTHONY VENTURA, on behalf of himself and all others similarly situated, Plaintiff, SONY COMPUTER ENTERTAINMENT AMERICA INC., ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (Civil Local Rule 3-12) The Honorable Edward M. Chen This document also relates to: TODD DENSMORE and ANTAL HERZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. SONY COMPUTER ENTERTAINMENT AMERICA, INC., a Delaware corporation, Defendant. Case No. CV 10-1945 EDL The Honorable Elizabeth D. Laporte ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 5, 2010, the case titled Densmore et al v. Sony Computer Entertainment America, Inc. ("Densmore"), CV 10-1945 EDL was filed in the United States District Court for the Northern District of California and assigned to the Honorable Elizabeth D. Laporte. Pursuant to Civil Local Rule 3-12, Plaintiffs Densmore and Herz ("Plaintiffs") submit this motion for the Court to consider whether the Densmore action should be related to the action titled Ventura v. Sony Computer Entertainment America Inc ("Ventura"), CV 10-1811 EMC. Copies of the Densmore and Ventura Complaints are attached as Exhibits 1 and 2 to the accompanying Declaration of Tracy Tien.1 Local Rule 3-12(a) provides that actions are related to another when: "(1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Densmore and Ventura meet the criteria and should be related because they concern substantially the same parties, property, transaction or event. Both cases are class actions brought on behalf of Sony PlayStation 3 ("PS3") owners and allege violations against Defendant Sony Computer Entertainment America Inc. ("Sony") for Sony's unlawful removal of PS3 features that Sony had advertised and consumers had paid for. Both Densmore and Ventura allege that Sony sold PS3 gaming consoles that included an advertised feature, "Install Other OS" feature, which allowed users to install operating systems. See Densmore Compl. 17-18; Ventura Compl. 13. The "Install Other OS" feature allowed users to run web browsers and essentially run programs and operate the PS3 like a computer. 1 On May 14, 2010, Plaintiff Jason Baker in the action, Baker et al v. Sony Computer Entertainment America, LLC, Case No. 10-cv-01897-SC, filed an Administrative Motion to Relate Baker to Ventura Case. Plaintiffs Densmore and Herz are also aware of another related action, Wright v. Sony Computer Entertainment America, Inc. et al, Case No. 10-cv-01975-JL. 1 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Densmore Compl. 17-21, 31-32; Ventura Compl. 14-22. Sony advertised the "Install Other OS" as being an important feature to the PS3. Densmore Compl. 19-24; Ventura Compl. 14-16. On April 1, 2010, Sony released an update, Firmware 3.21. Densmore Compl. 27; Ventura Compl. 24. Users are required to install Firmware 3.21 if they wish to maintain certain functions PS3 functions for which they paid, such as the ability to play Blu-ray discs and play games online. Densmore Compl. 26, 28-29; Ventura Compl. 26-29. Failure to install Firmware 3.21 would cause users to lose PS3 functionality. Id. However, if users do install Firmware 3.21, they lose the "Install Other OS" feature, another paid-for and advertised PS3 function. Densmore Compl. 27-29; Ventura Compl. 23-24. Densmore is brought on behalf "All persons in the United States who purchased a PS3 from November 17, 2006 to March 27, 2010 and continued to own the PS3 on March 27, 2010." Densmore Compl. 33. Ventura is brought on behalf of "all persons who purchased a PS3 during the period November 17, 2006 to March 27, 2010 and who did not resell their PS3 before March 27, 2010." Ventura Compl. 32. Densmore and Ventura both name Sony as the defendant and concern the same property, transaction, and event: namely the PS3 gaming console and Sony's removal of the "Install Other OS" feature via Firmware 3.21. Furthermore, both cases state claims for breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, and violations of the Consumers Legal Remedies Act (Cal. Civ. Code 1750, et seq.) and California Unfair Competition Law (Cal. Bus. and Prof. Code 17200, et seq.). Densmore Compl. 41-51, 5568, 82-87; Ventura Compl. 35-71.2 It appears likely that there will be an unduly burdensome duplication of labor and expense or the possibility of conflicting results if the cases are handled by different judges. Since both cases arise from the same practices by Sony and include similar allegations, the 2 In addition, the Densmore Complaint asserts claims for trespass to chattels, and violation of the Computer Fraud and Abuse Act (18 U.S.C. 1030) and California's False Advertising Law (Cal. Bus. and Prof. Code 17500 et seq.). Densmore Compl. 77-87. 2 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factual and legal issues will overlap. To prevent inconsistent and possibly conflicting rulings, it would be in the interest of judicial efficiency to have the same judge handle both. For the foregoing reasons, Plaintiffs respectfully request this Court relate Densmore and Ventura. Dated: May 17, 2010 FINKELSTEIN THOMPSON LLP /s/ Tracy Tien Tracy H. Tien Rosemary M. Rivas Mark Punzalan 100 Bush St., Suite 1450 San Francisco, California 94104 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 Douglas G. Thompson Mila F. Bartos FINKELSTEIN THOMPSON LLP The Duval Foundry 1050 30th Street, N.W. Washington, DC 20007 Telephone: (202) 337-8000 Facsimile: (202) 337-8090 Counsel for Plaintiffs Todd Densmore and Antal Herz 3 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC