In Re Sony PS3 "Other OS" Litigation

Filing 188

MOTION to Relate Case filed by Sony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. (Ott, Carter) (Filed on 12/27/2011)

1 2 3 4 5 6 7 8 9 LUANNE SACKS, Bar No. 120811 luanne.sacks@dlapiper.com CARTER OTT, Bar No. 221660 carter.ott@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105 Tel: 415.836.2500 Fax: 415.836.2501 JOSEPH COLLINS Appearing Pro Hac Vice joseph.collins@dlapiper.com DLA PIPER LLP (US) 203 North LaSalle Street, Suite 1900 Chicago, IL 60601 Tel: 312.368.4000 Fax: 312.236.7516 10 11 12 Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC and NonParty SONY NETWORK ENTERTAINMENT INTERNATIONAL LLC. 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 IN RE SONY PS3 OTHER OS LITIGATION ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 18 19 (CIVIL LOCAL RULES 3-12 AND 7-11) 20 21 22 23 Case No.: C 10-1811 RS HENRY GARCIA, on behalf of himself, all others similarly situated and the general public, 26 Plaintiff, v. SONY COMPUTER ENTERTAINMENT AMERICA LLC and ACTIVISION BLIZZARD, INC., 27 Case No.: C 11-2246 RS Defendants. 24 25 28 DLA P IPER LLP (US) -1- SAN FRANCISCO ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. C 10-1811 RS WEST\228455805.3 1 I. INTRODUCTION Defendant Sony Computer Entertainment America LLC (“SCEA”) and non-party Sony 2 3 Network Entertainment International LLC (“SNEI”) are named as defendants in a putative class 4 action initiated in this District titled Fineman v. Sony Network Entertainment International LLC, 5 et al., Case No. 11-cv-05680 (“Fineman”). SCEA and SNEI respectfully submit this 6 Administrative Motion to consider whether the Fineman action should be related to the above- 7 captioned matters: In re Sony PS3 Other OS Litigation, Case No. 10-cv-1811-RS (“Other OS”) 8 and Garcia v. Sony Computer Entertainment America, LLC, et al., Case No. 11-cv-02246-RS 9 (“Garcia”), which, good cause appearing, was previously reassigned to the Hon. Richard 10 Seeborg, sua sponte.1 Because the requirements of Local Rule 3-12(a) are satisfied, the Court 11 should relate Fineman to the Other OS and Garcia matters. 12 II. THE CASES ARE RELATED UNDER LOCAL RULE 3-12(a) Pursuant to Local Rule 3-12(a), an action is related to another when: 13 14 (1) The actions concern substantially the same parties, property, transaction or event; and 15 (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. 16 17 18 L.R. 3-12(a). These criteria are clearly satisfied here. The named plaintiff in Fineman seeks to 19 represent a class of PS3 purchasers who accessed the PlayStation®Network (“PSN”), a class that 20 overlaps with the purported class of PS3 purchasers in both Other OS and Garcia. SCEA, a 21 defendant in both Other OS and Garcia, is (with other Sony entities) a defendant in Fineman as 22 well. Thus, all three actions concern substantially the same parties. Each case likewise involves overlapping property (the PS3) and transactions (access to the 23 24 PSN and agreement to associated Terms of Service and User Agreements) and seeks duplicative 25 relief in the form of restitution of part or all of the PS3 purchase price. For example, the plaintiff 26 in Fineman argues that SCEA and other Sony entities improperly precluded PSN access for 27 consumers who did not agree to revised PSN terms of service, while the plaintiffs in Other OS 28 1 DLA P IPER LLP (US) See the Declaration of Carter Ott (“Ott Decl.”), Ex. A, filed herewith. -2- SAN FRANCISCO ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NOS. C 10-1811 RS & C 11-02246 RS WEST\228455805.3 1 argued that SCEA improperly precluded PSN access for consumers who did not agree to a 2 specific PS3 firmware update. The Court addressed the continued availability of PSN access at 3 length in its December 8, 2011 Other OS order; this issue may similarly need to be addressed in 4 Fineman. 5 III. THE COURT MAY RELATE FINEMAN TO THE DISMISSED OTHER OS. The Court recently dismissed the Other OS action with prejudice.2 In the interest of 6 7 conserving judicial resources, the Court may nonetheless relate the Fineman and Other OS cases. 8 Local Rule 3-12(b) specifically anticipates this situation, requiring a motion such as this from any 9 party who “knows or learns that an action, filed in or removed to this district is…related to an 10 action which is or was pending in his District.” L.R. 3-12(b) (emphasis added). 11 This Rule recognizes that the efficiency gains associated with assigning related cases to 12 the same Judge do not depend on the cases pending simultaneously. A Judge assigned to a case 13 related to a previously dismissed matter will be familiar with the overlapping issues whether or 14 not the case providing that familiarity has been resolved. For example, in both Benavides v. 15 Bush, 2008 WL 170431 (N.D. Cal. Jan. 18, 2008) and Goodman Ball, Inc. v. Mach II Aviation, 16 Inc., 2010 WL 4807090 (N.D. Cal. Nov. 19, 2010), newly-filed cases were related to matters that 17 had been previously dismissed. Benavides at *1 (relating cases where plaintiff previously sued 18 the same defendant in a dismissed matter); Goodman Ball at *3 (relating cases despite the 19 addition of defendants not parties to previously dismissed matter). 20 IV. 21 22 MEMBERS OF THE PUTATIVE CLASS IN FINEMAN OVERLAP WITH THE PUTATIVE GARCIA CLASS. The putative class in Garcia is so broad that it encompasses members of the putative class 23 defined in Fineman. Garcia was brought against SCEA on behalf of “[a]ll persons who 24 purchased a non-‘Slim’ model of SONY’s Playstation®3 console in the United States from the 25 date they were first sold until the date notice is provided to the Class.”3 The Fineman action was 26 brought on behalf of “[a]ll individuals in the United States of America who (a) purchased a new 27 2 28 DLA P IPER LLP (US) 3 In re Sony PS3 Other OS Litig., 2011 WL 6117892 (N.D. Cal. Dec. 8, 2011) Ott Decl., Ex. B, ¶ 54. -3- SAN FRANCISCO ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NOS. C 10-1811 RS & C 11-02246 RS WEST\228455805.3 1 Sony PlayStation 3 (PS3) prior to September 15, 2011, and (b) accessed the Sony PlayStation 2 Network (PSN) through their PS3 prior to September 15, 2011 and accepted the Sony 3 Entertainment Network Services’ Terms of Service and User Agreement.”4 In other words, the putative classes in both cases include PSN users who purchased a non- 4 5 “Slim” PS3 from November 17, 2006 (when the PS3 was first sold) until September 14, 2011. 6 Resolving whether these classes are appropriate for certification will be far more efficient before 7 one Judge already familiar with the products and concepts at issue and will eliminate the risk of 8 inconsistent results. 9 V. 10 THERE WILL BE AN UNDULY BURDENSOME DUPLICATION OF LABOR AND EXPENSE OR CONFLICTING RESULTS IF THE CASES ARE CONDUCTED BEFORE DIFFERENT JUDGES. 11 If the Fineman case is conducted before a different judge, there will be obvious 12 duplication of the Court’s efforts in Other OS and its continuing efforts in Garcia. Each case will 13 require familiarity with similar issues such as the PSN Terms of Service and User Agreement and 14 the functions and uses of the PS3 or PSN. This Court already obtained familiarity with such 15 issues during the pendency of the Other OS case and Garcia matters. Moreover, SCEA would be 16 required to defend related lawsuits before separate judges of the same district court at the same 17 time, where the lawsuits describe overlapping putative classes disputing the same property and 18 transactions. See In re Leapfrog Enterprises, Inc. Securities Litigation, 2005 WL 5327775, at *1 19 (N.D. Cal. Jul. 5, 2005). Because the requirements of Local Rule 3-12(a) are satisfied, the Court 20 should relate Fineman to the Other OS and Garcia matters. 21 Finally, both Garcia and Fineman remain at very early stages of litigation, such that there 22 would be no risk of possible prejudice to the parties in Fineman if this Court were to assume that 23 assignment. In the Garcia case, the named plaintiff filed a Second Amended Class Action 24 Complaint only two months ago, which is currently the subject of a motion to dismiss. The 25 Fineman case was filed just last month. 26 IV. Based on the foregoing, defendant SCEA and non-party SNEI respectfully request that, in 27 28 CONCLUSION 4 Id., Ex. C, ¶ 26. -4- DLA P IPER LLP (US) SAN FRANCISCO ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NOS. C 10-1811 RS & C 11-02246 RS WEST\228455805.3 1 accordance with Local Rule 3-12, the Fineman case should be related to the Other OS and Garcia 2 cases and assigned to this Court. 3 Dated: December 22, 2011 4 DLA PIPER LLP (US) By /s/ Carter Ott CARTER OTT Counsel for Defendant Sony Computer Entertainment America LLC and Non-Party Sony Network Entertainment International LLC 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DLA P IPER LLP (US) SAN FRANCISCO ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NOS. C 10-1811 RS & C 11-02246 RS WEST\228455805.3