In Re Sony PS3 "Other OS" Litigation

Filing 27

MOTION to Consolidate Cases and Appoint Finkelstein Thompson LLP As Interim, Co-Lead Class Counsel; Memorandum Of Points And Authorities In Support Thereof filed by Todd Densmore, Antal Herz. Motion Hearing set for 6/24/2010 01:30 PM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order (1) Consolidating Cases, and (2) Appointing Finkelstein Thompson LLP as Interim, Co-Lead Class Counsel)(Rivas, Rosemary) (Filed on 5/19/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANTHONY VENTURA, on behalf of himself and all others similarly situated, Plaintiff, SONY COMPUTER ENTERTAINMENT AMERICA INC., Defendant. Case No. 3:10-cv-01811 RS NOTICE OF MOTION AND MOTION FOR AN ORDER (1) CONSOLIDATING CASES, AND (2) APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: June 24, 2010 Time: 1:30 p.m. Courtroom: 3 The Honorable Richard Seeborg [Filed concurrently with the Declaration of Rosemary M. Rivas] 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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. This document also relates to: JASON BAKER, SEAN BOSQUETT, FRANK BACHMAN, PAUL GRAHAM , and PAUL VANNATA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. Case No. 3:10-cv-01945 EDL The Honorable Elizabeth D. Laporte Case No. 3:10-cv-01897 SC The Honorable Samuel Conti 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS v. SONY COMPUTER ENTERTAINMENT AMERICA INC.; and SONY COMPUTER ENTERTAINMENT AMERICA, LLC. Defendants. SONY COMPUTER ENTERTAINMENT AMERICA, LLC successor to SONY COMPUTER ENTERTAINMENT AMERICA, INC. Defendant. This document also relates to: KEITH WRIGHT, on behalf of himself and all others similarly situated, Plaintiff(s), Case No. 3:10-cv-01975 JL The Honorable James Larson 1 2 3 4 5 I. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. 4. 3. 2. III. II. TABLE OF CONTENTS Page NOTICE OF MOTION & MOTION.............................................................................................. 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 INTRODUCTION .................................................................................................. 1 FACTUAL AND PROCEDURAL BACKGROUND............................................ 3 A. B. Plaintiffs' Allegations ................................................................................. 3 Procedural Status ........................................................................................ 5 ARGUMENT.......................................................................................................... 5 A. B. This Court Should Consolidate Ventura, Baker, Densmore, and Wright... 5 This Court Should Appoint Finkelstein Thompson LLP as Interim, CoLead Class Counsel..................................................................................... 7 1. Finkelstein Thompson LLP Has Performed Significant Work in Identifying and Investigating Potential Claims in This Action ..................................................................... 7 Numerous Courts Have Recognized Finkelstein Thompson LLP's Extensive Expertise in Pursuing Complex Litigation, Including Class Actions, and Finkelstein Thompson LLP is Knowledgeable of the Applicable Law................................................................... 9 Finkelstein Thompson LLP is Willing and Able to Commit Substantial Resources to Representing the Class.................................................................................. 13 Finkelstein Thompson LLP Works Cooperatively with Other Firms ....................................................................... 14 CONCLUSION..................................................................................................... 15 i MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 Cases TABLE OF AUTHORITIES Page(s) Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th 824, 51 Cal. Rptr. 3d 118 (Cal. Ct. App. 2006) ........................................... 10 Hacker v. Peterschmidt, No. 06-3468, 2006 WL 2925683 (N.D. Cal. Oct. 12, 2006) ....................................................... 5 Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of California, 877 F.2d 777 (9th Cir. 1989) ....................................................................................................... 5 Medlock v. Taco Bell Corp., No. CV-F-07-1314, 2009 WL 1444343 (E.D. Cal. May 19, 2009)............................................ 8 Rodriguez v. W. Publ'g Corp., 563 F.3d 948 (9th Cir. 2009) ................................................................................................. 9, 11 Statutes 18 U.S.C. § 1030............................................................................................................................. 6 Cal. Bus. and Prof. Code §§ 17200, et seq. .................................................................................... 6 Cal. Bus. and Prof. Code §§ 17500, et seq. .................................................................................... 6 Cal. Civ. Code §§ 1750, et seq........................................................................................................ 6 Rules Fed. R. Civ. P. 23(g)....................................................................................................1, 2, 14 Fed. R. Civ. P. 23(g)(1)................................................................................................................... 8 Fed. R. Civ. P. 23(g)(1)(A) .................................................................................................... passim Fed. R. Civ. P. 23(g)(3)................................................................................................................... 6 Fed. R. Civ. P. 42........................................................................................................................ 1, 5 ii MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 1 NOTICE OF MOTION & MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD in the matters of Ventura v. Sony Computer Entertainment America Inc., 3:10-cv-01811 RS; Densmore, et al. v. Sony Computer Entertainment America, Inc., 3:10-cv-01945 EDL; Baker, et al. v. Sony Computer Entertainment, LLC, 3:10-cv-01897 SC; and Wright v. Sony Computer Entertainment America Inc., et al., 3:10-cv-01975 JL: PLEASE TAKE NOTICE that on June 24, 2010, at 1:30 p.m., before the Honorable Richard Seeborg of the Northern District of California, Plaintiffs Densmore and Herz will and hereby do move for an order (1) consolidating the above-captioned cases, and (2) appointing Finkelstein Thompson LLP as interim, co-lead class counsel pursuant to Fed. R. Civ. P. 42 and 23(g). This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Declaration of Rosemary M. Rivas, the papers on file in the matters, the arguments of counsel, and any other matter the Court wishes to consider. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs Todd Densmore and Antal Hertz filed one of four proposed class actions against Defendants Sony Computer Entertainment America, Inc. and/or Sony Computer Entertainment America, LLC (collectively "Sony"). The suits arise out of Sony's decision to eliminate a valuable, advertised function available on its Playstation®3 video game console ("PS3"). Plaintiffs Densmore and Hertz now seek an order that (1) consolidates the four actions, and (2) appoints their counsel, Finkelstein Thompson LLP ("FT"), as interim, co-lead class counsel under Rule 23(g) of the Federal Rules of Civil Procedure.1 As Plaintiffs Densmore and Herz explain in greater detail below, the four cases (all of which were filed within about a week of each other) involve common questions of fact and law. Each case alleges that Sony advertised and sold PS3 gaming consoles as including the "Install FT proposes a leadership structure consisting of two co-leads with the authority to select other firms to form an executive committee, subject to the Court's approval. 1 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 27 28 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 Other OS" function, which allowed users to install operating systems other than the PS3's native operating system. The "Install Other OS" function allowed users to run different web browsers, programs and essentially operate the PS3 like a computer. Sony advertised the "Install Other OS" as being an important function to the PS3. On April 1, 2010, Sony released an update, Firmware 3.21, which was mandatory if users wished to maintain other certain PS3 functions, such as the ability to play Blu-ray discs and play games online. Upon installation of Firmware 3.21, however, users lost the "Install Other OS" function. All four cases bring claims under California's consumer protection statutes and seek certification of essentially the same class of consumers. Accordingly, consolidation of the four cases is appropriate. FT is also the firm that is the best able to represent the proposed Class based on the criteria set forth in Rule 23(g). First, FT has a spent a significant amount of time and effort investigating and identifying the claims at issue. Declaration of Rosemary M. Rivas ("Rivas Decl."), ¶ 13. FT launched its investigation on March 28, 2010, in response to requests from consumers seeking representation and before Sony even eliminated the "Install Other OS Feature." Id. These consumers informed FT that they were contacting the firm because they heard about FT's reputation and believed FT could help them. Id. As part of its investigation, FT reviewed: (1) Sony's advertisements and public statements about the PS3's features and functionality, including the "Install Other OS" function and future firmware updates; (2) Sony's warranty; (3) Sony's terms and conditions; (4) the PS3 owner manual; and (5) Sony's system software license agreement. Rivas Decl. ¶ 13. FT has continued to interview numerous consumers and has compiled a list of their contact information, complaints and experiences. Id. Second, FT has substantial experience in litigating class actions and complex litigation, including the types of claims at issue here. FT has recovered hundreds of millions of dollars on behalf of consumers and investors and numerous judges in state and federal courts around the country have praised the quality of FT's representation against some of the largest and most powerful corporations. Id. at ¶¶ 6-7. As such, a number of judges in this District, including 2 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 Judge Jeremy Fogel, Judge Susan Illston, and Judge Claudia Wilken, have appointed FT as colead or lead class counsel. Id. Third, FT's attorneys have great knowledge of the applicable law. One of FT's lead attorney's in this case, Douglas G. Thompson, has served as lead or co-lead counsel in some of the largest class actions certified. Rosemary M. Rivas, another lead attorney with FT, has exclusively represented consumers in class actions under California's consumer protection statutes for almost a decade with repeated success. FT's attorneys have defeated motions to dismiss, motions for summary judgment and have obtained class certification and settlements against some of largest and most resourceful defendants, including Microsoft, Merrill Lynch, Sears, West Publishing Corporation, Gateway, Inc., Blue Shield of California, Apple Computer, Inc. and Facebook, Inc., to name a few. Fourth, FT has the resources to commit to this litigation. With 20 lawyers, a strong staff of paralegals, an in-house financial analyst and offices in San Francisco, California and Washington, D.C., FT is willing and able to provide a depth of resources unmatched by any other firm in this litigation. Accordingly, Plaintiffs Densmore and Hertz respectfully request that this Court grant their motion. II. FACTUAL AND PROCEDURAL BACKGROUND A. Plaintiffs' Allegations On November 17, 2006, Sony introduced the PS3, touting it as "the most advanced computer system that serves as a platform to enjoy next generation computer entertainment." Sony advertised, marketed, and sold PS3 systems as including a built-in Blu-ray disc player, the ability to go online to access the PlayStation Network ("PSN") and play against other players, and the ability to install other operating systems, also known as the "Install Other OS" function. The ability to play Blu-ray discs and install other operating systems is unique to the PS3 amongst other video games consoles such as Microsoft's Xbox and Nintendo's Wii. The "Install Other OS" function allowed Plaintiffs and other PS3 users to install other operating systems; this in turn allows PS3 users to run a number of web browsers, which provide 3 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 more functionality than the one browser Sony has in its native PS3 operating system. Users could also run word processor software, spreadsheet software, and email software on other operating systems. The "Install Other OS" function essentially allowed users to operate the PS3 like a computer rather than simply a gaming console. Indeed, Sony advertised that "[t]here is more to the PLAYSTATION®3 (PS3TM) computer entertainment system than you may have assumed. In addition to playing games, watching movies, listening to music, and viewing photos, you can use the PS3TM system to run the Linux operating system. By installing the Linux operating system, you can use the PS3TM system not only as an entry-level personal computer with hundreds of familiar applications for home and office use, but also as a complete development environment for the Cell Broadband EngineTM (Cell/B.E.)." Sony made numerous representations on its website and advertisements regarding the PS3's "Install Other OS" function and users' ability to use the PS3 as a computer instead of simply as a gaming console. Sony knew that the ability to run other operating systems was considered to be important and material to users. On or around August 18, 2009, Sony announced the release of the PS3 "slim" model available on September 1, 2009. The PS3 slim did not include the ability to install other operating systems. Sony, however, reassured users that Sony "is committed to continue the support for previously sold models that have the `Install Other OS' feature and that this feature will not be disabled in future firmware releases." On or about April 1, 2010, Sony released Firmware 3.21, which would disable the "Install Other OS" function. Users were not really given a choice in whether to install Firmware 3.21. Users who installed Firmware 3.21 lost the valuable "Install Other OS" function. On the other hand, users who failed to install Firmware 3.21 lost other advertised and valuable functions such as: (1) the ability to sign-in to the PSN, which allows users to play games online; (2) the ability to use online features that require a user to sign in to the PSN, such as chat; (3) the ability to use the online features of PS3 format software; (4) playback of PS3 software or Blu-ray Disc videos that require Firmware 3.21 or later; (5) playback of copyright-protected videos that are 4 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 stored on a media server; and (6) use of new features and improvements that are available on PS3 Firmware 3.21 or later. B. Procedural Status Within a span of about a week, four cases were filed against Sony relating to its elimination of the "Install Other OS" function. On April 27, 2010, the case titled Ventura v. Sony Computer Entertainment America Inc ("Ventura"), 3:10-cv-01811 RS was filed in the United States District Court for the Northern District of California and is assigned to this Court. On April 30, 2010, the case titled Baker, et al. v. Sony Computer Entertainment, LLC ("Baker"), 3:10-cv-01897 SC was filed in the United States District Court for the Northern District of California and is assigned to the Honorable Samuel Conti. On May 5, 2010, the case titled Densmore, et al. v. Sony Computer Entertainment America, Inc. ("Densmore"), 3:10-cv-01945 EDL was filed in the United States District Court for the Northern District of California and is assigned to the Honorable Elizabeth B. Laporte. On May 6, 2010, the case titled Wright v. Sony Computer Entertainment America Inc., et al. ("Wright"), 3:10-cv-01975 JL was filed in the United States District Court for the Northern District of California and is assigned to the Honorable James Larson. On May 17, 2010, in an effort to move all of the cases forward efficiently and expediently before one judge, Plaintiffs Densmore and Herz filed an administrative motion to relate the Densmore, Baker, and Wright actions to Ventura as required by Local Rule 3-12. III. ARGUMENT A. This Court Should Consolidate Ventura, Baker, Densmore, and Wright Fed. R. Civ. P. 42 provides that "[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." The district court has broad discretion to consolidate cases pending in the same district. Hacker v. Peterschmidt, No. 06-3468, 2006 WL 2925683, *2 (N.D. Cal. Oct. 12, 2006); Investors Research 5 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 Co. v. U.S. Dist. Court for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 1989) (district court shall consider consolidation motion even if cases are before different judges and a related case transfer was denied). The Ventura, Densmore, Baker, and Wright actions should be consolidated. All four actions involve common questions of fact such as whether Sony advertised the "Install Other OS" function and other functions, such as the ability to play games online and to play Blu-ray discs, as integral to the PS3 console and whether Sony provided no real option to users when it released Firmware 3.21, which required users to either lose the "Install Other OS" feature or lose the other advertised features described above. All four actions involve common questions of law, such as whether consumers are entitled to relief for Sony's wrongful conduct in releasing Firmware 3.21 to disable the "Install Other OS" function and forcing consumers to choose between either losing the "Install Other OS" function or losing others. All four cases state claims for breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Consumers Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.) and the California Unfair Competition Law (Cal. Bus. and Prof. Code §§ 17200, et seq.).2 Finally, all four cases are brought on behalf of a Class of 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. Accordingly, Plaintiffs Densmore and Herz request that this Court consolidate Ventura, Densmore, Baker, and Wright, direct that the filings in each matter shall carry the case number of this matter, and direct that the filings shall bear the caption: In re Sony PS3 "Install Other OS" Function Litigation. // // Ventura, Densmore, and Wright also assert a claim for unjust enrichment. In addition, Densmore 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.). 6 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 2 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 B. This Court Should Appoint Finkelstein Thompson LLP as Interim, Co-Lead Class Counsel A court may designate interim counsel to act on behalf of a proposed class before determining whether to certify the action as a class action. Fed. R. Civ. P. 23(g)(3). Pursuant to Fed. R. Civ. P. 23(g)(1)(A), when appointing interim lead class counsel, the court must consider: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel's knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class; Each of these factors support FT's appointment as interim, co-lead class counsel in these proceedings. 1. Finkelstein Thompson LLP Has Performed Significant Work in Identifying and Investigating Potential Claims in This Action The first factor a court must consider in appointing lead counsel is the work done in identifying or investigating potential claims in the action. Fed. R. Civ. P. 23(g)(1)(A). FT has devoted substantial hours and resources in this action. FT launched its investigation on March 28, 2010, in response to requests from consumers seeking representation and even before Sony eliminated the "Install Other OS" function. Rivas Decl. ¶ 13. As part of its investigation, FT reviewed: (1) Sony's advertisements and public statements about the PS3's features and functionality, including the "Install Other OS Feature," and future firmware updates; (2) Sony's warranty; (3) Sony's terms and conditions; (4) the PS3 owner manual; and (5) Sony's system software licensing agreement. FT extensively investigated Sony's actions, the Firmware 3.21 (including the advantages and disadvantages of installing it), as well as the history of the "Install Other OS" function. Id. 7 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 Before filing the Densmore complaint, FT received numerous inquiries from PS3 users regarding whether Sony's issuance and transmittal of Firmware 3.21 was actionable. In fact, PS3 users informed FT that they were contacting the firm because they had heard about FT's reputation in pursuing class actions and they believed that FT could help them. Rivas Decl. ¶ 13. After thoroughly discussing the issues with Plaintiffs, reviewing Plaintiffs' documentation, reviewing other consumer complaints online, and researching the possible claims, FT filed the Densmore action on May 5, 2010. Id. Since Densmore was filed, FT has continued to receive inquiries from numerous PS3 owners regarding the Complaint and their possible participation in the action. Rivas Decl. ¶ 14. FT has responded to these inquiries via email and/or telephone and has received additional information regarding customer dissatisfaction with Sony's actions. Id. FT has compiled a list of these PS3 owners, their contact information, and the factual information provided to FT. Id. That FT was not the first firm to file is of no moment. It is well known that "[t]he first attorney to file is not entitled to special consideration for appointment as lead counsel simply by winning the race to the courthouse." Medlock v. Taco Bell Corp., No. CV-F-07-1314, 2009 WL 1444343, *6 (E.D. Cal. May 19, 2009) (citing 3 William B. Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 9:35 (4th ed. 2009)). Rather, the factors to consider "include experience and prior success record, the number, size, and extent of involvement of represented litigants, the advanced stage of the proceedings in a particular suit, and the nature of the causes of action alleged." Medlock, 2009 WL 1444343, at *6. FT's experience and prior success record are discussed in detail, infra. Both Plaintiffs Densmore and Herz have been involved in this case and the development of the complaint. Rivas Decl. ¶ 13. All four cases have just been filed so the Ventura proceedings are not more advanced than those in any other case. Finally, FT has investigated and asserted additional claims not raised in the other complaints, which will more thoroughly protect the interests of the class members. See Fed. R. Civ. P. 23(g)(1) (the court considers work counsel has done in identifying or investigating potential claims in the action); see also Christiansen, et al. v. JP 8 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 Morgan Chase & Co., et al., Case No. 09-6352 at 5 (C.D. Cal. Jan. 5, 2010) (civil minutes appointing counsel advancing unique claims as class counsel). Here, FT has addressed the relevant Fed. R. Civ. P. 23(g)(1)(A) factors in detail, has conducted significant investigation in Densmore, all four cases were filed within days of each other, and has investigated and identified additional claims. Accordingly, the first Rule 23(g)(1)(A) factor supports the appointment of FT. 2. Numerous Courts Have Recognized Finkelstein Thompson LLP's Extensive Expertise in Pursuing Complex Litigation, Including Class Actions, and Finkelstein Thompson LLP is Knowledgeable of the Applicable Law The second and third factors a court must look at in appointing lead counsel are counsel's experience in handling class actions, other complex litigation, claims of the type asserted in the action, and counsel's knowledge of the applicable law. Fed. R. Civ. P. 23(g)(1)(A). FT has extensive experience leading complex consumer cases in state and federal trial and appellate courts across the country. Indeed, FT concentrates almost exclusively in representing plaintiffs in complex class actions. Numerous courts have recognized FT's skill and experience in class actions and complex litigation. Rivas Decl. ¶¶ 6-8. For example, in a published decision affirming the settlement of $49 million achieved by FT and its co-counsel in an antitrust class action lawsuit in the bar review market, the Ninth Circuit stated that "counsel has considerable experience in litigating . . . class actions, and other complex litigation." Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 967 (9th Cir. 2009). Rivas Decl. ¶ 6. In Freeland v. Iridium World Communications, Case No. CR 99-1002 (D.D.C.), the Honorable Nanette K. Laughrey commended FT and its co-counsel for their work in achieving a $43.1 million settlement, stating "[a]ll of the attorneys in this case have done an outstanding job, and I really appreciate the quality of work we had in our chambers as a result of this case." Id. Similarly, in In re Interbank Funding Corp. Sec. Litig., Case No. 021490 (D.D.C.), Judge Bates of the District Court for the District of Columbia observed that FT 9 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 had "skillfully, efficiently, and zealously represented the class, and . . . worked relentlessly throughout the course of the case." Rivas Decl. ¶ 6. A sampling of the ongoing, national consumer class actions in which FT is currently playing a prominent role include: · Lima v. Gateway, Case No. SACV09-01366 DMG (C.D. Cal.): FT serves as lead counsel in this class action alleging that Gateway made representations that were likely to deceive reasonable consumers and failed to disclose material information in connection with the sale of its computer monitors. In this role, FT persuaded Judge Dolly M. Gee that the case was not subject to the rule announced in Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th 824, 51 Cal. Rptr. 3d 118 (Cal. Ct. App. 2006) and its progeny. As a result of FT's efforts, Judge Gee denied defendant's motion to dismiss in its entirety. · In re Facebook PPC Advertising Litigation, Case No. C 09-03043 JF (N.D. Cal.): Judge Jeremy Fogel appointed FT as co-lead counsel in this class action on behalf of advertisers alleging charges for "invalid clicks." FT defeated Facebook's attempts to dismiss the litigation at the pleading stage. · In re DirecTV Early Cancellation Fee Marketing and Sales Practices Litigation, Case No. 8:09-ml-2093AG (C.D. Cal.): Judge Andrew Guilford appointed FT as one of four members of an Executive Committee in this multidistrict litigation. FT has been actively involved in pleading the complaint, motion practice and discovery. · In re Sony PS3 Litigation, Case No. 09-4701 (N.D. Cal.): FT serves on the executive committee in this litigation involving the Sony PlayStation 3 electronic gaming system. In this role, FT drafted the consolidated complaint and worked on opposing Sony's motion to dismiss, which is currently scheduled for hearing. · Crowley v. J.P. Morgan Chase & Co., Case No. 112540/09 (Sup. Ct. N.Y.): FT serves as one of two co-leads in this class action alleging that the defendants 10 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 · · · systemically decrease customer's credit limits without timely and reasonable notice of the decrease. Ironworkers Local No. 399 and Participating Employers Health And Welfare Funds v. Janssen, L.P., Case No. 3:06-cv-03044-FLW-JJH (D.N.J): FT is lead counsel of third-party payor class actions alleging that Janssen and Johnson & Johnson promoted and disseminated misleading messages about the safety and efficacy of the off-label use of Risperdal®. To date, FT has, among other things, facilitated the organization of meetings and conference calls with counsel, attended hearings, and managed the filing of the Consolidated Amended Complaint. In re Aqua Dots Products Liability Litigation, MDL No. 1940, Case No. 1:08-cv02364 (N.D.Il.): FT is one of four co-leads in this national class action brought on behalf of purchasers of Chinese-made Aqua Dots toys containing a toxic coating. In this role, FT has participated in all aspects of the case, including discovery and drafting the motion for class certification and opposition to the motion to dismiss. In re Intel Microprocessor Antitrust Litigation, Case No. 05-1717, (D. Del.): FT serves on the Discovery Committee in this litigation asserting claims on behalf of purchasers of Intel microprocessors, and in that capacity has negotiated discovery of massive amounts of transactional data from approximately 20 third parties over several years and has taken multiple depositions concerning that data. FT has also achieved settlements totaling over one billion dollars for the classes it has represented, including the following cases brought on behalf of consumers:3 FT is similarly a leader in its other practice areas, including antitrust, commodities and securities litigation. See, e.g., In re Natural Gas Commodity Litig., Case No. 03-6186 (S.D.N.Y.) (Co-Lead Counsel negotiating over $100 million in settlements); Heliotrope Gen., Inc. v. Sumitomo Corp., et al., Case No. 701679 (Cal. Super. San Diego)(Co-Lead Counsel negotiating settlements totaling $100 million); Rodriguez v. West Publ'g, 563 F.3d 948 (9th Cir. 2009) (Coclass counsel negotiating settlements totaling $49 million); In re Merrill Lynch & Co., Inc. Research Reports Litigation, MDL 1484 (S.D.N.Y.) (Lead Counsel in six of the underlying 11 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 3 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 · In re Mattel, Inc. Toy Lead Paints Products Liability Litigation, Case No. 2:07ml-0187-DSF-AJW (C.D. Cal.): FT serves on the executive committee in this consolidated litigation, which asserted claims on behalf of purchasers of toys containing either lead paint or faulty magnetic attachments and which resulted in a multimillion dollar settlement. FT was the sole counsel in this proceeding asserting claims on behalf of purchasers of toys containing magnets. · In re Diet Drugs Prods Liab. Litig., MDL 1203 (E.D. Pa.): FT served as the CoChair of a litigation group designated to prosecute claims not initially advanced by the Plaintiffs' Management Committee. FT was focused primarily on prosecuting a class refund remedy which was valued (at settlement) at nearly $240 million. · In re Countrywide Financial Corp. Customer Data Security) Case No. 3:08-md01998-TBR (W.D. Ky.): FT serves as lead counsel in this case, in which over 2.4 million customers' private financial information was stolen and sold to outsiders. FT participated in all aspects of the case, including negotiating a multimillion dollar settlement, currently scheduled for final approval in July 2010. · In re Heartland Payment Systems, Inc. Data Security Breach Litig., Case No. H09-MD-02046 (S.D. Tex.): FT serves as one of three co-lead counsel in this multidistrict litigation, which prosecutes claims on behalf of hundreds of millions securities class actions with a total settlement amount of $125 million); Rudolph vs. UT Starcom, et al, Case No. 3:07-CV-04578-SI (N.D. Cal.) (sole Lead Counsel in securities class action negotiating a settlement totaling $9.5 million); Holly Glenn v. Polk Audio, Inc., Case No. 99cv4768 (Md. Cir. ­ Baltimore) (Co-Lead Counsel in securities class action negotiating settlement totaling $4.8 million); Grecian v. Meade Instruments, Inc., Case No. 06cv908 (C.D. Cal.) (sole Lead Counsel in securities class action negotiating settlement totaling $3 million); Conroy, et al. v. 3M Corporation, et al.,Case No. 4:00-CV-2810 CW (N.D. Cal.) (co-lead counsel in class action for antitrust violations achieving settlement valued at $41 million). 12 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 · · of individuals whose financial information was put at risk due to a data security breach. In this role, FT has successfully negotiated a multimillion dollar settlement. In re Reformulated Gasoline (RFG) Antitrust and Patent Litigation, Case No. 05cv1671 (C.D. Cal.): Judge Snyder appointed FT co-lead counsel in this class action for antitrust violations. FT achieved a settlement in the amount of $48 million. In re Dynamic Random Access (DRAM) Antitrust Litig, Case No. M-02-1486 (N.D. Cal.): FT serves on the Executive Committee in this litigation brought on behalf of indirect consumer purchasers of DRAM memory. This litigation recently settled. In addition, FT has been in business for 33 years and is nationally recognized as a premier class action firm. Rivas Decl. ¶ 2. FT's attorneys are highly skilled and experienced in this type of litigation and the above sampling of representative cases shows that FT has knowledge of the applicable law. Rivas Decl. ¶ 2-5. 3. Finkelstein Thompson LLP is Willing and Able to Commit Substantial Resources to Representing the Class The fourth factor a court must look at in appointing lead counsel is the resources counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A). FT's track record of effective prosecution of complex class actions reflects its willingness to commit the resources and time necessary to effectively prosecute this case. Indeed, the firm has, on several occasions, prosecuted cases lasting many years and requiring significant commitment. See, e.g., Freeland v. Iridium World Communications, Ltd., et al., Case No. 99-1002 (D.D.C) (nine years of litigation leading to $43.1 million settlement); In re Natural Gas Commodity Litig., Case No. 03616 (S.D.N.Y.) (four years of litigation leading to final approval of over $100 million in 13 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 settlements); Heliotrope Gen., Inc. v. Sumitomo Corp., et al., Case No. 701679 (Cal. Super- San Diego) (over six years of litigation leading to approval of over $100 million in settlements). FT has already committed significant time and resources by investigating and drafting the Densmore complaint, exploring causes of actions not alleged in the other actions, and communicating with Plaintiffs and other interested PS3 users. Rivas Decl. ¶¶ 13-14. The partners and associates at FT have worked diligently and efficiently to advance the claims of its clients and members of the proposed class. FT anticipates that its attorneys will continue to work on this matter and draw on the expertise FT's in-house chartered financial analyst, as events require. With respect to financial resources, FT is capable of funding litigation against some of the most well-heeled defendants and defense attorneys in the country as reflected by the firm's cases. FT is fully prepared to ­ and indeed, expects to ­ invest similar financial resources here. Rivas Decl. ¶¶ 4-5. 4. Finkelstein Thompson Works Cooperatively with Other Firms Finally, FT has a reputation for working cooperatively with other firms. Indeed, FT's track record in serving as lead or co-lead class counsel in some cases, while serving on executive committees in others, proves this point. In this litigation, FT reached out to Meiselman, Denlea, Packman, Carton & Eberz P.C. ("MDPCE"), counsel for Plaintiff Ventura. Rivas Decl. ¶ 15. Specifically, Rosemary M. Rivas of FT contacted Jeffrey Carton of MDPCE to discuss strategy for the case and an inclusive co-leadership structure for plaintiffs' counsel that would serve the best interests of the Class. Id. MDPCE refused to discuss the issues for various reasons until May 17, 2010, when Mr. Carton telephoned Ms. Rivas and presented as a fait accompli a coleadership structure consisting of MDPCE and Calvo & Clark LLP ("C&C"), the firm that filed the fourth action (Wright). Id. An hour or so later, MDPCE and C&C filed a motion for appointment of interim, co-lead class counsel. Id. FT submits that based on all of the factors listed under Rule 23(g), as well as FT's reputation for working cooperatively with other firms, it is the best firm suited to serve as one of 14 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS 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 two co-leads. Rivas Decl. ¶ 16. Should FT be appointed as interim, co-lead class counsel, FT will ensure that work will be fairly divided amongst all the firms according to their skills and knowledge, and so as to avoid duplication of efforts. III. CONCLUSION For the foregoing reasons, Plaintiffs Densmore and Herz respectfully request that this Court enter the Proposed Order submitted herewith: (1) consolidating Ventura, Densmore, Baker, and Wright; and (2) appointing FT as interim, co-lead class counsel to act on behalf of the proposed Class. Dated: May 19, 2010 Respectfully submitted, FINKELSTEIN THOMPSON LLP /s/ Rosemary M. Rivas Rosemary M. Rivas Tracy Tien 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 15 MOTION FOR ORDER CONSOLIDATING CASES AND APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, CO-LEAD CLASS COUNSEL CASE NO. 3:10-cv-01811 RS