In Re Sony PS3 "Other OS" Litigation

Filing 38

MOTION to Consolidate Cases filed by Jason Baker. Motion Hearing set for 6/24/2010 01:30 PM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Signature Page (Declarations/Stipulations), # 2 Proposed Order)(Bishop, Charles) (Filed on 5/20/2010)

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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 Charles S. Bishop, CSB No. 99335 cbishop@connbish.com CONNOR & BISHOP 44 Montgomery Street, Suite 1750 San Francisco, CA 94104 Telephone 415.434.3006 Facsimile 415.434.1445 Attorneys for Plaintiffs Jason Baker, Sean Bosquett, Frank Bachman, Paul Graham, and Paul Vannatta UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ANTHONY VENTURA, on behalf of himself and all others similarly situated, Plaintiff, vs. SONY COMPUTER ENTERTAINMENT AMERICA, INC., Defendant. No. 10-CV-1811-RS CLASS ACTION NOTICE OF MOTION AND MOTION TO 1) CONSOLIDATE CASES AND 2) APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF P O I N T S 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 John R. Fabry] This document also relates to: TODD DENSMORE and ANTAL HERZ, on behalf of themselves and all others similarly situated, Plaintiffs, vs. CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC No. 10-CV-1945-EDL The Honorable Elizabeth D. Laporte Page -1- USDC Case #10-CV-01897-SC 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 SONY COMPUTER ENTERTAINMENT AMERICA, INC., a Delaware corporation, Defendant. This document also relates to: JASON BAKER, SEAN BOSQUETT, FRANK BACHMAN, PAUL GRAHAM, and PAUL VANNATTA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. 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, vs. SONY COMPUTER ENTERTAINMENT AMERICA, INC.; and SONY COMPUTER ENTERTAINMENT AMERICA, LLC, Defendants. The Honorable James Larson No. 10-CV-1975-JL The Honorable Samuel Conti No. 10-CV-1897-SC NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD in the matters of Ventura v. Sony Computer Entertainment America, Inc., 10-CV-1811-RS; Densmore, et al. v. Sony Computer Entertainment America, Inc., 10-CV-1945-EDL; Baker, et al. v. Sony Computer Entertainment America, LLC successor to Sony Computer Entertainment America, Inc., 10-CV-1897-SC and Wright v. Sony Computer Entertainment America, Inc., et al., No. 10-CV-1975-JL. CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC Page -2- USDC Case #10-CV-01897-SC 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 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 JASON BAKER, SEAN BOSQUETT, FRANK BACHMAN, PAUL GRAHAM and PAUL VANNATTA ("Baker"), will and hereby do move for an order appointing John R. Fabry of BAILEY & GALYEN as interim class counsel pursuant to FED. R. CIV. P. 23 and 42. This motion is based on this Notice of Motion, Motion, and Memorandum of Points and Authorities, the declaration of John R. Fabry, the papers on file in the matters, and the arguments of counsel. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Baker filed one of four proposed class actions that were filed within a two week period against Defendants SONY COMPUTER ENTERTAINMENT AMERICA, LLC and/or SONY COMPUTER ENTERTAINMENT AMERICA, INC. ("Sony"). The suits arise out of Sony's decision to eliminate valuable advertised functions available on PlayStation3 ("PS3") video game consoles that it had already sold to consumers. Baker filed a Motion to Relate the Baker and Ventura matters as required by Local Rule 3-12. Counsel in the Ventura and Wright matters have since joined forces and moved to relate and consolidate all four cases, and have themselves appointed as co-lead counsel. Counsel in the Densmore matter have also moved to consolidate the cases and to have themselves appointed as the sole lead counsel. It would be appropriate for the cases to be related and consolidated, and for a leadership structure to be formed with more than one firm as lead. The Baker Plaintiffs all reside outside of California, seek to apply California law to their claims, apply to the Court for an order appointing John R. Fabry (Motion to Admit Pro Hac Vice pending), and the law firm BAILEY & GALYEN to a co-lead position as interim class counsel. II. CONSOLIDATION All of the four cases involve common questions of fact and law. Counsel in the Ventura Densmore, action and Wright actions have filed motions to consolidate. Plaintiffs concur that the four cases should be consolidated and adopt the arguments made in their motions to consolidate. CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC Page -3- USDC Case #10-CV-01897-SC 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 III. CLASS COUNSEL FED.R.CIV.P. 23(g)(1) directs the court to appoint class counsel who will "fairly and adequately represent the interests of the class." The rule further states that the court should consider four factors in appointing counsel. Those factors are: The work counsel has done in identifying or investigating potential claims in the action, 23(g)(1)(A)(i); Counsel's experience in handling class actions, other complex litigation and claims of the type asserted in the action, 23(g)(1(A)(ii); Counsel's knowledge of the applicable law, 23(g)(1)(A)(iii); and The resources counsel will commit to representing the class. FED.R.CIV.P.23(g)(1)(A)(iv). See also; In Re: Elec. Data Sys. Corp. Sec. Litig., 2256 F.R.D. 559, 5 71 (E.D. Tex. 2005) aff'd Federal Data Sys. Corp., 429 F.3d 125 (5th Cir. 2005). As the court noted in Coleman v. General Motors Acceptance Corp., 2220 F.R.D. 64, 100 (M.D. Tenn. 2004), "the primary responsibility of the class counsel, resulting from an appointment as such, is to represent the best interests of the class." A. WORK DONE BAILEY & GALYEN has devoted substantial time to investigating and identifying the potential claims against Sony. BAILEY & GALYEN'S investigation began April 4, 2010 in response to PS3 consumer requests for help regarding Sony's actions to cripple PS3 functionality. After talking with numerous PS3 owners and investigating their claims, the Baker suit was filed on April 30, 2010. Since filing suit, BAILEY & GALYEN has received additional inquiries and continued to gather information supporting Plaintiffs' claims. ("Fabry Decl."), 8. B. EXPERIENCE John R. Fabry has been active in complex mass action litigation and trial practice since 1989. John R. Fabry has represented thousands of plaintiffs in litigation to recover for asbestos injuries caused by defective products and under the Federal Employers' Liability Act, noise-induced hearing loss under the Federal Employers' Liability Act, silicosis caused by defective products, claims for CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC Page -4- USDC Case #10-CV-01897-SC 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 mercury related injuries in the U.S. Court of Federal Claims Omnibus Autism Proceeding, and injuries caused by defective prescription drugs such as Baycol and Fen-Phen. John R. Fabry has been active in class action litigation since 2007. ("Fabry Decl."), 3, 4, 5. C. KNOWLEDGE OF THE APPLICABLE LAW BAILEY & GALYEN, in conjunction with local San Francisco counsel Charles S. Bishop of CONNOR & BISHOP, are competent to accomplish all lawyer related functions in this action. These counsel have been working together since early 2007 on the class action Michael Ewert, on Behalf of Himself and All Others Similarly Situated v. eBay, Inc., No. 07-CV-2198-RMW, U.S.D.C. Northern District of California, San Jose Division. This action involves alleged violations of the same California consumer protection statutes raised in Ewert and the coordinated case The Missing Link, Inc. d/b/a Bath Plus Inc. and Jeffrey Marks, individually and on behalf of all others similarly situated v. eBay, Inc., No. 07-CV-4487-RMW, U.S.D.C. Northern District of California, San Jose Division. ("Fabry Decl."), 6. D. COMMITMENT OF RESOURCES IN REPRESENTING THE CLASS The firm of BAILEY & GALYEN has the necessary staff and financial resources to prosecute the action for the proposed class. The law firm commits to meet the requirements as the action may demand through this Court and appellate levels, if necessary. ("Fabry Decl."), 7-8. Wherefore, counsel respectfully applies to this Court for its order consolidated Ventura, Densmore, Baker and Wright and appointing John R. Fabry as class counsel in the instant action. Dated: May 20, 2010 // // // // // // // CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC Page -5- USDC Case #10-CV-01897-SC 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 By: Respectfully submitted, CONNOR & BISHOP /s/Charles S. Bishop Charles S. Bishop CSB No. 99335 cbishop@connbish.com 44 Montgomery Street, Suite 1750 San Francisco, CA 94104 Telephone 415-434-3006 Facsimile 415-434-1445 Attorneys for Plaintiffs Jason Baker, Sean Bosquett, Frank Bachman, Paul Graham, and Paul Vannatta CLASS ACTION - NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES AND APPOINT JOHN R. FABRY OF BAILEY & GALYEN AS INTERIM CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Baker, et al. v. Sony Computer Entertainment America, LLC Page -6- USDC Case #10-CV-01897-SC