Levitte v. Google Inc.

Filing 28

MOTION to Relate Cases C08-3369 JW, C08-3452 RMW, C08-4701 PVT and C08-3888 SI filed by Google Inc.. (Attachments: # 1 Exhibit 1)(Norton, Leo) (Filed on 10/16/2008) Modified text on 10/16/2008 (cv, COURT STAFF).

Levitte v. Google Inc. Doc. 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) LEO P. NORTON (216282) (lnorton@cooley.com) 4401 Eastgate Mall San Diego, CA 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 COOLEY GODWARD KRONISH LLP PETER J. WILLSEY (admitted pro hac vice) (pwillsey@cooley.com) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION HAL K. LEVITTE, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant. Case No. 08-CV-03369 JW RS AGREED ADMINISTRATIVE MOTION TO CONSIDER WHETHER PUTATIVE CLASS ACTION CASES AGAINST GOOGLE INC. SHOULD BE RELATED (Civil L.R. 3-12 & 7-11) AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W RS Dockets.Justia.com 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO I. I NTRODUCTION Defendant Google Inc. ("Google") earlier filed an administrative motion in the case entitled Almeida v. Google, Inc., Case No. C 08-02088-RMW, before Judge Ronald Whyte to relate that case with three later-filed cases against Google. The three later filed cases at issue in that earlier administrative motion were: (1) Levitte v. Google, Inc., Case No. C 08-03369-JW; (2) RK West, Inc. v. Google, Inc., Case No. C 08-03452-RMW; and (3) Pulaski & Middleman, LLC v. Google Inc., Case No. C 08-03888-SI. All parties to the motion agreed that the three later-filed cases were related to each other, but plaintiffs disputed that the earlier-filed Almeida case was related. Certain plaintiffs also filed administrative motions in this case to relate only the three later-filed cases, which this Court denied on September 19, 2008 in light of the then pending administrative motion before Judge Whyte in the Almeida case (Docket Item Nos. 5, 9, & 17). On September 29, 2008, Judge Whyte denied the administrative motion in the Almeida case, noting that (1) all the parties agree that the three later-filed cases are related and (2) the issue of whether the three later-filed cases were related moves to Judge James Ware in the Levitte case because this case has the lowest case number of the three-later filed cases. Docket Item No. 26, at p. 7. Under Civil Local Rule 3-12(f)(2), the determination of whether the three later-filed cases were related was to be made in this case within 10 court days after Judge Whyte's denial, which made the deadline October 14, 2008. That date passed without a determination. Moreover, in the interim, on October 10, 2008, a new case not subject to the earlier administrative motion was filed in this district entitled JIT Packaging, Inc. v. Google Inc., Case No. C 08 -04701-PVT. All parties agree that this newly filed case is also related to the Levitte, RK West, and Pulaski cases. Importantly, Case Management and ADR deadlines are upcoming at the end of October through November in both the RK West and Pulaski cases, of which the Case Management orders will be re-set under Civil Local Rule 3-12(g) once the cases are related, further necessitating resolution of the related case issue. Accordingly, pursuant to Civil Local Rules 3-12 and 7-11, Google brings this motion, to which all parties agree, to request that the Court determine as soon as possible whether the 1. AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO following four putative class actions should be related and transferred to Judge Ware: (1) Levitte v. Google, Inc., Case No. C 08-03369-JW; (2) RK West, Inc. v. Google, Inc., Case No. C 0803452-RMW; (3) Pulaski & Middleman, LLC v. Google Inc., Case No. C 08-03888-SI; and (4) JIT Packaging, Inc. v. Google Inc., Case No. C 08 -04701-PVT.1 II. THE FOUR GOOGLE ADWORDS PUTATIVE CLASS ACTIONS ARE RELATED Civil Local Rule 3-12 states that actions are related when "[t]he actions concern substantially the same parties, property, transaction or event" and "[i]t 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." Civil L.R. 3-12(a). Here, all parties agree that the four Google AdWords putative class actions easily satisfy the definition for related cases. A. Substantially the Same Parties. Google is the sole named defendant in all four putative class actions, and therefore the cases concern the same defendant. Also, the four putative class actions assert duplicative putative classes of Google AdWords customers. Levitte case Complaint, ∂ 42; RK West case Complaint, ∂ 1; Pulaski case Complaint, ∂ 115; JIT case Complaint, ∂ 115. B. Substantially the Same Transactions or Events. The four Google AdWords putative class actions are also related because they concern substantially the same transactions or events. All four putative class actions arise from and relate to the named plaintiffs' and putative class members' contractual relationship with Google for Google's AdWords advertising program. Levitte case Complaint, ∂ 1; RK West case Complaint, ∂ 2; Pulaski case Complaint, ∂ 1; JIT case Complaint, ∂ 1. All the actions assert claims based on the same legal theories of unjust enrichment and alleged violation of California Business and Professions code section 17200, arising from the Google AdWords advertising program and alleged charges for clicks for advertisements placed on parked domain or error page websites. 1 The Complaint in this action is Docket Item No. 1. A copy of the RK West case Complaint is attached as Exhibit A to the Declaration of Willem F. Jonckheer i/s/o Levitte's Administrative Motion (Docket Item No. 10). A copy of the Pulaski case complaint is attached as Exhibit B to the Jonckheer Declaration (Docket Item No. 10). A copy of the JIT case Complaint is attached as Exhibit 1 to this motion. 2. AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO Levitte case Complaint, ∂∂ 54-78, 86-91; RK West case Complaint, ∂∂ 25-29, 37-46; Pulaski case Complaint, ∂∂ 140-165, 172-177; JIT case Complaint, ∂∂ 140-165, 172-177. The Pulaski and JIT cases also assert nearly identical contract based theories. Pulaski case Complaint, ∂∂ 127-139; JIT case Complaint, ∂∂ 127-139. C. Potential for Unduly Burdensome Duplication of Labor and Expense and Potential for Conflicting Rulings. If the four class actions are not related, the actions will potentially result in unduly burdensome duplication of labor and cause Google great expense. Four different judges would be tasked with resolving the same or similar issues relating to the pleadings, discovery, class certification, dispositive motions, and trial. Moreover, Google would be subjected to significant defense costs four times over, including, but not limited to, in potentially filing motions for summary judgment, opposing class certification, propounding and responding to duplicative discovery, and at trial. Also, as the cases are all putative class actions involving substantially the same subject matter, the potential exists for conflicting rulings. Transferring cases that concern substantially the same subject matter or that involve overlapping putative classes to a single judge is well recognized to result in judicial and party economy and to ensure consistent rulings. See, In re Prempro Prods. Liab. Litig., 254 F. Supp. 2d 1366, 1367 (J.P.M.L. 2003); In re Res. Exploration, Inc. Sec. Litig., 483 F. Supp. 817, 821 (J.P.M.L. 1980); In re Plumbing Fixtures, 308 F. Supp. 242, 244 (J.P.M.L. 1970). The four Google AdWords putative class actions should be related to avoid unduly burdensome duplication and conflicting rulings. D. All Parties Agree the Cases Should Be Related and Consolidated. All plaintiffs in the four actions agree with Google that the four cases should be related. Moreover, all parties agree that the cases should be consolidated once related. III. CONCLUSION All parties agree that the four putative class actions against Google relating to its AdWords advertising program are related. Consequently, Google respectfully requests that the four actions be related before the Honorable James Ware. 3. AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO Dated: October 16, 2008 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) PETER J. WILLSEY (admitted pro hac vice) LEO P. NORTON (216282) /s/Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE INC. Email: lnorton@cooley.com IT IS SO AGREED: Dated: October 16, 2008 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP ROBERT C. SCHUBERT (62684) WILLEM F. JONCKHEER (178748) KIMBERLY A. KRALOWEC (163158) /s/Willem F. Jonckheer Willem F. Jonckheer Attorneys for Plaintiff HAL K. LEVITTE Dated: October 16, 2008 KABATECK BROWN KELLNER LLP BRIAN S. KABATECK (152054) RICHARD L. KELLNER (171416) ALFREDO TORRIJOS (222458) /s/Alfredo Torrijos Alfredo Torrijos Attorneys for Plaintiff RK WEST, INC. Dated: October 16, 2008 SAVERI & SAVERI INC. GUIDO SAVERI (022349) R. ALEXANDER SAVERI (173102) CADIO ZIRPOLI (179108) /s/Cadio Zirpoli Cadio Zirpoli Attorneys for Plaintiff PULASKI & MIDDLEMAN, LLC Attorneys for Plaintiff JIT PACKAGING, INC. 4. AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W 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 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO ATTESTATION OF FILER I, Leo P. Norton, hereby attest that concurrence in the filing of the document has been obtained from each of the other signatories. Dated: October 16, 2008 COOLEY GODWARD KRONISH LLP By: /s/Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE INC. 5. AGREED ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 0 8 - CV - 0 3 3 6 9 J W RS