Levitte v. Google Inc.

Filing 74

STIPULATION AND ORDER ADDING West Coast Cameras, Inc.and Richard Oesterling and TERMINATING Bolaji Olabode re 73 Stipulation. West Coast Cameras, Inc. and Richard Oesterling are herby added to the consolidated action as plaintiffs. Bolaji Olabode terminated. On or before 2/22/2010, Plaintiffs shall file an Amended Consolidated Complaint consistent with the terms of Stipulation as a separate docket entry. On or before 3/1/2010, Defendant shall file an Amended Answer consistent with the terms of Stipulation as a separate docket entry. Signed by Judge James Ware on 2/17/2010. (ecg, COURT STAFF) (Filed on 2/17/2010)

1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 OF D IS UNITED STATES DISTRICT COURT T R I C T NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ER N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Document Relates to: All Actions STIPULATION AND [PROPOSED] ORDER ADDING AND DROPPING PARTIES IN RE GOOGLE ADWORDS LITIGATION Case No. 08-3369 JW 1. A C LI ROBERT C. SCHUBERT S.B.N. 62684 WILLEM F. JONCKHEER S.B.N. 178748 KIMBERLY A. KRALOWEC S.B.N. 163158 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP ERED O ORD D Three Embarcadero Center, Suite 1650 IT IS S DIFIE San Francisco, CA 94111 AS MO Telephone: (415) 788-4220 Facsimile: (415) 788-0161 re mes Wa Judge Ja Lead Counsel for Plaintiffs UNIT ED S S DISTRICT TE C TA FO R NIA RT U O NO RT H 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 WHEREAS, by order dated February 25, 2009 the Court consolidated four related class actions under the foregoing caption, and appointed the law firm of Schubert Jonckheer Kolbe & Kralowec LLP as interim lead counsel (Docket #40); WHEREAS, on April 24, 2009, plaintiffs filed the Consolidated Class Action Complaint in this matter (Docket #45); WHEREAS, on May 18, 2009, defendant Google, Inc. ("Google") filed its answer to the Consolidated Class Action Complaint; WHEREAS, on July 27, 2009, the action Olabode v. Google Inc., No. 09-3414 JW was filed in this Court, which action is based on the same alleged facts and circumstances concerning Google's AdWords program at issue in the consolidated action; WHEREAS, on August 21, 2009, the Court issued an order relating Olabode to the consolidated action, In re Google AdWords Litigation, No. 08-3369 JW; WHEREAS, on October 2, 2009, the Court issued an order consolidating Olabode into the consolidated action, and, pursuant to Federal Rule of Civil Procedure 21, added plaintiff Olabode as a party; WHEREAS, after October 10, 2009, plaintiff Olabode died; WHEREAS, the parties agree that, pursuant to Federal Rule of Civil Procedure 21, plaintiff Olabode should now be dropped from the consolidated action without prejudice; WHEREAS, lead counsel for plaintiffs have been retained to file a new action on behalf of additional plaintiffs, West Coast Cameras, Inc. and Richard Oesterling, and to bring claims on their behalf based on the same alleged facts and circumstances concerning Google's AdWords program at issue in the consolidated action; WHEREAS, to avoid the time and expense associated with filing a new complaint and having it related and then consolidated with this one, the parties agree that, pursuant to Federal Rule of Civil Procedure 21, plaintiffs West Coast Cameras, Inc. and Mr. Oesterling should be added to the consolidated action as parties plaintiff; WHEREAS, to facilitate discovery from the proposed new plaintiffs and to minimize the prejudice to Google in adding new plaintiffs at this stage of the litigation, plaintiffs and Google agree as follows: (1) plaintiffs will supplement their initial disclosures no later than 10 days after 2. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 the Court enters an order approving this stipulation, and (2) plaintiffs West Coast Cameras, Inc. and Mr. Oesterling will respond to the interrogatories and requests for production of documents and things that Google propounded on plaintiff JIT Packaging, Inc., as if such discovery requests had been propounded on plaintiffs West Coast Cameras, Inc. and Mr. Oesterling, and will do so no later than 10 days after the Court enters an order approving this stipulation; WHER EAS, to facilitate the addition of West Coast Cameras, Inc. and Mr. Oesterling to the existing Consolidated Class Action Complaint, and pursuant to Federal Rule of Civil Procedure 15(a)(2), the Complaint should be ordered amended to add following new paragraph 10A: 10A. West Coast Cameras, Inc. is an S Corporation organized and existing under the laws of the State of Washington, and is a citizen of the State of Washington. West Coast Cameras, Inc. sells cameras and camera products. Richard Oesterling is an individual and a citizen of the State of Washington who, during the class period, was a sole proprietor doing business as KB Cameras, a store that sold cameras and camera products. During the class period, West Coast Cameras, Inc. and Mr. Oesterling contracted with Google to place advertising through Google's AdWords program, paid for clicks from ads placed on parked domain and error pages, and were damaged thereby. WHEREAS, the parties agree that Google's answer filed on May 18, 2009 shall be deemed responsive to the Consolidated Class Action Complaint, so amended, and pursuant to Federal Rule of Civil Procedure 15(a)(2), the Answer shall be ordered amended to add the following new paragraph 10A: 10A. Google admits that plaintiffs West Coast Cameras, Inc. and Richard Osterling contracted for and used Google's AdWords advertising program. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 10A, and on that basis, denies them. THEREFORE, the parties hereby stipulate, and request the Court to order, as follows: 1. Pursuant to Federal Rule of Civil Procedure 21, plaintiff Olabode is dropped from 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the consolidated action as a party plaintiff, without prejudice. 2. Pursuant to Federal Rule of Civil Procedure 21, plaintiffs West Coast Cameras, Inc. and Richard Oesterling are hereby added to the consolidated action as parties plaintiff. 3. 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 3. Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Consolidated Class Action Complaint filed April 24, 2009 (Docket #45) is ordered amended to add new paragraph 10A, set forth above. 4. Pursuant to Federal Rule of Civil Procedure 15(a)(2), defendant Google's Answer filed May 18, 2009 (Docket #46) is ordered amended to add new paragraph 10A, set forth above. 5. Plaintiffs will supplement their initial disclosures no later than 10 days after the Court enters an order approving this stipulation. 6. Plaintiffs West Coast Cameras, Inc. and Mr. Oesterling will respond to the interrogatories and requests for production of documents and things that Google propounded on plaintiff JIT Packaging, Inc., as if such discovery requests were propounded on plaintiffs West Coast Cameras, Inc. and Mr. Oesterling, and will do so no later than 10 days after the Court enters an order approving this stipulation. Dated: February 12, 2010 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP ROBERT C. SCHUBERT S.B.N. 62684 WILLEM F. JONCKHEER S.B.N. 178748 KIMBERLY A. KRALOWEC S.B.N. 163158 By: /s/Willem F. Jonckheer Willem F. Jonckheer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lead Counsel for Plaintiffs Dated: February 12, 2010 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) PETER J. WILLSEY (admitted pro hac vice) LEO P. NORTON (216282) By: /s/Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE, INC. ATTESTATION OF FILER I, Willem F. Jonckheer, hereby attest that concurrence in the filing of the document has been obtained from each of the other signatories. 4. 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 Dated: February 12, 2010 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP By: /s/Willem F. Jonckheer Willem F. Jonckheer Attorneys for Plaintiffs ORDER GOOD CAUSE APPEARING, IT IS ORDERED:AS MODIFIED: 1. Pursuant to Federal Rule of Civil Procedure 21, plaintiff Olabode is dropped from 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the consolidated action as a party plaintiff, without prejudice. 2. Pursuant to Federal Rule of Civil Procedure 21, plaintiffs West Coast Cameras, Inc. and Richard Oesterling are herby added to the consolidated action as parties plaintiff. 7. 3. Pursuant to Federal Rule of Civil Plaintiffs 15(a)(2), the Consolidated Class Action On or before February 22, 2010, Procedureshall file an Amended Consolidated Complaint filed April 24, 2009 (Docket #45) is ordered amended to add new paragraph 10A, set Complaint consistent with the terms of Stipulation as a separate docket entry. forth above. On or before March 1, 2010, Defendant shall file an Amended Answer consistent 3. Pursuant to Federal Rule of Civil Procedure 15(a)(2), defendant Google's Answer with the terms of Stipulation as a separate docket entry. filed May 18, 2009 (Docket #46) is ordered amended to add new paragraph 10A, set forth above. 4. Plaintiffs shall supplement their initial disclosures no later than 10 days after the date of this order. 5. Plaintiffs West Coast Cameras, Inc. and Mr. Oesterling shall respond to the interrogatories and requests for production of documents and things that Google propounded on plaintiff JIT Packaging, Inc. as if such discovery requests were propounded on plaintiffs West Coast Cameras, Inc. and Mr. Oesterling, and shall do so no later than 10 days after the date of this order. Dated: February 17, 2010 ______________________________ ___________________________________ JAMES WARE James Ware Hon. United States District Judge United States District Judge 5.