In re: High-Tech Employee Antitrust Litigation

Filing 85

JOINT CASE MANAGEMENT STATEMENT Amended Joint Case Management Conference Statement filed by Adobe Systems Inc., Apple Inc., Michael Devine, Mark Fichtner, Google Inc., Siddharth Hariharan, Intel Corp., Intuit Inc., Lucasfilm Ltd., Brandon Marshall, Pixar, Daniel Stover. (Shaver, Anne) (Filed on 10/20/2011)

1 6 Joseph R. Saveri (State Bar No. 130064) Eric B. Fastiff (State Bar No. 182260) Brendan P. Glackin (State Bar No. 199643) Dean M. Harvey (State Bar No. 250298) Anne B. Shaver (State Bar No. 255928) Katherine M. Lehe (State Bar No. 273472) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 7 Interim Lead Counsel for Plaintiffs and the Proposed Class 8 [Additional counsel listed on signature page] 2 3 4 5 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 15 IN RE: HIGH-TECH EMPLOYEE ANTITRUST LITIGATION 16 THIS DOCUMENT RELATES TO: 17 ALL ACTIONS 18 Master Docket No. 11-CV-2509-LHK AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: October 26, 2011 Time: 2:00 p.m. Courtroom: 8, 4th Floor Judge: The Honorable Lucy H. Koh 19 20 21 22 23 24 25 26 27 28 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 944283.4 SV: 36538-1 1 TABLE OF CONTENTS 2 Page I. 3 Facts ........................................................................................................................ 1 4 A. Plaintiffs’ Statement.................................................................................... 1 5 B. Defendants’ Statement ................................................................................ 3 6 II. Legal Issues............................................................................................................. 5 7 III. Jurisdiction and Service .......................................................................................... 6 8 IV. Motions ................................................................................................................... 7 9 A. Discovery Dispute Joint Report #1 ............................................................. 7 10 B. Defendant Lucasfilm’s Motion to Dismiss the State Law Claims.............. 9 11 C. Defendants’ Joint Motion to Dismiss the Complaint.................................. 9 12 D. Defendants’ Joint Motion for Temporary Stay of Discovery ................... 10 13 V. Amendment of Pleadings ...................................................................................... 11 14 VI. Evidence Preservation........................................................................................... 11 15 VII. Disclosures ............................................................................................................ 12 16 VIII. Discovery .............................................................................................................. 12 17 A. Plaintiffs’ Position..................................................................................... 12 18 B. Defendants’ Position ................................................................................. 13 19 IX. Class Certification................................................................................................. 15 20 X. Related Cases ........................................................................................................ 15 21 XI. Relief ..................................................................................................................... 16 22 XII. Settlement and ADR ............................................................................................. 16 23 XIII. Consent to Magistrate Judge For All Purposes ..................................................... 16 24 XIV. Other References................................................................................................... 16 25 XV. 26 XVI. Expedited Schedule............................................................................................... 17 27 XVII. Scheduling............................................................................................................. 18 28 Narrowing of Issues .............................................................................................. 16 -i944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 TABLE OF CONTENTS (continued) 2 Page 3 A. Plaintiffs’ Position..................................................................................... 18 4 B. Defendants’ Position ................................................................................. 20 5 XVIII. Trial 21 6 XIX. Disclosure of Non-party interested Entities or Persons ........................................ 21 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- 1 The parties to these consolidated actions hereby submit this joint statement in advance of 2 the October 26, 2011 Case Management Conference. 3 I. Facts 4 A. 5 This is a consolidated class action in which five individual and representative plaintiffs Plaintiffs’ Statement 6 (“Plaintiffs”) challenge a conspiracy among Defendants to fix and suppress the compensation of 7 their employees.1 The Complaint alleges that Defendants entered into: (1) illegal agreements not 8 to recruit each other’s employees; (2) illegal agreements to notify each other when making an 9 offer to another’s employee; and (3) illegal agreements that, when offering a position to another 10 company’s employee, neither company would counteroffer above the initial offer. (Complaint 11 ¶¶ 55-107.) Plaintiffs seek injunctive relief and damages for violations of: Section 1 of the 12 Sherman Act, 15 U.S.C. § 1; the Cartwright Act, Cal. Bus. & Prof. Code §§ 16720, et seq.; Cal. 13 Bus. & Prof. Code § 16600; and Cal. Bus. & Prof. Code §§ 17200, et seq. (Complaint ¶¶ 119- 14 164.) 15 This action follows an investigation by the Antitrust Division of the United States 16 Department of Justice (“DOJ”). Beginning in approximately 2009, the DOJ conducted an 17 investigation into the employment practices of Defendants. The DOJ issued Civil Investigative 18 Demands to Defendants that resulted in Defendants producing responsive documents to the DOJ. 19 The DOJ also interviewed witnesses to certain of the agreements alleged in Plaintiffs’ Complaint. 20 21 22 23 24 25 26 27 28 1 The litigation commenced on May 4, 2011 when Plaintiff Hariharan filed his complaint in Alameda County Superior Court. On May 23, 2011, Defendants removed the Hariharan case to U.S. District Court for the Northern District of California. (Dkt. No. 1.) Four cases were later filed in Santa Clara County Superior Court, each of which Defendants subsequently removed. On July 27, 2011, all five cases were related before Judge Armstrong. (Dkt. No. 52.) On August 4, 2011, Judge Armstrong granted Plaintiffs’ motion to transfer all five cases to the San Jose Division. (Dkt. No. 58.) Pursuant to Stipulated Pretrial Order No. 1 as Modified, all five cases were consolidated on September 12, 2011. (Dkt. No. 64.) Plaintiffs served their Consolidated Amended Complaint on September 2, 2011. (See Dkt. No. 64 at 6.) Pretrial Order No. 1 provides for a briefing schedule on Defendants’ motion to dismiss: Defendants’ motion to dismiss is due by October 13, 2011; Plaintiffs’ opposition is due by November 4, 2011; and Defendants’ reply is due by December 2, 2011. The hearing on Defendants’ motion to dismiss is currently scheduled for January 26, 2012. JOINT CASE MGMNT CONFERENCE STATEMENT -1Master Docket No. 11-CV-2509-LHK 944283.4 1 The DOJ concluded that Defendants agreed to eliminate forms of competition among each 2 other for skilled labor in violation of federal antitrust law. “Defendants’ concerted behavior both 3 reduced their ability to compete for employees and disrupted the normal price-setting 4 mechanisms that apply in the labor setting.” DOJ Competitive Impact Statement at 10, Dkt. 5 No. 2, United States v. Adobe Systems Inc., et al., No. 10-cv-1629-RBW (D.D.C. Sept. 24, 2010) 6 (regarding agreements among all defendants but Lucasfilm). See also DOJ Competitive Impact 7 Statement at 8, Dkt. No. 2, United States v. Lucasfilm LTD., No. 10-cv-2220-RBW (D.D.C. 8 Dec. 21, 2010) (regarding agreements between Lucasfilm and Pixar). The DOJ found that these 9 agreements are “per se unlawful under Section 1 of the Sherman Act” and are “facially 10 anticompetitive because they eliminated a significant form of competition to attract high-tech 11 employees, and, overall, substantially diminished competition to the determent of the affected 12 employees who were likely deprived of competitive important information and access to better 13 job opportunities.” DOJ Competitive Impact Statement at 3, United States v. Adobe Systems Inc., 14 et al., supra. 15 The DOJ filed suit on September 24, 2010 (against all Defendants but Lucasfilm) and on 16 December 21, 2010 (against Lucasfilm). At the same time, the DOJ filed stipulated proposed 17 final judgments in which Defendants agreed not to enter into similar agreements in the future, and 18 agreed to a variety of mandatory procedures to ensure Defendants’ compliance. [Proposed] Final 19 Judgment, Dkt. No. 3-1, United States v. Adobe Systems Inc., et al., No. 10-cv-1629-RBW 20 (D.D.C. Sept. 24, 2010). The Defendants stipulated that the DOJ’s complaint “states a claim 21 upon which relief may be granted against the Defendants under Section One of the Sherman Act, 22 as amended, 15 U.S.C. § 1.” Id. at 3. The court entered the proposed final judgments on 23 March 18, 2011 (regarding all Defendants but Lucasfilm), and on June 3, 2011 (regarding 24 Lucasfilm). 25 While the final judgments may have been designed to prevent recurrence of Defendants’ 26 illegal conduct, they did not provide any compensation to the employees who were harmed as a 27 result of Defendants’ agreements. The DOJ left this to private litigants. See DOJ Competitive 28 -2944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Impact Statement at 15, United States v. Adobe Systems Inc., et al., supra (“Remedies Available 2 to Potential Private Litigants”). 3 This consolidated class action seeks to compensate the individuals Defendants harmed 4 through their illegal agreements. To date, the only private cases addressing Defendants’ conduct 5 are the five class actions consolidated in the instant action. Without this consolidated class 6 action, Plaintiffs and the Class will not receive compensation for their injuries, and Defendants 7 will continue to retain the benefits of their unlawful collusion. 8 B. 9 Plaintiffs filed this complaint on the heels of civil settlements that Defendants reached Defendants’ Statement 10 with the United States Department of Justice relating to employee recruiting practices. As part of 11 those settlements, in which Defendants admitted no wrongdoing, DOJ alleged that various pairs 12 of Defendants entered into six discrete, bilateral agreements spread out over a 2 1/2-year period 13 not to “cold call” each others’ employees. In each instance, the DOJ complaint alleged 14 agreements involving only two companies and, with one exception, nothing other than an 15 agreement not to “cold call” each other’s employees. As even DOJ recognized, such non- 16 solicitation agreements can be pro-competitive and lawful to prevent poaching of employees in 17 the context of legitimate collaborative projects, and the civil settlements spell out the 18 circumstances in which they are not prohibited. 19 Plaintiffs copy the factual allegations relating to the six bilateral agreements virtually 20 word-for-word from the DOJ complaint, with one critical difference: Apparently recognizing the 21 implausibility of alleging that those agreements harmed them, much less a class of all of 22 Defendants’ employees, Plaintiffs instead claim that Defendants entered into a multilateral 23 “overarching” conspiracy among all of them to suppress wages for all of their employees 24 nationwide over a five-year period. 25 Defendants entered into stipulated proposed judgments with the DOJ, pursuant to which 26 they agreed not to engage in non-solicitation agreements except under certain circumstances. 27 (Compl. ¶ 115.) Defendants specifically did not admit to any wrongdoing or violation of law. 28 -3944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 (Final Judgments at 2.) These stipulated judgments carry no prima facie effect in related civil 2 litigation. See 15 U.S.C. § 16(a); United States v. Nat’l Ass’n of Broadcasters, 553 F. Supp. 621, 3 623 & n.5 (D.D.C. 1982) (holding that private antitrust actions may not give prima facie effect to 4 government consent decrees entered before oral testimony was taken). 5 The DOJ alleged in its complaints filed as part of the consent decrees that its investigation 6 focused on five discrete, bilateral no-cold-call agreements among pairs of Defendants Adobe, 7 Apple, Google, Intel, Intuit, and Pixar (id. ¶ 1), later adding a similar complaint and consent 8 decree regarding an alleged bilateral agreement between Lucasfilm and Pixar. Both stipulated 9 judgments recognize that there are many circumstances under which Defendants may legitimately 10 agree not to cold call each other’s employees. (Final Judgments at section V.) For example, 11 Defendants are free to use such agreements to the extent they are reasonably necessary for the 12 functioning of legitimate collaboration agreements; for a wide range of business transactions; in 13 contracts with consultants, auditors, vendors, recruiting agencies, or providers of temporary or 14 contract employees; in settlement or compromise of legal disputes; and employment or severance 15 agreements with their employees (id.). 16 Shortly after the Court entered the DOJ consent decrees, Plaintiff Siddharth Hariharan 17 filed the first in a series of complaints against the same seven companies that had entered into 18 consent decrees with DOJ. Hariharan alleged that he worked for Lucasfilm as a software 19 engineer for approximately seventeen months, from mid-January 2007 through mid-August 2008. 20 (Compl. ¶ 18.) Thereafter, Plaintiffs Michael Devine, Brandon Marshall, Mark Fitchner, and 21 Daniel Stover filed similar complaints. These additional Plaintiffs alleged that they worked as 22 software engineers at various times for three of the seven Defendants (Adobe, Intel, and Intuit) in 23 three different states (California, Arizona, and Washington). (Id. ¶¶ 16-20.) The complaints were 24 assigned to this Court in August 2011, and Plaintiffs thereafter filed a superseding Consolidated 25 Amended Complaint. 26 27 Defendants are seven companies—Adobe, Apple, Google, Intel, Intuit, Lucasfilm, and Pixar—described in the Complaint as belonging to an undefined group of “high technology 28 -4944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 companies.” (Id. ¶ 43.) With one significant exception, Plaintiffs’ factual allegations are taken 2 wholesale, and often verbatim, from the factual allegations in the DOJ complaints. According to 3 the Complaint, Defendants allegedly entered into six bilateral agreements over a two-year period 4 “not to cold call each others’ employees.” (Id. ¶¶ 59, 73, 79, 85, 98, 104.) Contrary to the DOJ 5 complaints, however, and without stating any facts to support such a claim, Plaintiffs contend that 6 these agreements constituted an “an interconnected web of express agreements” amounting to an 7 “overarching conspiracy” between Defendants. (Id. ¶ 55.) 8 Based on these allegations, the Complaint asserts claims under Section 1 of the Sherman 9 Act, California’s Cartwright Act, and Sections 16600 and 17200 of the California Business and 10 Professions Code. (Id. ¶ 5.) Plaintiffs seek to represent a class of all “salaried” employees of 11 Defendants over a five-year period regardless of the positions they held, with exclusions for retail 12 employees and Defendants’ corporate officers, board members, and senior executives. (Id. ¶ 30.) 13 By its terms, the class would include not only software engineers like the named plaintiffs, but 14 also secretaries, accounting personnel, in-house counsel, and Intel’s fabrication workers. Based 15 on Defendants’ initial inquiry, this putative class would total more than 83,300 members, spread 16 across the United States. 17 II. Legal Issues 18 The legal issues in this case include the following: 19 1. Defendants contest whether Plaintiffs’ Complaint has stated viable causes of action 20 under the Sherman Act, the Cartwright Act, and California Business & Professions Code Sections 21 16600 and 17200. Defendants filed a joint motion to dismiss the Complaint on October 13, 2011 22 (Dkt. No. 79), in accordance with the schedule established in Stipulated Pretrial Order No. 1 as 23 Modified (Dkt. No. 64). Defendants contend that the Complaint should be dismissed for failure 24 to state a claim upon which relief can be granted and because Plaintiffs lack standing to assert 25 claims for injunctive or declaratory relief. Defendant Lucasfilm filed a separate motion to 26 dismiss the state-law claims based on federal enclave jurisdiction (Dkt. No. 77), which all the 27 other Defendants joined (Dkt. No. 79 at 1 n.1.). 28 -5944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Plaintiffs oppose the joint motion to dismiss and Lucasfilm’s separate motion, contending 2 that the Complaint satisfies Rule 8. Plaintiffs believe that, at most, Defendants raise disputed 3 issues of fact that cannot be properly resolved on a Rule 12 motion. 4 2. Defendants contest whether the proposed class of all “salaried” employees of 5 Defendants from January 1, 2005 through January 1, 2010 may be certified, and whether 6 Plaintiffs would adequately represent such a class. Plaintiffs intend to move for class certification 7 under Rule 23 and observe that class actions are commonly certified in antitrust cases alleging 8 horizontal agreements among competitors. See, e.g., In re Rubber Chems. Antitrust Litig., 232 9 F.R.D. 346, 350 (N.D. Cal. 2005) (Jenkins, J.) (“‘Class actions play an important role in the 10 private enforcement of antitrust actions’… ‘For this reason, courts resolve doubts in these actions 11 in favor of certifying the class’… ‘a class-action lawsuit is the most fair and efficient means of 12 enforcing the law where antitrust violations have been continuous, widespread, and detrimental to 13 as yet unidentified [victims].’”) (citations omitted). 14 Defendants dispute that the putative class identified in Plaintiffs’ Complaint can be either 15 certified or maintained under Rule 23 and will oppose Plaintiffs’ motion for class certification. 16 See, e.g., Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 615-24 (2010) (describing “rigorous 17 analysis” the district court must conduct to determine that the prerequisites of Rule 23 have been 18 met in large employment class action). 19 3. If Plaintiffs’ claims survive the pleading stage, Defendants anticipate bringing one or 20 more motions for summary judgment, which may raise additional legal issues, including 21 Defendants’ contention that Plaintiffs’ claims should be judged under a rule of reason analysis. 22 III. 23 24 Jurisdiction and Service The Court has subject matter jurisdiction pursuant to Sections 4 and 16 of the Clayton Act (15 U.S.C. §§ 15 and 26) and 28 U.S.C. §§ 1331, 1332(a), 1332(d), 1337 and 1367. 25 Venue is proper in this judicial district pursuant to Section 12 of the Clayton Act 26 (15 U.S.C. § 22) and 28 U.S.C. § 1391(b), (c), and (d) because a substantial part of the alleged 27 events giving rise to Plaintiffs’ claims occurred in this district, a substantial portion of the 28 -6944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 allegedly affected interstate trade and commerce was carried out in this district, and all of the 2 Defendants reside in this district. 3 4 Defendants are subject to the jurisdiction of this Court by virtue of their contacts in this district. 5 6 All Defendants have accepted service of Plaintiffs’ Consolidated Amended Complaint (“Complaint”). No parties remain to be served. 7 Defendant Lucasfilm’s motion to dismiss disputes whether this Court has subject matter 8 jurisdiction over Plaintiffs’ claims under the Cartwright Act, California Business and Professions 9 Code §§ 16720, et seq.; and California Business and Professions Code §§ 17200, et seq. (Dkt. 10 No. 77.) All the other Defendants joined in Lucasfilm’s motion. (Dkt. 79, at 1 n.1.) Plaintiffs 11 oppose Lucasfilm’s motion. Defendants do not dispute this Court’s subject matter jurisdiction 12 over Plaintiffs’ claims under Section 1 of the Sherman Act, 15 U.S.C. § 1, or California Business 13 and Professions Code § 16600. 14 IV. 15 Motions There are four pending matters before the Court: (1) Defendants’ Joint Motion to Dismiss 16 (Dkt. No. 79); (2) Defendant Lucasfilm’s Motion to Dismiss (Dkt. No. 77); (3) Discovery Dispute 17 Joint Report #1 (Dkt. No. 76); and (4) Defendants’ Joint Motion for Temporary Stay of Discovery 18 (Dkt. No. 80). 19 20 If Plaintiffs’ claims survive past the pleading stage, Defendants anticipate bringing one or more motions for summary judgment. 21 22 Plaintiffs will file a motion to certify the proposed class under Rule 23 following sufficient discovery. 23 A. 24 Discovery Dispute Joint Report #1, which is pending before Judge Lloyd, addresses the Discovery Dispute Joint Report #1 25 parties’ dispute over whether discovery in this action should proceed pending a ruling on 26 Defendants’ joint motion to dismiss the Complaint. The Report also addresses the parties’ 27 dispute over whether the issue should be decided by Judge Lloyd (Plaintiffs’ position), or decided 28 -7944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 by the Court (Defendants’ position) through either: (1) adjudication of Defendants’ motion for 2 temporary stay (Dkt. No. 80); or alternatively (2) at the initial case management conference. 3 Plaintiffs seek an order stating that discovery in this action should proceed without further delay. 4 Defendants have filed a motion for temporary stay of discovery pending a ruling on Defendants’ 5 Joint Motion to Dismiss. 6 In the interests of efficiency, Plaintiffs have suggested discovery should commence with 7 production of documents Defendants have already produced to the DOJ and identification of 8 percipient witnesses. 9 Defendants’ Position: Defendants have informed Plaintiffs that they intend to comply 10 fully with discovery deadlines pending resolution of the motion for temporary stay. To this end, 11 Defendants have agreed to serve initial disclosures by October 24, 2011; provide comments and 12 finalize Plaintiffs’ draft protective order, ESI production specification, and stipulation regarding 13 expert discovery; and schedule additional conferences to discuss issues regarding electronically 14 stored information. Beyond these activities, Defendants’ position is that a temporary stay of 15 discovery would promote efficiency and judicial economy, avoiding the expenditure of time and 16 resources on discovery disputes (including likely disputes regarding the discoverability of 17 documents previously produced to the government) on matters that will be rendered moot if the 18 Court grants Defendants’ motion to dismiss. Defendants’ motion to dismiss targets all of 19 Plaintiffs’ claims, whether grounded on allegations of bilateral agreements or an “overarching” 20 conspiracy. 21 Plaintiffs’ Position: Plaintiffs oppose Defendants’ requested stay because it will only 22 introduce unnecessary cost and delay. Defendants’ motions to dismiss will not and cannot 23 dispose of this case. Plaintiffs do not agree that their claim is limited to an allegation of a single 24 agreement among all Defendants, or that the precise shape of the conspiracy is a question that can 25 be resolved at the pleading stage. Plaintiffs contend that Defendants concede that the complaint 26 sufficiently alleges the existence of unlawful bilateral agreements among them, in addition to 27 alleging an overarching conspiracy served by those agreements; and that this by itself requires 28 -8944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 denial of their joint motion to dismiss. Moreover, Defendants’ contention that Plaintiffs have not 2 suffered injury-in-fact is not appropriate for resolution on a motion to dismiss. 3 B. 4 Lucasfilm’s motion to dismiss seeks to dismiss Plaintiffs’ Cartwright Act and UCL claims Defendant Lucasfilm’s Motion to Dismiss the State Law Claims 5 under the federal enclave doctrine. (Dkt. No. 77.) Lucasfilm is located on the Presidio of San 6 Francisco, a federal enclave that was ceded to the United States government by the State of 7 California in 1897. Accordingly, under the federal enclave doctrine, Lucasfilm’s conduct on that 8 enclave is governed exclusively by federal law. Lucasfilm contends that Plaintiffs cannot 9 maintain claims based on alleged conduct on that enclave under the Cartwright Act or the UCL, 10 both California statues that were enacted after the Presidio became federal property. All other 11 Defendants have joined Lucasfilm’s motion. (Dkt. 79 at 1 n.1.) Plaintiffs oppose the motion. 12 Plaintiffs’ opposition is due November 4, 2011; and Lucasfilm’s reply is due December 2, 2011. 13 (Id.) The hearing on Lucasfilm’s Motion to Dismiss is scheduled for January 26, 2012. 14 C. 15 Defendants’ joint motion to dismiss the Complaint seeks dismissal on four grounds (Dkt. 16 No. 79.): 17 1. Defendants’ Joint Motion to Dismiss the Complaint The Complaint fails to state a claim upon which relief may be granted under the 18 Sherman Act or California’s Cartwright Act because it fails to allege evidentiary facts supporting 19 the claim of an “overarching conspiracy” among all Defendants to suppress the wages of their 20 employees, such a conspiracy is implausible on its face, and the Complaint fails to allege facts to 21 support a claim of injury, either from bilateral agreements or from an “overarching” conspiracy. 22 2. The Complaint fails to state a claim upon which relief may be granted under 23 California Business and Professions Code § 16600 because it fails to allege that any Defendants 24 restrained employment by agreeing not to hire each others’ employees. 25 26 3. The Complaint fails to state a claim upon which relief may be granted under California Business and Professions Code § 17200 because it does not adequately plead unfair 27 28 -9944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 competition, Plaintiffs have not lost money or property, and Plaintiffs are ineligible for any of the 2 remedies available under section 17200. 3 4. Plaintiffs lack standing to assert claims for injunctive or declaratory relief because 4 they are former employees with no stated intention of working for any Defendant, and the alleged 5 conduct has already been enjoined by the DOJ consent decrees. 6 Plaintiffs oppose the joint motion. 7 Plaintiffs’ opposition is due November 4, 2011; and Defendants’ reply is due December 2, 8 2011. (Id.) The hearing on Defendants’ Motion to Dismiss is also scheduled for January 26, 9 2012. 10 D. 11 Defendants’ Position: Defendants’ Joint Motion for Temporary Stay (Dkt. No. 80) seeks Defendants’ Joint Motion for Temporary Stay of Discovery 12 a temporary stay of discovery pending the Court’s ruling on Defendants’ joint motion to dismiss. 13 If granted, Defendants’ motion to dismiss would dispose of all claims asserted, and it requires no 14 discovery for its adjudication. On this basis alone, Defendants believe that their motion for a 15 temporary stay should be granted. Moreover, Defendants believe that, as recognized by the 16 Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), a temporary stay is 17 particularly appropriate in complex antitrust cases such as this one, where the burden of requiring 18 Defendants to engage in broad, costly and invasive discovery should only be shouldered if this 19 Court determines that Plaintiffs can plead a viable claim. 20 Plaintiffs’ Position: Plaintiffs oppose the motion. Plaintiffs believe that this case bears 21 no resemblance to Twombly, in which the plaintiffs failed to allege facts plausibly suggesting the 22 defendants had violated the antitrust laws. Here, the defendants have entered into stipulated 23 judgments with the Department of Justice in cases alleging they violated the Sherman Act. 24 Plaintiffs do not agree that Defendants’ motion, as framed, is proper or can dispose of all 25 claims in the case. Plaintiffs’ claim is not limited to allegation of a single agreement among all 26 Defendants, and the precise shape of the conspiracy is not a question that can be resolved at the 27 28 - 10 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 pleading stage but must be reserved for trial. Defendants’ motion will not dispose of the case and 2 Defendants’ requested stay will simply introduce unnecessary cost and delay. 3 Plaintiffs’ opposition is due October 27, and Defendants’ reply will be due seven days 4 after Plaintiffs’ opposition is filed. The hearing on Defendants’ Motion for Temporary Stay is 5 scheduled for December 8, 2011. 6 V. 7 Amendment of Pleadings Plaintiffs do not expect parties, claims, or defenses to be added or dismissed at this time, 8 unless discovery reveals the existence of additional conspirators or parties to the illicit 9 agreements. Defendants propose a deadline of May 15, 2012 for amending the pleadings. 10 VI. 11 Evidence Preservation Plaintiffs’ position on evidence preservation is as follows. On September 27, 2011, 12 Plaintiffs wrote Defendants regarding the preservation of evidence. Defendants did not respond. 13 At the parties’ Rule 26(f) conference on October 3, 2011, Plaintiffs’ counsel again asked 14 Defendants’ counsel to explain the “[s]teps they have taken to preserve evidence relevant to the 15 issues reasonably evidence in this action, including interdiction of any document-destruction 16 program and any ongoing erasures of e-mails, voice mails, and other electronically-recorded 17 material.” Standing Order For All Judges Of The Northern District of California: Contents Of 18 Joint Case Management Statement, at 1. Defendants’ counsel refused to discuss the issue. 19 Defendants have since agreed to schedule individual follow-up conferences to address these and 20 other issues under Rule 26. 21 Defendants respond as follows. At the Rule 26(f) conference, Defendants’ counsel 22 explained to Plaintiffs that Defendants had each taken reasonable steps to preserve documents, 23 data, and tangible things containing information potentially relevant to the subject matter of this 24 litigation as required by the Stipulated Pretrial Order (Dkt. No. 21 at 6). In a subsequent meeting 25 on October 7, Defendants agreed to schedule additional conferences to discuss issues regarding 26 electronically stored information. Those conferences are scheduled to begin the week of October 27 17. 28 - 11 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Plaintiffs state that they have preserved evidence. According to Plaintiffs’ counsel, each 2 individual and representative plaintiff has been instructed by Plaintiffs’ counsel to preserve all 3 evidence in their possession, custody, or control that is relevant to the issues reasonably evident in 4 this action, including any emails, voice mails, and other electronically-recorded material. 5 Plaintiffs’ counsel has confirmed they are preserving and maintaining all evidence reasonably 6 relevant, including both electronic documents and hard copy documents. 7 Defendants state that they understand their legal obligations to preserve evidence and have 8 each taken reasonable steps to preserve documents, data, and tangible things in their possession, 9 custody, or control containing information potentially relevant to the subject matter of this 10 litigation. According to Defendants’ counsel, Defendants have issued document hold memoranda 11 instructing potential custodians likely to have such information to preserve it and have otherwise 12 taken reasonable steps to preserve electronically stored information and hard copy documents. 13 VII. 14 Disclosures Plaintiffs served their initial disclosures on October 17, 2011. Plaintiffs’ disclosures listed 15 individuals likely to have discoverable information that Plaintiffs may use to support their claims 16 and allegations, and categories of documents, electronically stored information, and tangible 17 things that Plaintiffs have in their possession, custody, or control and may use to support their 18 claims. 19 As a courtesy, Plaintiffs agreed to Defendants’ request to extend their deadline to serve 20 initial disclosures by one week. Defendants will serve their initial disclosures on October 24, 21 2011. 22 VIII. Discovery 23 A. 24 Despite Plaintiffs’ efforts over the past five months, no discovery has been taken to date. Plaintiffs’ Position 25 Defendants’ refusal to participate in discovery is the subject of the pending Discovery Dispute 26 Joint Report #1. 27 28 - 12 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Before Defendants removed Plaintiffs’ first-filed case, Plaintiff Hariharan served all 2 Defendants on May 16, 2011 with production requests that asked for documents produced to the 3 DOJ. Defendants have never responded to these requests or sought relief from the Court from 4 their obligation to respond. After removal, Plaintiffs again asked Defendants to produce 5 documents they produced to the DOJ. Defendants refused. On August 19, 2011, Plaintiffs asked 6 Defendants to schedule a Rule 26(f) conference “as soon as practicable.” Fed. R. Civ. P. 26(f)(1). 7 Defendants refused to meet until October 3, 2011. 8 Meanwhile, Plaintiffs agreed, as a courtesy, to extend Defendants’ deadline to respond to 9 the original complaints three times. (May 26, 2011 Stipulation Extending Time To Respond To 10 Complaint, Dkt. No. 17; July 22, 2011 Stipulation Extending Time To Respond To Complaint, 11 Dkt. No. 48; September 6, 2011 Stipulated [Proposed] Pretrial Order No. 1, Dkt. No. 63.) 12 At the Rule 26(f) conference on October 3, 2011, Defendants’ counsel were unprepared 13 and refused to discuss topics required by Rule 26 and the applicable standing orders. Defendants 14 confirmed they will refuse to produce documents or identify percipient witnesses unless the Court 15 orders otherwise. Plaintiffs served further document requests on Defendants asking for 16 documents produced to the DOJ (among other things) on October 3, 2011, following the 17 Rule 26(f) conference. Defendants’ refusal to comply with their Rule 26 obligations is the 18 subject of Discovery Dispute Joint Report #1, currently pending before Magistrate Judge Lloyd. 19 As explained above, Plaintiffs seek an order requiring that discovery proceed without 20 further delay. Plaintiffs have suggested in their report to Magistrate Judge Lloyd that discovery 21 may commence with production of documents Defendants have already produced to the DOJ and 22 identification of percipient witnesses. 23 B. 24 Plaintiffs’ statement mischaracterizes the discovery process in several ways. Defendants Defendants’ Position 25 have cooperated, and will continue to cooperate, with Plaintiffs in discovery while preserving 26 their position that discovery should be temporarily stayed pending a ruling on their joint motion 27 to dismiss. Plaintiffs served discovery on October 3, 2011 that is massive in scope and 28 - 13 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 enormously complex, seeking wide-ranging discovery related to nearly every aspect of 2 Defendants’ recruiting, hiring, promotion, and compensation practices for all of their employees 3 nationwide for over a ten-year period. Defendants’ responses are not due until November 7, 4 2011.2 Thus, Plaintiffs’ insistence that Defendants have refused to respond to discovery is simply 5 wrong. 6 At the Rule 26(f) conference, Defendants were prepared to, and did, discuss case 7 management topics, including how discovery should proceed in this case, the schedule of the 8 case, and the fact that they had taken reasonable steps to preserve evidence, including 9 electronically stored information, that might be relevant to this litigation. Indeed, the parties met 10 for two hours about case management and discovery issues. Defendants informed Plaintiffs that 11 they would file a motion for temporary stay of discovery pending resolution of the joint motion to 12 dismiss and would raise the issue as part of setting the schedule for the case at the initial case 13 management conference. Defendants informed Plaintiffs that they anticipated no difficulties 14 reaching agreement on a protective order, ESI production specification, and a stipulation 15 regarding expert discovery. 16 On October 7, the parties met again regarding Defendants’ intention to file a motion for 17 temporary stay of discovery along with the joint motion to dismiss. Defendants offered to 18 stipulate to an expedited briefing schedule on the motion for temporary stay. Further, Defendants 19 indicated that they intend to fully comply with discovery deadlines pending resolution of the 20 motion for temporary stay. To that end, Defendants agreed to exchange initial disclosures; 21 provide comments and finalize Plaintiffs’ draft protective order, ESI production specifications, 22 and stipulation regarding expert discovery; and schedule additional conferences to discuss issues 23 regarding electronically stored information. 24 25 26 27 28 2 Discovery served after Plaintiffs’ counsel filed the first case in state court was without any force or effect after Defendants’ removed the case to federal court. While the parties negotiated jurisdictional discovery related to Plaintiffs’ potential remand motion, Plaintiffs agreed to an “open ended extension” of time. Because the Parties agreed that “[D]efendants do not have an obligation to respond to the state court discovery until 30 days following any order by a federal court to remand the case,” and Plaintiffs decided not to move to remand to state court, Defendants had no obligation to respond further to Plaintiffs’ state court discovery. JOINT CASE MGMNT CONFERENCE STATEMENT - 14 Master Docket No. 11-CV-2509-LHK 944283.4 1 IX. Plaintiffs’ Position: Plaintiffs propose that the following class be certified pursuant to 2 3 Class Certification Federal Rules of Civil Procedure 23(a), 23(b)(2), and 23(b)(3): 4 All natural persons employed by Defendants in the United States on a salaried basis during the period from January 1, 2005 through January 1, 2010 (the “Class Period”). Excluded from the Class are: retail employees; corporate officers, members of the boards of directors, and senior executives of Defendants who entered into the illicit agreements alleged herein; and any and all judges and justices, and chambers’ staff, assigned to hear or adjudicate any aspect of this litigation. 5 6 7 8 9 (Complaint ¶ 30.) Plaintiffs will file a motion for class certification as early as possible following 10 sufficient discovery. As noted above, courts have routinely recognized that class actions are an 11 important mechanism for ensuring enforcement of the antitrust laws and to provide compensation 12 to victims, and this case is no different. Defendants’ Position: As explained above, Defendants contend that Plaintiffs’ 13 14 Complaint fails to state a claim upon which relief can be granted. Should any of Plaintiffs’ 15 claims survive Defendants’ joint motion to dismiss, Defendants will oppose class certification on 16 the ground that the class proposed does not meet the requirements for class certification. 17 X. Related Cases On October 18, 2011, Plaintiffs’ counsel filed a Freedom of Information Act action 18 19 against the DOJ seeking, among other things, documents Defendants provided to the DOJ, and 20 which (as with all other documentary discovery) Defendants oppose producing pending resolution 21 of their motion to stay discovery: Lieff, Cabraser, Heimann & Bernstein, LLP v. U.S. Department 22 of Justice, Antitrust Division, Case No. 11-cv-05105-HRL. Plaintiffs have asked Defendants to 23 stipulate to a proposed order relating this case to the above-captioned action. Both of the DOJ’s civil actions against Defendants have been closed and the stipulated 24 25 final judgments have been entered. See Final Judgment, Dkt. No. 17, United States v. Adobe 26 Systems Inc., et al., No. 10-cv-1629-RBW (D.D.C. Mar. 18, 2011) (regarding agreements among 27 all defendants but Lucasfilm); Order Granting Motion For Entry Of Final Judgment, Dkt. No. 7, 28 - 15 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 United States v. Lucasfilm LTD., No. 10-cv-2220-RBW (D.D.C. Jun. 3, 2011). The District Court 2 for the District of Columbia has entered injunctions prohibiting the actions Plaintiffs ask this 3 Court to enjoin and has retained jurisdiction to enforce its orders. (Id.) 4 XI. 5 Relief Plaintiffs, on their own behalf and on behalf of the Class they seek to represent, seek 6 damages to the maximum extent authorized by applicable federal and California law, including 7 treble damages, rescission, and restitution as authorized by law and according to proof at trial. 8 Plaintiffs also seek injunctive and declaratory relief and attorneys’ fees and costs. Defendants 9 dispute that any Plaintiff, or any member of the putative class, has been harmed in any way, and 10 also dispute that any Plaintiff, or member of the putative class, is entitled to any damages at all. 11 XII. 12 Settlement and ADR No settlement discussions have taken place. The parties have discussed ADR and do not 13 believe that it is appropriate at this time. 14 XIII. Consent to Magistrate Judge For All Purposes 15 The parties do not consent to have a magistrate judge conduct all further proceedings in 16 this case. 17 XIV. Other References 18 The parties do not believe that this case is suitable for reference to binding arbitration, a 19 special master, or the Judicial Panel on Multidistrict Litigation. 20 XV. 21 Narrowing of Issues Plaintiffs believe discovery will confirm the facts alleged in the Complaint and described 22 in the stipulated final judgments entered in the DOJ actions. Plaintiffs contend this conduct is 23 illegal per se under federal and California antitrust law. Plaintiffs expect to establish the 24 predicate acts quickly, if Defendants identify percipient witnesses and produce the documents 25 they already produced to the DOJ. 26 As detailed in the Joint Motion to Dismiss, Defendants believe the motion should dispose 27 of the entirety of Plaintiffs’ Complaint and respectfully request that the Court consider the issues 28 - 16 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 presented in those motions at the earliest possible date. Plaintiffs have merely alleged the 2 existence of six independent agreements, each involving only two companies. Plaintiffs fail to 3 allege any facts that could plausibly convert these bilateral agreements into the overarching 4 conspiracy Plaintiffs have alleged existed among Defendants to suppress the wages of all their 5 employees nationwide over a five-year period. And Plaintiffs similarly fail to allege any facts 6 establishing injury, either from bilateral agreements or from an “overarching” conspiracy, nor can 7 they, given that any relevant labor market that could possibly include members of the putative 8 class would be much broader than the seven named Defendants. Although it is not necessary to 9 reach this issue to resolve Defendants’ joint motion to dismiss, Defendants note that they do not 10 concede that the alleged bilateral agreements constitute per se violations under federal and 11 California antitrust law. In fact, courts have repeatedly evaluated non-solicitation agreements 12 under a rule of reason analysis and held them to be pro-competitive. 13 Plaintiffs observe that, after a lengthy investigation, the DOJ concluded that Defendants 14 engaged in per se violations of the antitrust laws that suppressed the compensation of their 15 employees. Plaintiffs do not agree that their claims are limited to allegations of a single 16 agreement among all Defendants, or that the precise shape of the conspiracy is a question that can 17 be resolved at the pleading stage. Plaintiffs do not agree that the question of injury-in-fact can be 18 resolved on a motion to dismiss. Plaintiffs also do not agree that whether Rule of Reason or per 19 se analysis applies can be determined on a motion to dismiss. In fact, Defendants’ agreements, 20 which were naked conspiracies not to recruit each others’ employees, is per se illegal. 21 Defendants’ joint motion will not dispose of the case and Defendants’ requested stay will simply 22 introduce unnecessary cost and delay. 23 XVI. Expedited Schedule 24 Plaintiffs believe their complaint is more than sufficient to state a claim and that 25 challenges to the complaint will unnecessarily delay the proceedings. Plaintiffs believe a stay of 26 discovery will unnecessarily delay the resolution of this case. 27 28 - 17 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Plaintiffs are amenable to handling this case on an expedited basis with streamlined 2 procedures. For instance, Plaintiffs believe that expedited production of documents Defendants 3 already produced to the DOJ is appropriate, in addition to identification of percipient witnesses. 4 Defendants believe that the joint motion to dismiss should dispose of the entirety of 5 Plaintiffs’ Complaint and that its consideration would expedite the resolution of the case. 6 Defendants believe the motion may be decided on the pleadings, and without any discovery. For 7 those reasons, Defendants contend that the Court should stay discovery unless and until Plaintiffs 8 can allege at least one valid claim. 9 Defendants also believe, as recognized by the Supreme Court in Twombly, 550 U.S. at 10 556, that a stay is particularly appropriate in complex antitrust cases such as this one, where the 11 burden of requiring Defendants to engage in broad, costly and invasive discovery should only be 12 shouldered if this Court determines that Plaintiffs can plead a viable claim. 13 As detailed above, Defendants have offered to stipulate to an expedited briefing schedule 14 on the motion for temporary stay of discovery. Defendants have further indicated that they intend 15 to fully comply with discovery deadlines pending resolution of the motion to stay. 16 Again, Plaintiffs do not agree that Defendants’ joint motion is proper or that it can 17 possibly dispose of the case. Furthermore, this case bears no resemblance to Twombly. In 18 Twombly, the plaintiffs failed to allege facts plausibly suggesting the defendants had violated the 19 antitrust laws. Here, the defendants have entered into stipulated judgments with the Department 20 of Justice in cases alleging they violated the Sherman Act. 21 XVII. Scheduling 22 A. 23 Plaintiffs believe that if discovery is allowed to proceed without delay (beginning with Plaintiffs’ Position 24 production of the documents Defendants already produced to the DOJ and identification of 25 percipient witnesses), trial may begin on February 17, 2014. Plaintiffs propose the following 26 schedule: 27 Event 28 Date - 18 - 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Event Date 2 Production of documents Defendants produced to the DOJ and identification of percipient witnesses: November 15, 2011 3 4 Last day for Defendants to produce employee data:3 December 15, 2011 5 Substantial completion of rolling production of other documents: April 17, 2012 Motion for class certification May 15, 2012 Class certification oppositions June 15, 2012 Class certification reply: July 13, 2012 Class Certification Hearing August 16, 2012 or at convenience of Court. 11 Discovery cutoff (non-expert): February 15, 2013 12 Rule 26 expert disclosures: March 15, 2013 13 Production of material on which experts relied per Rule 26 or stipulation of the parties (“Expert Materials”): March 20, 2013 Rule 26 supplemental expert disclosures: April 16, 2013 Production of Expert Material for supplemental expert disclosures: April 19, 2013 16 17 Discovery cutoff (expert): May 15, 2013 18 Last day to file dispositive motions: June 14, 2013 19 Dispositive motions oppositions: July 12, 2013 20 Dispositive motions replies: August 12, 2013 21 Hearing on any dispositive motions: September 19, 2013 or at 22 3 6 7 8 9 10 14 15 23 24 25 26 27 28 Based on experience in other cases, Plaintiffs believe that certain relevant statistical and other information regarding the class may be maintained in databases or other computerized systems. This sort of information is routinely produced in antitrust class actions. Ordinarily, it can be produced quickly because it requires no searching or privilege or relevancy review. Indeed, it appears Defendants have identified and analyzed this data based on their representations regarding composition of the class in their portion of Discovery Dispute Joint Report #1. (Dkt. No. 76 at 9: “Plaintiffs have alleged a putative class of over 83,000 nationwide employees . . . .”) Plaintiffs intend to specify the data they seek in this regard no later than October 20, 2011. To date, Defendants have refused to disclose their ESI systems and have not described how they maintain data that will be relevant to expert analysis regarding class-wide impact and damages. This data is responsive to requests Plaintiffs served on October 3, 2011, and includes information such as total compensation to class members before, during, and after the conspiracy period. JOINT CASE MGMNT CONFERENCE STATEMENT - 19 - Master Docket No. 11-CV-2509-LHK 944283.4 1 Event 2 Date convenience of Court. 3 Pretrial conference: January 15, 2014 4 Trial: February 17, 2014 (15 trial days) 5 6 B. 7 Defendants believe that discovery should be postponed unless and until Plaintiffs have 8 satisfied the Court that they can state at least one valid claim. Defendants accordingly propose 9 the following schedule: Defendants’ Position Date Event 10 11 Hearing on Motion for Temporary Stay December 8, 2011 12 Hearing on Motions to Dismiss January 26, 2012 13 February 26, 2012 14 If any claims survive the Motions to Dismiss, Defendants’ Written Responses and Objections to First Set of Discovery Due4 15 Deadline for Amending Pleadings May 15, 2012 16 Substantial completion of rolling production of documents (subject to discovery motion practice): July 13, 2012 Motion for class certification August 15, 2012 Class certification oppositions October 15, 2012 Class certification reply: November 15, 2012 Class Certification Hearing December 15, 2012 or at convenience of Court. 22 Discovery cutoff (non-expert): June 14, 2013 23 Rule 26 expert disclosures by the party bearing the burden of proof on an issue: July 15, 2013 Production of material on which experts relied per Rule 26 or stipulation of the parties (“Expert Materials”): July 19, 2013 25 26 Rebuttal expert disclosures: August 30, 2013 27 4 17 18 19 20 21 24 28 This proposed date and the subsequent proposed schedule is premised on initial discovery responses being due 30 days after the Court rules on Defendants’ joint motion to dismiss. JOINT CASE MGMNT CONFERENCE STATEMENT - 20 - Master Docket No. 11-CV-2509-LHK 944283.4 1 Event Date 2 Production of Expert Materials for rebuttal expert disclosures: September 5, 2013 Discovery cutoff (expert): October 15, 2013 Last day to file dispositive motions: November 15, 2013 Dispositive motions oppositions: December 22, 2013 Dispositive motions replies: January 22, 2014 Hearing on any dispositive motions: February 14, 2014 or at convenience of Court. Pretrial conference: March 15, 2014 Trial: April 15, 2014 3 4 5 6 7 8 9 10 11 12 XVIII. Trial Plaintiffs demand trial by jury. Plaintiffs currently estimate the length of trial to be 15 13 14 days. 15 XIX. Disclosure of Non-party interested Entities or Persons 16 All parties have filed the “Certification of Interested Entities or Persons” required by Civil 17 Local Rule 3-16. Other than the named parties, there are no entities known by the parties to have 18 either: (i) a financial interest in the subject matter in controversy or in a party to the proceeding; 19 or (ii) any other kind of interest that could be substantially affected by the outcome of the 20 proceeding. 21 22 23 24 25 26 27 28 - 21 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Dated: October 20, 2011 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 2 By: 3 4 Joseph R. Saveri (State Bar No. 130064) Eric B. Fastiff (State Bar No. 182260) Brendan P. Glackin (State Bar No. 199643) Dean M. Harvey (State Bar No. 250298) Anne B. Shaver (State Bar No. 255928) Katherine M. Lehe (State Bar No. 273472) 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 5 6 7 8 9 Interim Lead Counsel for Plaintiffs and the Proposed Class 10 11 /s/ Joseph R. Saveri Joseph R. Saveri Dated: October 20, 2011 O’MELVENY & MYERS LLP 12 By: 13 14 /s/ Michael F. Tubach Michael F. Tubach George Riley Michael F. Tubach Lisa Chen Christina J. Brown Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 15 16 17 18 Attorneys for Defendant APPLE INC. 19 20 21 22 23 24 25 26 27 28 - 22 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Dated: October 20, 2011 KEKER & VAN NEST LLP 2 By: 3 4 John Watkins Keker Daniel Purcell Eugene Morris Page Paula Lenore Blizzard 710 Sansome Street San Francisco, CA 94111 Telephone: (415) 381-5400 Facsimile: (415) 397-7188 5 6 7 8 Attorneys for Defendant LUCASFILM LTD. 9 10 /s/ Daniel Purcell Daniel Purcell Dated: October 20, 2011 JONES DAY 11 By: 12 13 /s/ David C. Kiernan David C. Kiernan 17 Robert A. Mittelstaedt Craig A. Waldman David C. Kiernan Catherine T. Broderick Craig E. Stewart 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 18 Attorneys for Defendant ADOBE SYSTEMS, INC. 14 15 16 19 20 21 22 23 24 25 26 27 28 - 23 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Dated: October 20, 2011 JONES DAY 2 By: 3 4 /s/ Robert A. Mittelstaedt Robert A. Mittelstaedt 8 Robert A. Mittelstaedt Craig A. Waldman David C. Kiernan Catherine T. Broderick Craig E. Stewart 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 9 Attorneys for Defendant INTUIT INC. 5 6 7 10 Dated: October 20, 2011 MAYER BROWN LLP 11 By: 12 13 Lee H. Rubin Edward D. Johnson Donald M. Falk Two Palo Alto Square 3000 El Camino Real, Suite 300 Palo Alto, CA 94306-2112 Telephone: (650) 331-2057 Facsimile: (650) 331-4557 14 15 16 17 Attorneys for Defendant GOOGLE INC. 18 19 /s/ Lee H. Rubin Lee H. Rubin Dated: October 20, 2011 BINGHAM McCUTCHEN LLP 20 21 By: 22 25 Donn P. Pickett Frank M. Hinman Zachary J. Alinder Three Embarcadero Center San Francisco, CA 94111 Telephone: (415) 393-2000 Facsimile: (415) 383-2286 26 Attorneys for Defendant INTEL CORPORATION 23 24 /s/ Zachary J. Alinder Zachary J. Alinder 27 28 - 24 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK 1 Dated: October 20, 2011 COVINGTON & BURLING LLP 2 By: 3 4 /s/ Emily J. Henn Emily Johnson Henn 6 Robert T. Haslam, III Emily Johnson Henn 333 Twin Dolphin Drive, Suite 700 Redwood City, CA 94065 Telephone: (650) 632-4700 7 Attorneys for Defendant PIXAR 5 8 ATTESTATION: Pursuant to General Order 45, Part X-B, the filer attests that concurrence in 9 the filing of this document has been obtained from all signatories. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 944283.4 JOINT CASE MGMNT CONFERENCE STATEMENT Master Docket No. 11-CV-2509-LHK