Campbell et al v. Facebook Inc.

Filing 18

MOTION to Consolidate Cases 13-CV-05996 and 14-CV-00307 filed by Matthew Campbell, Michael Hurley. Responses due by 4/4/2014. Replies due by 4/11/2014. (Attachments: # 1 Declaration Michael W. Sobol, # 2 Exhibit A to Sobol Declaration, # 3 Declaration Hank Bates, # 4 Exhibit A to Bates Declaration, # 5 Declaration Jeremy Lieberman, # 6 Exhibit A to Lieberman Declaration, # 7 Proposed Order)(Gardner, Melissa) (Filed on 3/21/2014)

Download PDF
1 2 3 4 5 Michael W. Sobol (State Bar No. 194857) msobol@lchb.com Melissa Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 6 7 8 9 10 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 Jeremy A. Lieberman Lesley F. Portnoy info@pomlaw.com POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212.661.1100 Facsimile: 212.661.8665 Patrick V. Dahlstrom pdahlstrom@pomlaw.com POMERANTZ, LLP 10 S. La Salle Street, Suite 3505 Chicago, Illinois 60603 Telephone: 312.377.1181 Facsimile: 312.377.1184 Attorneys for Plaintiff David Shadpour 11 12 13 14 15 16 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 17 18 Attorneys for Plaintiffs Matthew Campbell and Michael Hurley 19 United States District Court 20 Northern District of California 21 22 MATTHEW CAMPBELL and MICHAEL HURLEY, on behalf of themselves and all others similarly situated, 23 24 25 Plaintiffs, Case No. C 13-5996 PJH PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL Judge: v. Honorable Phyllis J. Hamilton FACEBOOK, INC., 26 Defendant. 27 28 1162216.1 MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 Plaintiffs in the related actions Shadpour v. Facebook, No. 14-CV-00307 (N.D. Cal.), and 2 Campbell et al. v. Facebook, No. 13-CV-05996 (N.D. Cal.) (hereinafter “Plaintiffs”), through 3 their counsel of record, hereby submit this Motion to Consolidate Related Actions and Appoint 4 Interim Counsel, and request entry of the concurrently submitted [Proposed] Order No. 1 5 (“Proposed Order”). 6 I. 7 CONSOLIDATION OF THE ACTIONS PURSUANT TO RULE 42(a) Under Federal Rule of Civil Procedure 42(a), this Court has discretion to consolidate 8 actions if they “involve a common question of law or fact.” The Shadpour and Campbell actions, 9 which the Court has already ordered be related under Local Rule 3-12, should now be 10 consolidated. See 2.3.2014 Order (Campbell Dkt. No. 15). These actions are predicated on 11 substantially similar factual allegations, and they assert the same state law claims. Consolidation 12 will save the Court and the parties considerable time and expense. 13 II. 14 ORGANIZATION OF PLAINTIFFS’ COUNSEL To facilitate the efficient and ordered management of the consolidated actions, Plaintiffs 15 seek entry of an order appointing Plaintiffs’ Executive Committee, Co-Lead Counsel, and 16 Plaintiffs’ Liaison Counsel. 17 A. 18 Plaintiffs seek to appoint an Executive Committee composed of representatives from the Plaintiffs’ Executive Committee 19 following three law firms: Lieff, Cabraser, Heimann & Bernstein, LLP (“LCHB”); Carney, Bates, 20 & Pulliam, PLLC (“CBP”), and Pomerantz, LLP (“Pomerantz”). 21 The Plaintiffs’ Executive Committee shall: 22 1. Consult on all major strategic decisions in this litigation; 23 2. Fund the necessary and appropriate costs of discovery and other common benefit 24 efforts; 25 3. 26 Maintain adequate time and disbursement records covering services as designated counsel; and 27 4. Encourage full cooperation and efficiency among all Plaintiffs’ counsel. 28 1162216.1 -2MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 B. 2 Plaintiffs seek to appoint CBP and LCHB as Co-Lead counsel. Co-Lead Counsel shall be 3 responsible for coordinating the activities of Plaintiffs at all stages of the consolidated Campbell 4 and Shadpour actions, and any subsequently filed cases which are related (“the Litigation”). Co- 5 Lead Counsel shall also have the following responsibilities: Co-Lead Counsel 1. Serve as the sole spokespersons on behalf of the Plaintiffs and the class at all court 6 appearances or mediation sessions in the Litigation; 7 2. Serve as the sole contact persons between Plaintiffs’ counsel and Defendant’s counsel 8 regarding the prosecution, mediation, or settlement of the Litigation. 9 3. Serve as the sole spokespersons for Plaintiffs’ counsel appearing in any subsequently 10 filed cases which are related, coordinated, or consolidated with the Litigation; 11 4. Schedule and lead meetings of Plaintiffs’ Executive Committee or of other Plaintiffs’ 12 counsel; 13 5. Enter into stipulations with opposing counsel, as necessary, for the conduct of the 14 Litigation. 15 6. Coordinate and assign all work among Plaintiffs’ counsel, including responsibilities 16 17 for: 18 a. briefing and argument of motions; 19 b. the initiating and obtaining discovery propounded by Plaintiffs; 20 c. responding to discovery propounded to Plaintiffs; 21 d. briefing and conducting mediation or settlement; 22 e. pretrial preparation; 23 f. trial; 24 g. post-trial proceedings; and 25 h. prosecuting or defending any appeal. 26 C. 27 Plaintiffs seek to appoint LCHB as Plaintiffs’ Liaison Counsel, which shall: Plaintiffs’ Liaison Counsel 28 1162216.1 -3MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 1. Maintain an up-to-date, comprehensive Service List of Plaintiffs in the Litigation 2 and promptly advise the Court and Defendant’s counsel of changes to Plaintiffs’ 3 Service List; 4 2. Receive and distribute to Plaintiffs’ counsel, as appropriate, Orders, notices, and 5 correspondence from the Court, to the extent such documents are not electronically 6 filed; 7 3. Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery pleadings 8 and correspondence and other documents from Defendant’s counsel that are not 9 electronically filed; 10 4. Maintain a file-endorsed copy of the Proposed Order, if adopted by the Court, and 11 serve the same on the parties and/or their attorneys in any actions later instituted 12 in, removed to, or transferred to, these proceedings; and 13 5. 14 15 Communicate with the Court, on behalf of the Plaintiffs’ Executive Committee, concerning scheduling and other administrative matters. No motion or other pleading shall be filed by any Plaintiff except through Plaintiffs’ 16 Liaison Counsel. 17 D. 18 Plaintiffs request that this Court appoint LCHB, CBP, and Pomerantz to serve as Interim Interim Class Counsel 19 Class Counsel pursuant to Federal Rule of Civil Procedure 23(g). The appointment of Interim 20 Class Counsel will benefit the Court, Defendant and the proposed class because it will provide an 21 organized, managed structure that can only be achieved through the appointment of a unified 22 voice to advocate the interests of the several plaintiffs. As described below, these firms are more 23 than qualified to be appointed Interim Class Counsel, and have already demonstrated key 24 qualities for the position. 25 Rule 23(g)(3) provides that, “[t]he court may designate interim counsel to act on behalf of 26 the putative class before determining whether to certify the action as a class action.” See, e.g., In 27 re Bank of Am. Credit Prot. Mktg. & Sales Practices Litig., 2011 U.S. Dist. LEXIS 135674, *17 28 (N.D. Cal. Nov. 23, 2011) (Henderson, J.) (“The members of Plaintiffs' Executive Committee 1162216.1 -4MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 shall serve as Interim Class Counsel pursuant to Fed. R. Civ. P. 23(g)(2)(A) until further order of 2 the Court.”). Rule 23(g), which was added to the Federal Rules of Civil Procedure in 2003, 3 provides that: 4 (1) 5 In appointing class counsel, the court: (A) 6 must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. 7 8 9 10 11 12 13 Fed. R. Civ. P 2(g)(1)(A). The Advisory Committee Notes on Rule 23(g) provide context for its application: “Rule 14 15 23(g) is new. It responds to the reality that the selection and activity of counsel are often 16 critically important to successful handling of a class action . . . .This subdivision recognizes the 17 importance of class counsel, states the obligation to represent the interest of the class, and 18 provides a framework for selection of class counsel.” Fed. R. Civ. P. 23(g) advisory committee 19 note. LCHB, CBP, and Pomerantz meet the requirements of Rule 23(g) for appointment as 20 Interim Class Counsel. 1. 21 Proposed Interim Class Counsel Identified and Investigated the Potential Claims in this Action 22 LCHB, CBP, and Pomerantz identified the problems at issue, have been in contact with, 23 24 or have been contacted by, dozens of prospective class members, and began investigating the 25 claims and law that comprise the various actions. Before filing the initial complaint, in addition to in-depth legal research, proposed Interim 26 27 Class Counsel conducted extensive factual research relating to relevant technical capabilities of 28 Defendant, the Defendant’s course of conduct, as well any agreements that Defendant may claim 1162216.1 -5MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 govern the transactions. This multifaceted investigation became the basis for the detailed factual 2 and legal analysis being developed among members of the Executive Committee to formulate a 3 master consolidated complaint. Through this effort, proposed counsel has developed a detailed 4 and sophisticated understanding of the factual and legal issues involved in this matter.1 5 2. 6 7 Proposed Interim Class Counsel Bring a Wealth of Experience to This Matter As individuals, the proposed Interim Class Counsel represent a vast depth of experience in 8 class action and complex litigation. Each firm offers the expertise of extensive experience in 9 nationwide class actions and complex multidistrict matters. As demonstrated in more detail in 10 each firm’s individual declaration, proposed Interim Class Counsel have served as lead counsel or 11 in executive committee positions for some of the largest class actions in the country over the last 12 30 years. Accordingly, proposed Interim Class Counsel provide excellent experience in handling 13 class and complex litigation, as well as in-depth knowledge of the applicable law that are the 14 hallmarks of class counsel under Rule 23(g).2 15 3. 16 Proposed Interim Class Counsel Have Proven Knowledge of the Applicable Law 17 The proposed Interim Class Counsel have many years of experience litigating cases 18 involving the privacy rights of consumers. For example, attorneys from LCHB acted as co- 19 counsel for multiple cases involving the federal Wiretap Act, including In re Google Inc. Street 20 View Electronic Communications Litigation, No. 3:10-md-021784-CRB (N.D. Cal.), Hepting v. 21 AT&T Corp., Case No. C-06-0672-VRW (N.D. Cal.), and In re Carrier IQ Privacy Litigation, 22 MDL No. 2330.3 23 24 25 26 1 See Sobol Decl. ¶ 8; Bates Decl. ¶ 3; Lieberman Decl. ¶ 4. See Sobol Decl. ¶¶ 2-4, Ex. A (LCHB Firm Resume); Bates Decl. ¶ 2, Ex. A (CBP Firm Resume); Lieberman Decl. ¶ 2, Ex. A (Pomerantz Firm Resume). 3 Sobol Decl. ¶ 3. 2 27 28 1162216.1 -6MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 4. Proposed Interim Class Counsel Will Commit The Resources Necessary To Prosecute This Matter 2 Once again, individually, the firms’ resources are established by past successes. As a 3 4 group, there is no question that LCHB, CBP, and Pomerantz have more than adequate resources 5 to commit to this matter. Each of the firms has a practice built around class and complex 6 litigation, and a history of committing all resources necessary to generate a recovery for the 7 putative Class in this matter.4 8 III. Plaintiffs respectfully request that this Court enter the concurrently submitted [Proposed] 9 10 CONCLUSION Pre-Trial Order No. 1, or such relief as the Court may deem proper. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 See Sobol Decl. ¶¶ 8-10; Bates Decl. ¶¶ 5-6; Lieberman Decl. ¶ 6. 1162216.1 -7MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 Dated: March 21, 2014 2 By: /s/ Michael W. Sobol Michael W. Sobol Michael W. Sobol (State Bar No. 194857) msobol@lchb.com Melissa Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 3 4 5 6 7 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 8 9 10 11 12 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 13 14 15 16 17 18 19 Attorneys for Plaintiffs Matthew Campbell and Michael Hurley 20 21 22 23 24 25 26 27 28 1162216.1 -8MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL 1 Dated: March 21, 2014 2 By: /s/ Jeremy A. Lieberman Jeremy A. Lieberman Lesley F. Portnoy info@pomlaw.com POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: 212.661.1100 Facsimile: 212.661.8665 3 4 5 6 Patrick V. Dahlstrom pdahlstrom@pomlaw.com POMERANTZ, LLP 10 S. La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: 312.377.1181 Facsimile: 312.377.1184 7 8 9 10 Jon Tostrud (State Bar No. 199502) jtostrud@tostrudlaw.com TOSTRUD LAW GROUP, PC 1925 Century Park East, Suite 2125 Los Angeles, CA 90067 Telephone: 310.278.2600 Facsimile: 310.278.2640 11 12 13 14 Attorneys for Plaintiff David Shadpour 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1162216.1 -9MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL