Rupa Marya v. Warner Chappell Music Inc

Filing 89

JOINT REPORT Rule 26(f) Discovery Plan "JOINT REPORT ON PARTIES' PLANNING MEETING" filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel.. (Manifold, Betsy)

1 FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
2
[e-mail]
RACHELE R. RICKERT (190634)
3
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
Facsimile: 619/234-4599
8
9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class
10
UNITED STATES DISTRICT COURT
11

CENTRAL DISTRICT OF CALIFORNIA -

12

WESTERN DIVISION

13
14 GOOD MORNING TO YOU
15 PRODUCTIONS CORP., et al.,
16
17
18

Plaintiffs,
v.

19 WARNER/CHAPPELL MUSIC,
20 INC., et al.
21

Defendant.

22
23
24
25
26
27
28

22807218.1

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Lead Case No. CV 13-04460-GHK (MRWx)
JOINT REPORT ON PARTIES’
PLANNING MEETING

Date:
Time:
Room:
Judge:

February 24, 2014
1:30 p.m.
650
Hon. George H. King, Chief Judge

1

Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure (“FRCP”), Civil

2 Local Rule 26-1, and the Court’s Orders entered October 21, 2013 and December 13,
3 2013 (Dkts. 71, 80, respectively), plaintiffs Good Morning To You Productions
4 Corp. (“GMTY”), Robert Siegel (“Siegel”), Rupa Marya (“Marya”), and Majar
5 Productions, LLC (“Majar”) (collectively the “Plaintiffs”) and defendants
6 Warner/Chappell

Music,

Inc.

and

Summy-Birchard,

Inc.

(together

7 “Warner/Chappell” or “Defendants”) (Plaintiffs and Defendants are jointly referred
8 to herein as the “Parties”) submit this Joint Report on Parties’ Planning Meeting,
9 through their respective counsel of record, which was jointly prepared subsequent to
10 the in-person meeting of counsel conducted on January 16, 2014 (hereafter the
11 “Parties’ Planning Meeting”).
12

LIMITATION OF JOINT REPORT AS TO MERITS ISSUES WITH

13

RESPECT TO CLAIM ONE

14

By Order entered October 21, 2013 (Dkt. 71), Claim One of Plaintiffs’

15 Operative Complaint was BIFURCATED from all other claims through summary
16 judgment, and all other claims, including any discovery specific to such claims, are
17 STAYED until further order by the Court. October 21, 2013 Order (Dkt. 71 at 4).
18 Defendants’ pending motion to dismiss with respect to the stayed claims was
19 DENIED without prejudice as premature with leave to refile such motions after the
20 stay is lifted. Id. The Court further dismissed the Operative Complaint on behalf of
21 Plaintiffs Siegel and Majar with leave to amend to plead delayed accrual or tolling of
22 the Copyright Act’s three-year statute of limitations.
23

On November 6, 2013, Plaintiffs filed their Third Amended Consolidated

24 Complaint (“TAC”). The TAC includes, among other things, amended claims on
25 behalf of Plaintiffs Siegel and Majar relating to their theories of delayed accrual or
26 tolling of the Copyright Act’s three-year statute of limitations. On December 11,
27 2013, Defendants’ answered Claim One of Plaintiffs’ TAC and did not respond to
28
-1-

1

Plaintiffs’ other claims for relief absent further order by this Court. See October 21,

2

2013 Order (Dkt. 71 at 4); Defs. Ans. to Pls. TAC (Dkt. 79) at 1 n.1.

3

Based on the Court’s October 21, 2013 Order bifurcating Claim One from the

4

other claims in the TAC, the Parties’ Planning Meeting was limited to Plaintiffs’

5

Claim One. In addition, to further the purposes of the bifurcation and to defer

6

potentially unnecessary discovery unless and until the action proceeds past a motion

7

for summary judgment, Warner/Chappell proposed, and Plaintiffs agreed, that the

8

Parties recommend that the first phase of the bifurcated action be limited to the

9

merits issues involved in Claim One, and need not include discovery or motion

10

practice directed to the allegations of Plaintiffs Siegel and Majar relating to their

11

theories of delayed accrual or tolling of the Copyright Act’s three-year statute of

12

limitations. If Claim One proceeds past summary judgment on the merits issues,

13

Warner/Chappell would be permitted to take discovery and file motions relating to

14

such theories of delayed discovery or tolling, whether on behalf of Plaintiffs Siegel

15

and Majar or any other members of the putative class.

16

I.

ITEMS LISTED IN THE DECEMBER 13, 2013 ORDER

17

A.

18

The Court has subject-matter jurisdiction over Claim One of the action

19

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to relief arising

20

under the Copyright Act, 17 U.S.C. §§ 101 et seq.; and pursuant to the Declaratory

21

Judgment Act, 28 U.S.C. §§ 2201 et seq. Plaintiffs also have alleged jurisdiction

22

pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental

23

jurisdiction pursuant to 28 U.S.C. § 1367 over the non-federal claims in the TAC.

24

Warner/Chappell does not admit the latter bases for subject matter jurisdiction, but

25

that issue is irrelevant for purposes of Claim One, as to which the Court has

26

jurisdiction.

Basis For Subject Matter Jurisdiction

27
28

-2-

1

B.

2

Statement of Factual and Legal Bases of Claims and Defenses
1.

3

Plaintiffs’ Statement
a.

Plaintiffs’ Statement Regarding Factual Basis

4

This is an action to declare that Defendants do not own a copyright to the

5

world’s most popular song, Happy Birthday to You (the “Song”), that if Defendants

6

own any copyright to the Song, it is limited to two specific piano arrangements or an

7

obscure second verse that has no commercial value, that any other copyright to the

8

Song that Defendants may own or ever owned are invalid or have expired, and that

9

the Song is dedicated to public use and in the public domain; and in turn to declare

10

that Defendants must return the substantial and allegedly unlawful licensing fees

11

collected by defendant Warner/Chappell pursuant to its allegedly wrongful assertion

12

of copyright ownership of the Song.

13

According to the United States Copyright Office (“Copyright Office”), a

14

“musical composition consists of music, including any accompanying words, and is

15

normally registered as a work of the performing arts.” Copyright Office Circular

16

56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1

17

(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a

18

musical composition generally is the composer, and the lyricist (if a different

19

person). Id.

20

More than 120 years after the melody to which the simple lyrics of Happy

21

Birthday to You is set was first published, defendant Warner/Chappell, based on

22

Plaintiffs’ allegations, wrongfully and unlawfully claims that it owns the copyright to

23

the Song, and with that copyright the exclusive right to authorize the Song’s

24

reproduction, distribution, and public performances pursuant to federal copyright

25

law. Plaintiffs allege that Defendants have collected millions of dollars in unlawful

26

licensing fees from Plaintiffs as well as others unwilling or unable to challenge its

27

ownership claims.

28

-3-

1

Plaintiffs allege that if Defendants owned or owns any copyrights to the Song,

2

those rights were and are limited to the extremely narrow right to reproduce and

3

distribute specific piano arrangements for the Song, or an obscure second verse that

4

has no commercial value, which were published in 1935, and that if the Defendants

5

ever owned a copyright to any other part of the Song itself, that copyright was invalid

6

or expired no later than 1921. No court has ever adjudicated either the scope or

7

validity of the Defendants’ claimed interest in the Song, nor in the Song’s melody or

8

its familiar lyrics, which are, themselves, independent works.

9

Plaintiffs GMTY, Siegel, Marya, and Majar on behalf of themselves and all

10

others similarly situated, seek a declaration that the Song is dedicated to public use

11

and is in the public domain as well as monetary damages and restitution of all the

12

unlawful licensing fees that Defendants have improperly collected from Plaintiffs

13

and all other Class members.

14

b.

Plaintiffs’ Legal Basis for Claim One

15

Plaintiffs’ TAC alleges claims for: (1) Declaratory Judgment (28 U.S.C. §

16

2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. § 2202); (3)

17

Violations of California’s Unfair Competition Laws (Bus. & Prof. Code §§ 17200 et

18

seq.); (4) Breach of Contract; (5) Common Law Money Had and Received; (6)

19

Rescission for Failure of Consideration; and (7) Violations of California’s False

20

Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against Defendants.

21

At the October 7, 2013, hearing on Defendants’ Motion to Dismiss (Dkt. 52),

22

the Parties agreed that the most efficient way to proceed in this case would be to

23

bifurcate Claim One from the six other claims for the purposes of discovery and

24

summary judgment.

25

BIFURCATED these proceedings as follows: (1) Claim One is bifurcated from all

26

other claims through judgment; and (2) all other claims, including discovery specific

27

to such claims, are STAYED until further order by the Court. Id. In compliance

See October 21, 2013 Order (Dkt. 71).

28

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The Court

1

with the stay set forth in the October 21, 2013 Order, Plaintiffs limit their legal

2

analysis herein to Claim One pending further order of the Court.

3

(a)

Claim One – Declaratory Judgment Pursuant to 28 U.S.C. § 2201

4

Plaintiff brings Claim One individually on behalf of themselves and on behalf

5

of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

6

Procedure. Plaintiffs seek adjudication of an actual controversy arising under the

7

Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ purported

8

copyright claim to the Song.

9

Copyright Act does not bestow upon the Defendants the rights they have asserted and

10

enforced against Plaintiffs and the other members of the Class. This is because

11

either: (a) the 1935 registrations E51988 and E51990, under which the Defendants

12

claim those copyrights, and the resulting copyrights, do not purport to cover and do

13

not cover the familiar lyrics to the Song, but instead are limited just to the particular

14

arrangements written by Forman or Orem (and, in the case of E51988, the obscure

15

second verse which has no commercial value); or (b) if and to the extent that those

16

copyrights purport to cover the familiar lyrics to the Song, the copyrights are invalid

17

or have expired.

Plaintiffs seek the Court’s declaration that the

18

Defendants assert that they are entitled to mechanical and performance

19

royalties pursuant to 17 U.S.C. § 115 for the creation and distribution of

20

phonorecords and digital downloads of the Song, under threat of a claim of copyright

21

infringement.

22

Plaintiff GMTY entered into a Synchronization License agreement to use the

23

Song and paid Warner/Chappell the sum of $1,500 for that Synchronization License

24

based upon its claim of copyright ownership. BIG FAN, assignor of plaintiff Siegel,

25

entered into the Synchronization License agreement to use the Song and paid

26

Warner/Chappell the sum of $3,000 for that Synchronization License based upon its

27

claim of copyright ownership. Plaintiff Marya paid defendant Warner/Chappell the

28

sum of $455 as a compulsory mechanical license royalty to use the Song in her

-5-

1

album based upon Warner/Chappell’s claim of copyright ownership. Plaintiff Majar

2

paid Warner/Chappell a licensing fee in the sum of $5,000 pursuant to its claim of

3

copyright ownership, in order for Plaintiff Majar to use the Song in an award

4

winning documentary film: No Subtitles Necessary:

5

Warner/Chappell’s demand to each plaintiff was coercive in nature, and each

6

individual plaintiff involuntarily entered into the respective license agreement.

Lázló & Vilmos.

7

Plaintiffs’ claim presents a justiciable controversy because each plaintiff’s

8

agreement to pay defendant Warner/Chappell and the actual payment to

9

Warner/Chappell

for

use

of

the

Song

was

the

involuntary

result

of

10

Warner/Chappell’s assertion of a copyright and the risk that each individual plaintiff

11

would be exposed to substantial statutory penalties under the Copyright Act had it

12

failed to enter such an agreement and pay Warner/Chappell the price it demanded.

13

Plaintiffs seek the Court’s determination as to whether Defendants are entitled

14

to assert ownership of the copyright to Happy Birthday to You against Plaintiffs

15

pursuant to the Copyright Act as Defendants claim, or whether Defendants are

16

wielding a false claim of ownership to inhibit Plaintiffs’ use and enjoyment (and the

17

public’s use and enjoyment) of the Song, which is rightfully in the public domain.

18

More specifically, the 1893 and 1896 copyrights to the original and revised

19

versions of Song Stories for the Kindergarten, which contained the song Good

20

Morning to All, were not renewed by Summy or Summy Co. and accordingly expired

21

in 1921 and 1924, respectively. Likewise, the 1893 copyright to Song Stories for the

22

Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which

23

contained Good Morning to All, and the 1907 copyright to Good Morning to All were

24

not renewed by Summy Co. before Summy Co. was dissolved in 1920 and

25

accordingly, those copyrights expired in 1921, 1924, 1927 and 1935, respectively. In

26

addition, the 1893, 1896, 1899, and 1907 copyrights to Good Morning to All were

27

forfeited by the republication of Good Morning to All in 1921 without proper notice

28

of its original 1893 copyright.

-6-

1

The registration certificates for The Elementary Worker and His Work in 1912,

2

Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, which did not

3

attribute authorship of the lyrics to Happy Birthday to You to anyone, are prima facie

4

evidence that the lyrics were not authored by either Patty or Mildred Hill.

5

The piano arrangements for Happy Birthday to You published by Summy Co.

6

in 1935 (Reg. Nos. E51988 and E51990): (a) do not give Warner/Chappell

7

copyrights to the familiar lyrics to the Song, but instead are limited just to the

8

particular musical arrangements written by Forman or Orem (and, in the case of

9

E51988, the obscure second verse which has no commercial value), who did not

10

write the popular lyrics to the Song; and (b) were not eligible for federal copyright

11

protection because those works did not contain original works of authorship, except

12

to the extent of the piano arrangements themselves.

13

The 1935 copyrights pertained only to the piano arrangements or the obscure

14

second verse, not to the melody or familiar first verse lyrics of the Song, which lyrics

15

were not written by Forman or Orem.

16

If declaratory relief is not granted, the Defendants will continue to wrongfully

17

assert the exclusive copyright to the Song at least until 2030, when the current term

18

of the copyright expires under existing copyright law.

19

Plaintiffs therefore request a declaration that:

20

(a)

21

exclusive right to reproduce, distribute, or publicly perform the Song;

22

(b)

23

two specific piano arrangements or an obscure second verse that has no

24

commercial value,

25

(c)

26

ever owned are invalid or have expired;

27

(d)

28

a license for use of the Song; and

the Defendants do not own the copyright to, or possess the
if the Defendants own any copyright to the Song, it is limited to

any other copyright to the Song that the Defendants may own or
the Defendants do not own the exclusive right to demand or grant

-7-

1

(e)

2

use.

3

the Song is in the public domain and is dedicated to the public
2.

Warner/Chappell’s Statement Regarding Plaintiffs’ Claim One

4

Warner/Chappell and its predecessors-in-interest own and have owned the

5

copyright to the lyrics to the musical composition entitled Happy Birthday to You.

6

The United States Copyright Office registered the copyright in December 1935.

7

Under the Copyright Act, Warner/Chappell’s copyright expires in December 2030.

8

17 U.S.C. § 304(b). While the Plaintiffs have each requested and obtained licenses

9

from Warner/Chappell for their respective commercial uses of the lyrics to Happy

10

Birthday to You, Plaintiffs now come to the Court challenging Warner/Chappell’s

11

longstanding and uninterrupted exercise of its copyright interests in this musical

12

composition.

13

Warner/Chappell is the owner of copyright registration certificate E51990,

14

“Happy Birthday to You,” issued in December 1935, to Warner/Chappell’s

15

predecessor-in-interest, Clayton F. Summy Co.

16

familiar lyrics to Happy Birthday to You.

17

presumption of ownership by Warner/Chappell. Contrary to how Plaintiffs would

18

like to proceed, the burden is on them to disprove the validity of Warner/Chappell’s

19

copyright and the facts stated in the registration certificate. This is not an issue of

20

Warner/Chappell’s affirmative defense, but rather a failure of proof that will be fatal

21

to Plaintiffs’ claim for declaratory relief (and, along with it, all other claims in

22

Plaintiffs’ Complaint).

Certificate E51990 covers the

The copyright registration raises a

23

Under the Copyright Act and Ninth Circuit precedent, Warner/Chappell’s

24

certificate E51990 “constitute[s] prima facie evidence of the validity of the copyright

25

and of the facts stated in the certificate.” 17 U.S.C. § 410(c). Warner/Chappell does

26

“not have to produce any evidence” to substantiate either the validity of the copyright

27
28

or the facts stated in the registration certificate. Warner/Chappell “is presumed to
own a valid copyright, 17 U.S.C. § 410(c), and the facts stated therein, including the
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1

chain of title … are entitled to the presumption of truth.” United Fabrics Int’l, Inc. v.

2

C&J Wear Inc., 630 F.3d 1255, 1258 (9th Cir. 2011).

3

Certificate E51990 applies on its face to a “published musical composition”

4

entitled “Happy Birthday to You,” and the listing under the byline is as follows: “By

5

Mildred J. Hill, arr. by Preston Ware Orem;* pf., with words.” (Emphasis added.)

6

The certificate further states: “(© is claimed on arrangement as easy piano solo with

7

text).” (Emphasis added.) The registration certificate lists the date of publication as

8

December 6, 1935, and states that copies were received and registered in the

9

Copyright Office on December 9, 1935. All of this, as well as the validity of the

10

copyright, is prima facie presumed true in this litigation.

11

In response to the Court’s Order that Plaintiffs replead the bases for their

12

declaratory judgment claim, Plaintiffs have alleged that (1) certificate E51990 is

13

limited to a particular piano arrangement and does not cover the “popular” lyrics to

14

Happy Birthday to You, and (2) the work published under this copyright was not

15

original, except with respect to the piano arrangement. Plaintiffs have been, and

16

continue to be, less than clear about what evidence they believe they have that will

17

rebut the presumptions afforded by certificate E51990. Warner/Chappell believes

18

that Plaintiffs will not be able to rebut the presumptions.

19

First, Plaintiffs cannot show that the registration certificate was not intended to

20

cover the lyrics to Happy Birthday to You. As noted above, certificate E51990

21

expressly states that copyright is claimed on “arrangement as easy piano solo with

22

text” (emphasis added). The certificate also describes the copyrighted material as

23

“pf. [“pianoforte,” or piano], with words” (emphasis added). The references to “text”

24

and “words” can only mean the lyrics to Happy Birthday to You. There is no text or

25
26
27
28

words on which copyright could have been intended to be claimed other than those
lyrics.
Second, Plaintiffs cannot rebut the presumption that the lyrics are validly
copyrighted. To support their claim, Plaintiffs allege that these lyrics were published
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1

on various occasions prior to the December 1935 registration. Even if true, this

2

would not show that the author of the lyrics copyrighted under certificate E51990

3

copied those lyrics from somewhere else. Copyright law requires originality, not

4

novelty. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

5

Accordingly, Plaintiffs will not be able to satisfy their burden of overcoming

6

Warner/Chappell’s ownership of a valid copyright to the lyrics to Happy Birthday to

7

You. Warner/Chappell will move for summary judgment on Claim One of Plaintiffs’

8

Third Amended Consolidated Complaint.

9

Warner/Chappell has a statute of limitations defense to the claims of any

10

Plaintiff who licensed Happy Birthday to You more than three years before their

11

complaint was filed. The Copyright Act’s three-year statute of limitations, 17 U.S.C.

12

§ 507(b), governs the declaratory relief claim. In the interest of minimizing the

13

needless expense of litigating Plaintiff Majar’s and Plaintiff Siegel’s allegations of

14

delayed accrual or tolling, Warner/Chappell proposes to reserve its challenges to

15

those allegations unless and until the litigation reaches a second phase.

16

C.

17

The Parties met and conferred and believe that the discovery and briefing

18

related to class certification should be deferred until after the Court decides the

19

Parties’ joint summary judgment motion on Claim One of the TAC. The Parties are

20

prepared to discuss their position with the Court at the Scheduling Conference.

Motion for Class Certification Deadlines

21

D.

22

As to the merits issues with respect to Claim One only, and excluding

23

discovery and motion practice with respect to any theory of delayed accrual or tolling

24

(see Statement Re Limitation, pages 1-2, supra), the Parties have agreed to the

25
26
27
28

Discovery Completion

following pre-trial discovery plan:
1.

Initial Rule 26(f) Disclosures: Completed on January 30, 2014, as
required.

2.

Discovery on Claim One Cut-Off: June 27, 2014.
- 10 -

1

3.

Discovery Motions Deadline: May 30, 2014.

2

As to the merits issues on Claim One only, reports and/or disclosures from expert

3

witnesses as provided under Rule 26(a)(2) of the Federal Rules of Civil Procedure

4

should be as follows:

5

1.

Initial Expert Disclosures: July 25, 2014.

6

2.

Rebuttal Expert Disclosures: August 25, 2014

7

3.

Expert Discovery Cut-Off: September 26, 2014.

8

4.

Expert Discovery Motions Deadline: September 15, 2014.

9

Electronically stored information will be produced in accordance with Rule 34 of the

10

Federal Rules of Civil Procedure. Plaintiffs reserve the right to request that all

11

electronically stored information be produced in native form, if available, and

12

searchable pdf, if not. Plaintiffs further request that all meta-data in electronically

13

stored information be preserved.

14

Procedures for asserting claims of privilege or work product protection, including

15

any claims made after production, shall be in accordance with Rule 26(b)(5) of the

16

Federal Rules of Civil Procedure.:

17

The Parties are discussing and will present for the Court’s review a proposed

18

protective order.

19

E.

Pre-Trial and Trial Dates

20

1.

21

2014.

22

2.

23

during first phase of Bifurcated proceeding.

24

3.

25
26
27
28

Motion Cut-Off as to Merits Issues on Claim One: November 7,
Final Pre-Trial Conference: Not applicable as to proceedings
Trial as to Claim One: Not applicable as to proceedings during

first phase of Bifurcated proceeding.
F.

Major Procedural Or Evidentiary Problems

This action involves historical information and documents and the Parties will
work cooperatively to resolve any authentication or admissibility issues.
- 11 -

1

G.

2

Counsel believes that a settlement conference is premature at this time. After

3

the Court rules on the motion for summary judgment as to the merits issues on Claim

4

One, if the action proceeds past summary judgment, counsel will meet and confer to

5

select a settlement procedure pursuant to Civil Local Rules 16-15 and 16-15.9.

Settlement Procedures

6

H.

Length of Trial

7

1.

Plaintiffs’ Case-in-Chief: Not applicable as to proceedings during first

8

phase of Bifurcated proceeding.

9

2.

Defendants’ Case-in-Chief: Not applicable as to proceedings during

10

first phase of Bifurcated proceeding.

11

3.

12

during first phase of Bifurcated proceeding.

13

4.

14

during first phase of Bifurcated proceeding.

15

I.

The estimated time required for trial: Not applicable as to proceedings
The case should be ready for trial: Not applicable as to proceedings
Trial By Jury or Court

16

Not applicable as to proceedings during first phase of Bifurcated

17

proceeding. Plaintiffs reserve their jury demand if the action proceeds past

18

summary judgment at the end of the first phase of the Bifurcated proceeding.

19

J.

Name of Trial Attorneys

20

Plaintiffs:

21

Mark C. Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP

22

Betsy C. Manifold, Wolf Haldenstein Adler Freeman & Herz LLP

23

Randall S. Newman, Randall S. Newman P.C.

24

Defendants:

25
26
27
28

Glenn D. Pomerantz, Munger, Tolles & Olson LLP
Kelly M. Klaus, Munger, Tolles & Olson LLP
Adam I. Kaplan, Munger, Tolles & Olson LLP

- 12 -

1

K.

2

The Parties do not consent to a Magistrate Judge for all purposes.

3

II.

4

ITEMS LISTED IN FRCP 26(f)
A.

5
6

Consent to Magistrate Judge for All Purposes

Initial Disclosures:
Initial disclosures as to the merits issues in Claim One were exchanged

on January 30, 2014, which was 14 days after the Parties’ Planning Meeting.

7

B.

8

The Parties will proceed to serve discovery in accordance with the Federal

9

Discovery:

Rules related to the merits issues concerning Claim One.

10

C.

11

The Parties do not contemplate any changes to the discovery limitations set

12

forth by Federal Rules of Civil Procedure at this time, but instead reserve the right to

13

request an appropriate extension by either stipulation or motion.

Changes to Limitations on Discovery:

14

D.

15

The parties do not seek any additional orders at this time but reserve the right

Other Orders:

16

to do so as the need arises.

17

III.

ITEMS LISTED IN CivL.R. 26-1

18

To the extent that these elements are not addressed above:

19

A.

20

The complexity of this matter, including Plaintiffs’ motion for class

21
22
23
24
25
26
27
28

Complex Case:

certification, are not issues for the first phase of the Bifurcated proceeding.
B.

Motion Schedule:
The Parties expect to file summary judgment papers as to merits issues

on Claim One by November 7, 2014.

At the current time, the Parties do not

anticipate other merits-related motions prior to that motion.
C.-D. Trial and Final Pre-Trial Conference:
Not applicable to the first phase of the Bifurcated proceeding.

- 13 -

1

E.

2

The Parties jointly requested the following briefing schedule for the motion for

3

Dispositive Motion Hearing Cut-Off:

summary judgment as to merits issues relating to Claim One:

4

Joint Motion for Summary Judgment filed by: November 7, 2014.

5

F.-G. Discovery Cutoff and Initial Expert Disclosures:

6

These issues are addressed in Section I.D., above.

7

H.

8

This issue is addressed in Section I.G., above.

9

I.

Settlement:
Trial Estimate:

10

Not applicable to the first phase of the Bifurcated proceeding.

11

J.

12

No additional parties are contemplated by either party at this time.

13

K.

14

The Parties contemplate retaining experts. The schedule for disclosure of

15

Additional Parties:
Expert Witnesses:

experts and expert reports is set forth in Section I.D., above.

16
17

Respectfully Submitted,
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

Dated: February 10, 2014

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By:

/s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]

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750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
[e-mail]
GITI BAGHBAN (284037)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Interim Lead Counsel for Plaintiffs

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RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]

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HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]

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Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY BINKOW & GOLDBERG LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

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Attorneys for Plaintiffs

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MUNGER TOLLES & OLSON LLP

Dated: February 10, 2014
By:

/s/Kelly M. Klaus
KELLY M.KLAUS
KELLY M. KLAUS (161091)
[e-mail]
ADAM I. KAPLAN (268182)
[e-mail]
560 Mission St., 27th Floor
San Francisco, CA 94105
Telephone: [phone]
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MUNGER TOLLES & OLSON LLP
GLENN D. POMERANTZ (112503)
[e-mail]
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071
Telephone: [phone]

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Attorneys for Defendants

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DECLARATION REGARDING CONCURRENCE
I, BETSY C. MANIFOLD, am the ECF/CM User whose identification login
and password are being used to file this JOINT REPORT ON PARTIES’
PLANNING MEETING. In compliance with L.R. 5-4.3.4(2)(i), I hereby attest that

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Kelly M. Klaus has concurred in this filing’s content and has authorized its filing.

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DATED: February 10, 2014

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By:

/s/ Betsy C. Manifold
BETSY C. MANIFOLD

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WARNER/CHAPPELL:20396v.3.jsr

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