Hepting et al v. AT&T Corp. et al

Filing 213

NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL (Scarlett, Shana) (Filed on 6/14/2006)

Hepting et al v. AT&T Corp. et al

Doc. 213

1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) 2 [e-mail] LEE TIEN (148216) 3 [e-mail] KURT OPSAHL (191303) 4 [e-mail] KEVIN S. BANKSTON (217026) 5 [e-mail] CORYNNE MCSHERRY (221504) 6 [e-mail] JAMES S. TYRE (083117) 7 [e-mail] 454 Shotwell Street 8 San Francisco, CA 94110 Telephone: [phone] (fax) 10 Attorneys for Plaintiffs 11 [Additional counsel appear on signature page.] 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C-06-00672-VRW CLASS ACTION ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL

14 TASH HEPTING, GREGORY HICKS, ) CAROLYN JEWEL and ERIK KNUTZEN, on ) 15 Behalf of Themselves and All Others Similarly ) Situated, ) 16 ) Plaintiffs, ) 17 ) vs. ) 18 ) AT&T CORP., et al. ) 19 ) Defendants. ) 20 ) 21 22 23 24 25 26 27 28

Dockets.Justia.com

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PLEASE TAKE NOTICE THAT pursuant to Local Rule 7-11 and Fed. R. Civ. P. 23(g), the

2 Electronic Frontier Foundation ("EFF") makes this motion to be designated interim class counsel for 3 the Hepting action, and other related, coordinated, or consolidated cases in the Northern District of 4 California. EFF's motion is supported by all counsel in the Hepting action who are able to devote 5 resources to this litigation, as requested and overseen by EFF. 6 I. 7 PROCEDURAL HISTORY On January 31, 2006, the Hepting plaintiffs filed a class action against AT&T Inc. and

8 AT&T Corp. (collectively, "AT&T"), alleging that the defendants are engaged in a massive 9 warrantless eavesdropping program, at the behest of the United States government. The Hepting 10 case has two major factual components: the illegal interception of communications in transit by 11 AT&T and the illegal disclosure of stored communications data by AT&T. After further factual 12 investigation and analysis, on March 31, 2006, the Hepting plaintiffs filed a motion for preliminary 13 injunction supported by testimony from a former AT&T employee and from an expert in the 14 telecommunications industry arising from the first of these two factual components. 15 On April 28, 2006, the United States filed a statement of interest and both corporate

16 defendants moved to dismiss the complaint. On May 13, 2006, the government filed a motion to 17 dismiss plaintiffs' complaint or, in the alternative, for summary judgment based on the state secrets 18 privilege. On May 17, 2006, the Court heard argument on motions regarding the content and origin 19 of certain documents ­ with defendants moving to compel the return of the documents and to seal the 20 record. See Civil Minute Order, dated May 17, 2006. The Court denied the defendants' motions, 21 ordering the parties to meet and confer on producing a redacted version of these documents, and set 22 an expedited schedule for the dismissal motions. Id. The Hepting plaintiffs have opposed the 23 defendants' motions for dismissal and the government's state secrets motion for dismissal; a hearing 24 is currently scheduled for June 23, 2006. 25 On May 11, 2006, an article appeared in the USA Today, reporting that the National Security

26 Agency was engaged in a classified program to amass a database including information about the 27 28 ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL - C-06-00672-VRW -1-

1 calling records of millions of Americans. Verizon MDL Motion at 4.1 This article focused on the 2 second of the two factual components of the Hepting case and specifically mentioned the case and 3 the EFF's role in it. Following that article, at least 31 complaints have been filed across the country 4 against the telecommunications companies focusing on the facts raised in the USA Today article. 5 These complaints are now the subject of an MDL proceeding. One of these actions was filed on 6 May 30, 2006, in the Northern District of California, Roe, et al. v. AT&T Corp., et al., Case No. C7 06-03467-VRW. This Court found Roe to be a related action on June 8, 2006. Two other actions 8 were filed in state court, and have since been removed to the Northern District of California. See 9 Riordan, et al. v. Verizon Commc'ns, Inc., Case No. C-06-03574-JSW (removed from state court on 10 June 5, 2006); and Campbell, et al. v. AT&T Commc'ns of Cal., et al., Case No. C-06-03596-VRW 11 (removed from state court on June 6, 2006). 12 II. 13 14 15 16 17 18 19 20 21 22 23 RULE 23(g) CONTEMPLATES THE DESIGNATION OF INTERIM CLASS COUNSEL Amendments to Rule 23(g) in 2003 specifically recognize the need to designate interim class counsel in certain situations. Rule 23(g)(2)(A) provides that "[t]he court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action." Traditional procedures in which "all papers and documents are served on all attorneys, and each attorney files motions, presents arguments, and examines witnesses, may waste time and money, confuse and misdirect the litigation, and burden the court unnecessarily." Manual for Complex Litigation §10.22, pp. 24-28 (4th ed. 2004). Where, as here, there are many parties and duplicative actions, coordinating counsel early in the litigation avoids these problems. A. Designating Interim Class Counsel Is Appropriate to Protect the Interests of Class Members

Designating interim class counsel is appropriate where "overlapping, duplicative, or

24 competing class suits are pending before a court, so that appointment of interim counsel is necessary 25
1 "Verizon MDL Motion" refers to the Memorandum in Support of Defendants Verizon 26 Communications Inc., Verizon Global Networks Inc., and Verizon Northwest Inc.'s Motion for Transfer and Coordination Pursuant to 28 U.S.C. §1407, filed May 24, 2006, with the Judicial Panel 27 on Multidistrict Litigation.

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1 to protect the interests of class members." Donaldson v. Pharmacia Pension Plan, Case No. 06-32 GPM, 2006 U.S. Dist. LEXIS 28607, at **2-3; 2006 WL 1308582 (S.D. Ill. May 10 2006). The 3 commentary to Rule 23 anticipated that when duplicative suits are filed, interim counsel can ensure 4 that someone "prepare[s] for the certification decision" and "make[s] or respond[s] to motions before 5 certification." Fed. R. Civ. P. 23(g) advisory committee's note. 6 Here, as noted above, many potentially dispositive motions have already been filed ­ and

7 responded to ­ in the Hepting action. EFF has already litigated key collateral issues involving both 8 defendants and the media, including the use of key evidence and the sealing issues. EFF has also, at 9 the Court's request, negotiated redactions to publicly-filed documents with defendants. Roe 10 plaintiffs, in recently filed papers with the MDL panel, acknowledge that Hepting has "involved 11 extensive motion practice and hearings" and "has progressed much further than every other action." 12 See Roe Plaintiffs' Memorandum in Support of Motion for Transfer and Coordination to the 13 Northern District of California Pursuant to 28 U.S.C. §1407, filed June 13, 2006, at 3. The Roe 14 plaintiffs also acknowledge that the extensive motion practice has given the Hepting plaintiffs 15 "extensive knowledge about the statutory issues and the government's `state secret' assertions since 16 the case was filed six months ago." Id. All of these reasons support designating EFF as interim 17 class counsel. 18 19 20 21 22 23 24 25 26 27 28 B. Recently Filed Duplicative Actions Make Designation of Interim Class Counsel Necessary

Another factor making the designation of interim class counsel necessary is that duplicative lawsuits have now been filed ­ months after the Hepting case was filed ­ requiring coordination of resources. The commentary to Rule 23 notes that "in some cases . . . there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate." One court has noted that where `"there are a number of overlapping, duplicative, or competing suits pending in other courts, designation of interim counsel clarifies responsibility for protecting the interests of the class during precertification activities. . . ."' Donaldson, 2006 U.S. Dist. LEXIS 28607, at **3-4. Here, several of the recent cases have now been filed in or removed to the Northern District of California, each of which is less inclusive, both factually and legally, than the Hepting action. ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL - C-06-00672-VRW

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1 The Roe action only includes a limited subset of the factual allegations of the Hepting complaint, 2 specifically those involving public revelations made in the USA Today article and alleging causes of 3 action under the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. §2702(a)(3) 4 and the Federal Communications Act of 1934, 47 U.S.C. §605, both of which are alleged in the 5 Hepting action. The Hepting complaint is broader, also alleging violations of the First and Fourth 6 Amendments of the United States Constitution, the Foreign Intelligence Surveillance Act ("FISA"), 7 50 U.S.C. §1809, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 8 §2511(3), and additional ECPA violations, including 18 U.S.C. §2702(a)(1). The individual actions, 9 Campbell and Riordan, also center around the factual allegations first revealed publicly in the USA 10 Today article, but seek only injunctive relief under the California Constitution and California's 11 Public Utility Code.2 12 13 C. EFF Is the Most Appropriate Interim Class Counsel (1) counsel's work identifying or

In designating counsel, the court may consider:

14 investigating potential claims in the action; (2) counsel's experience in handling class actions, 15 complex litigation, and claims of the type asserted in the action; (3) counsel's knowledge of the 16 applicable law; and (4) the resources counsel will commit to the case. Fed. R. Civ. P.

17 §23(g)(1)(C)(i). The court may also consider "any other matter pertinent to counsel's ability to 18 fairly and adequately represent the interests of the class." Fed. R. Civ. P. §23(g)(1)(C)(ii). 19 As discussed above, EFF and their supporting counsel have undertaken significant work

20 investigating and developing the facts and identifying potential claims in this action. In addition, 21 EFF and their supporting counsel also have significant experience in handling class actions and other 22 complex litigation. EFF is a non-profit organization, formed in 1990, that has participated in 23 significant litigation involving privacy and electronic surveillance. EFF's expertise in privacy law 24 and electronic media is near unrivaled, having been counsel or amicus curiae in cases spanning four 25
2 The question of whether Campbell and Riordan are related to Hepting is currently pending 26 before this Court. The plaintiffs in those cases are likely to seek remand to the California state courts, and until these questions are answered by this Court, it may be premature to join these cases 27 in the case management order at this time.

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1 circuits, many district courts, and the FISA court.3 Given EFF's particular expertise in this area of 2 law, it is more than adequate to serve as interim class counsel for cases pending in the Northern 3 District of California. 4 Firms working with EFF on the litigation comprise several of the largest and most

5 specialized firms in complex litigation. For example, Lerach Coughlin Stoia Geller Rudman & 6 Robbins LLP ("Lerach Coughlin") a 160-lawyer firm that specializes in securities, consumer, 7 insurance, healthcare, human rights, employment discrimination, and antitrust class actions. Cohn 8 Decl., Ex. B. Lerach Coughlin attorneys have been responsible for recoveries of more than $45 9 billion for plaintiffs. Similarly, Heller Ehrman has an extensive practice that bridges many areas of 10 law, including litigation, business and intellectual property capabilities. Cohn Decl., Ex. C. Heller 11 Ehrman has more than 700 attorneys and professionals in 12 cities nationwide and abroad. Other 12 supporting counsel to EFF include Traber & Voorhees, who also specialize in class actions and 13 multi-plaintiff cases, and the Law Offices of Richard R. Wiebe. Cohn Decl., Exs. D-E. These firms, 14 in combination with EFF, have sufficient experience in handling class actions and other complex 15 litigation similar to this action. Likewise, the size and number of firms supporting EFF means that 16 sufficient resources are available to litigate this case. 17 III. 18 CONCLUSION For all the reasons stated above, plaintiffs respectfully request that the Court enter the

19 [Proposed] Case Management Order Number 1, submitted concurrently with this motion. 20 DATED: June 14, 2006 21 22 23 24
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ELECTRONIC FRONTIER FOUNDATION

/s/ CINDY COHN

Examples of EFF's involvement in relevant cases include Snow v. DirecTV, Inc., Case No. 05-13687, 2006 U.S. App. LEXIS 13561, 2006 WL 1493817 (11th Cir. June 1, 2006); United States 25 v. Councilman, 418 F.3d 67 (1st Cir. 2005); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); 26 Sealed Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (5th Cir. 1994); In re Case No. 02-001, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Review 2002). See also Declaration of Cindy A. Cohn in Support of Administrative Motion for Designation of Interim Class 27 Counsel ("Cohn Decl."), Ex. A. 28 ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL - C-06-00672-VRW -5-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL - C-06-00672-VRW -6CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON CORYNNE MCSHERRY JAMES S. TYRE 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] (fax) TRABER & VOORHEES BERT VOORHEES THERESA M. TRABER 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: [phone] (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP REED R. KATHREIN JEFF D. FRIEDMAN SHANA E. SCARLETT MARIA V. MORRIS 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: [phone] (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP ERIC ALAN ISAACSON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) LAW OFFICE OF RICHARD R. WIEBE RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: [phone] (fax)

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HELLER EHRMAN LLP ROBERT D. FRAM MICHAEL M. MARKMAN 333 Bush Street, Suite 3100 San Francisco, CA 94104-2878 Telephone: [phone] (fax) Attorneys for Plaintiffs I, Shana E. Scarlett, am the ECF User whose ID and password are being used to file this ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL. In compliance with General Order 45, X.B., I hereby attest that Cindy A. Cohn has concurred in this filing. DATED: June 14, 2006
W:\AT&T Privacy\mot00031742.doc

/s/ SHANA E. SCARLETT

ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL - C-06-00672-VRW

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CERTIFICATE OF SERVICE I hereby certify that on June 14, 2006, I electronically filed the foregoing with the Clerk of

3 the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants indicated on the attached Manual Notice List. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ SHANA E. SCARLETT LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 100 Pine Street, 26th Floor San Francisco, CA 94111 Telephone: [phone] (fax) E-mail: [e-mail]