Polk-Stamps v. Netflix, Inc. et al

Filing 31

Polk-Stamps v. Netflix, Inc. et al

Doc. 31

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WHATLEY DRAKE & KALLAS LLC Joe R. Whatley, Jr. (Pro Hac Vice pending) [e-mail] Edith M. Kallas [e-mail] Ilze C. Thielmann [e-mail] Lili R. Sabo [e-mail] 1540 Broadway, 37th Floor New York, NY 10036 Tel: [phone] Fax: [phone] Plaintiffs' Proposed Lead Counsel [Additional counsel appear on signature pages] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION JAMES R. PITTMAN, Individually and on ) ) Behalf of All Others Similarly Situated, ) ) ) HAIG ASHIKIAN, etc., ) ) ) PETER KELLER, etc., ) ) ) WILLIAM GILLIS, etc., ) ) ) AARON WALTERS, etc. ) ) ) JACOB MEDWAY, etc., et al., ____________________________________ ) ) EULARDI TANSECO, etc., et al., ) ____________________________________ ) ) JESSICA ALENA SMITH, et al., ) ) Plaintiffs, ) ) v. ) ) APPLE INC., ) ) Defendants. ) ) 1
JOINT MOTION FOR APPOINTMENT OF CLASS COUNSEL STRUCTURE

Case No. C 08-05375 JW Case No. C 08-05810 JW Case No. C 09-00121 JW Case No. C 09-00122 JW Case No. C 09-00187 JW Case No. C 09-00330 JW Case No. C 09-00275 JW Case No. C 09-01028 RS CLASS ACTION CLASS PLAINTIFFS' JOINT NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF INTERIM CLASS COUNSEL STRUCTURE Hearing Date: Time: Courtroom: April 13, 2009 9:00 a.m. Hon. James Ware
CASE NO.C 08-05375 JW

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NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF CLASS COUNSEL STRUCTURE ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE on April 13, 2009 at 9:00 a.m., or as soon thereafter as the matter may be heard, before the Honorable James Ware, Judge of the United States District Court for the Northern District of California, San Jose Division, located at 280 S. First Street, San Jose, CA 95113, Plaintiffs in the above-related actions will and hereby do jointly move pursuant to Federal Rule of Civil Procedure 23(g) for appointment of an Interim Class Counsel structure as detailed in the accompanying Memorandum of Points and Authorities. This motion is based on the Notice of Motion and Motion; attached Memorandum of Points and Authorities; Declaration of Alan M. Mansfield in support hereof; all pleadings and papers filed herein and in each case; such additional evidence and oral argument the Court may consider and any other matters properly before the Court. ISSUE PRESENTED Should the Court approve the Interim Class Counsel structure proposed by plaintiffs in these eight related actions as consistent with Federal Rule of Civil Procedure 23(g)'s requirements? MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to the Court's March 5, 2009 Order Vacating Case Management Conference; Setting Hearing on Motion re: Consolidation and Appointment of Interim Class-Counsel ("Order") and Federal Rule of Civil Procedure 23(g)(1)(A)(3), and as a follow-on to the stipulation previously submitted to the Court, Plaintiffs in the related actions pending before the Court (collectively "Plaintiffs") submit this Memorandum in support of their joint motion to appoint (1) Whatley Drake & Kallas, LLC ("Whatley Drake") as Lead Interim Class Counsel, and (2) an Executive Committee consisting of a representative from each of the pending related cases /// /// /// 2
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(collectively, "Proposed Class Counsel") to facilitate the efficient and orderly prosecution of the case on behalf of Plaintiffs and the proposed class.1 I. INTRODUCTION As reflected in the Court's March 5, 2009 Order, in complex proposed nationwide class actions, the Federal Rules of Civil Procedure envision the Court reviewing and approving a qualified leadership structure at the litigation's early stages to ensure the proceedings advance in an orderly, expeditious, and cost-effective manner. The Advisory Committee's Notes to Rule 23(g) stress "the selection and activity of class counsel are often critically important to the successful handling of the class action." Fed. R. Civ. Proc. 23(g) (Notes of the Advisory

Committee). This joint Motion, brought by and on behalf of the class plaintiffs in the eight related actions before the Court, satisfies Rule 23(g) as it seeks adoption of a Class Counsel structure involving numerous well-qualified law firms experienced in managing complex class actions. The Court should approve this proposed structure for the following reasons. First,

Proposed Class Counsel have collectively demonstrated their willingness and ability to commit to this litigation. Counsel in these actions, which were among the first filed, have voluntarily agreed to transfer actions from around the country to the forum most likely able to handle these matters on a nationwide basis. Counsel have undertaken a significant amount of work in identifying and investigating potential claims and the claims in issue. Proposed Class Counsel have ///

The Plaintiffs in the following related class action cases currently pending before this Court support the instant Motion: (1) Jessica Alena Smith, Case No. C 09-01028 RS, filed on August 19, 2008 in the Northern District of Alabama and transferred to this Court on February 23, 2009; (2) Eulardi Tanseco, Case No. C 09-00275 JW, filed on August 29, 2008 in the District of New Jersey and transferred to this Court on January 22, 2009; (3) William Gillis, Case No. C 09-00122 JW, filed on August 29, 2008 in California state court and subsequently removed to the Southern District of California and transferred to this Court on January 15, 2009; (4) Aaron Walters, Case No. C 09-00187 JW, filed on September 12, 2008 in the Eastern District of Arkansas and re-filed in this Court on January 15, 2009; (5) Peter Keller, Case No. C 0900121 JW, filed November 19, 2008 in the Southern District of California and transferred to this Court on January 9, 2009; (6) James R. Pittman, Case No. C 08-053785 JW, filed on November 26, 2008; (7) Haig Ashikian, Case No. C 08-05810 JW, filed on December 31, 2008; and (8) Jacob Medway, Case No. C09-00330 JW, filed January 26, 2009. 3
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communicated with counsel for defendant Apple Inc. to establish the orderly and efficient prosecution of this litigation.2 Second, Proposed Class Counsel have shown their leadership skills and have demonstrated their desire and ability to work efficiently, effectively and cooperatively with each other. As a result of their litigation efforts, counsel for all the class action plaintiffs in this litigation have reached a consensus: (1) Whatley Drake should serve as Lead Interim Class Counsel, and (2) the firms of Schoengold Sporn Laitman & Lometti, P.C., Rosner & Mansfield, LLP, Emerson Poynter, LLP, Finkelstein Thompson, LLP, Glancy Binkow & Goldberg, LLP, Hiden Rott & Oertle LLP, The Litigation Law Group, and Heninger Garrison Davis, LLC, should serve on an Executive Committee so each of the eight related actions before the Court is represented. As discussed in detail below, these firms have practiced in complex litigation and have an established track record in consumer litigation. Where, as here, the parties agree among themselves to a leadership structure that best supports the class, absent some extraordinary finding of infirmity, the Court should approve the proposed leadership structure. U.S. Trust Co. of N.Y. v. Alpert, 163 F.R.D. 409, 423 (S.D.N.Y. 1995). Third, appointment of Proposed Class Counsel will ensure the continued, efficient and orderly prosecution of these related actions and secure the best possible representation for the putative class. As this Motion is supported by all of the named plaintiffs and their counsel, plaintiffs respectfully request the Court grant this joint Motion. II. ARGUMENT The main criteria for appointment of lead counsel are: (1) willingness and ability commit to the process; (2) ability to work cooperatively with others; (3) professional experience in this type of litigation; and (4) access to sufficient resources to advance the litigation in a timely manner. See Fed. R. Civ. Proc. 23(g)(1)(A). As set forth below, Whatley Drake and the Executive Committee members satisfy all four criteria. Proposed Class Counsel already have Counsel has met and conferred with Apple's counsel concerning this motion. Although Apple agrees a plaintiff counsel structure should be approved early on so they may interact with a Court-approved unified group structure, Apple takes no position on this Motion. Declaration of Alan M. Mansfield ("Mansfield Decl.") at ¶ 13. 4
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collectively demonstrated their willingness and ability to commit to this litigation and have demonstrated they are able to do so. A. Proposed Class Counsel Have Demonstrated Their Willingness and Ability to Commit to this Litigation

Proposed Class Counsel have already taken significant steps to advance this litigation by agreeing to prosecute these cases in a logical central forum and have demonstrated their willingness and ability to commit to this litigation. The investment of significant time and effort so far makes counsel the most appropriate candidates to fill the role of Class Counsel. See, e.g., Browning v. Yahoo! Inc., No. C04-01463, 2006 WL 3826714, at *4 (N.D. Cal. Dec. 27, 2006) (appointing class counsel, based in part on substantial work done "identifying or investigating potential claims"); see also Fed. R. Civ. P. 23(g)(1)(A)(i). These related actions were filed in District Courts around the country, including Alabama, New Jersey and Arkansas. Because Apple's operations are located in this District and Division, counsel voluntarily agreed these actions would be most efficiently prosecuted if they were all transferred to a single court and subject to consolidated proceedings. Counsel further agreed to being coordinated under a structure of one lead counsel in active consultation with an Executive Committee, with a representative from each of the related cases currently before the Court. Acting within the structure, these firms have and continue to conduct research and informal discovery and investigation regarding such claims. Hence when an order is entered they will be able to promptly prepare and file a Consolidated Amended Complaint. They also are working to craft a coordinated response to the pending Multi-District Litigation Petition filed by Apple to transfer four currently-pending state-wide class actions, as well as any other subsequently filed actions, to this District. Such effort demonstrates not only the ability of Proposed Class Counsel to commit to the successful litigation of these claims, but also Proposed Class Counsel are qualified to adequately serve the interests of the putative class pursuant to Federal Rule of Civil Procedure 23(g). /// /// 5
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B.

Proposed Class Counsel Affirm their Commitment to Work Cooperatively with Each Other

Whatley Drake is committed to fostering a cooperative, unified working relationship with all plaintiffs' counsel on the Executive Committee. The cooperative spirit Proposed Class

Counsel promises to bring to this litigation is evidenced by the agreement of all counsel to the proposed leadership structure. Whatley Drake has and will coordinate and consult with the Proposed Executive Committee on drafting the consolidated amended complaint, responding to the pending MDL Petition, investigating claims, conducting legal research, propounding discovery, and retaining experts. The leadership capabilities of Proposed Class Counsel have already been borne out in this litigation, as Proposed Class Counsel have successfully organized the nationwide and statewide class actions currently pending in this District from around the country. Therefore, Proposed Class Counsel have already demonstrated their ability to

coordinate, compromise and work together, all of which are essential functions in leading and managing complex litigation. C. Proposed Lead Class Counsel Possess the Professional Experience, Knowledge and Resources to Successfully Litigate the Actions

Proposed Class Counsel are able to adequately represent the interests of the proposed class pursuant to Federal Rule of Civil Procedure Rule 23(g). In the class certification context, courts hold a class is fairly and adequately represented where counsel are qualified, experienced and generally able to conduct the litigation on its behalf. See, e.g., In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425, 1435 (2d Cir. 1993); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 512 (S.D.N.Y. 1996) (class counsel satisfy adequacy requirement where they are able to prosecute the action vigorously). Further, where proposed class counsel demonstrate they are "ready, willing and able to devote the resources necessary to litigate the case vigorously," the adequacy requirement is satisfied. NASDAQ, 169 F.R.D. at 515. The appointment of the Interim Class Counsel structure set forth in the accompanying proposed order attempts to guarantee the best interests of plaintiffs and the putative class will be adequately represented. As set forth in the accompanying Mansfield Declaration and the attached 6
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exhibits, many of these firms are reputed nationwide class action law firms who collectively have the necessary resources, experience and geographic coverage to vigorously prosecute this litigation against well-respected counsel. Proposed Class Counsel have represented plaintiff classes on a wholly contingent basis, advanced costs and expenses, and litigated numerous class cases at the trial and appellate levels, securing many landmark rulings along the way. Proposed Class Counsel intend to work together as a team to ensure all necessary resources are made available for the action's prosecution. 1. Whatley Drake Has the Experience, Knowledge, and Resources to Adequately Represent the Best Interests of the Class

Whatley Drake is a 45-lawyer firm with offices in Birmingham, New York and Boston. The firm has vast experience in consumer class actions. Whatley Drake specializes in complex class action and derivative litigation, including consumer, securities, 401(k), healthcare, insurance, employment and mass tort litigation. See Whatley Drake resume, attached to the Mansfield Declaration as Ex. 1. Whatley Drake was recently appointed Co-Lead Counsel in In re Mattel, Inc., Toy Lead Paint Products Liability Litigation, 07-ml-1897-DSF (C.D. Cal.), a class action brought on behalf of consumers of recalled toys, and In re Countrywide Financial Corp. Mortgage Marketing and Sales Practices Litigation, Case No. 08-md-1988 DMS (LSP) (S.D. Cal.), a class action brought on behalf of defrauded mortgage borrowers, both of which are brought under California law. Id., ¶3. The work of the firm and its partners has resulted in numerous high profile settlements providing billions of dollars for class members, as well as significant corporate reforms. Joe R. Whatley Jr. has significant experience in leading important consumer class actions. For example, he was one of the lead counsel in the natural polybutylene litigation, which produced one of the largest consumer class action settlements in history. In addition to having argued before the United States Supreme Court, Mr. Whatley also has argued before many Circuit Courts of Appeals, including the Ninth Circuit. Id. Proposed Class Counsel have all confirmed they are ready, willing and able to utilize the necessary resources and to use their experience and expertise to obtain the best result possible for the plaintiffs in this litigation. Mansfield Decl., ¶12. 7
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2.

The Proposed Members of the Executive Committee All Have the Experience, Knowledge, and Resources to Serve in those Roles

Counsel also submit the positions of the following firms on the Executive Committee and as Liaison Counsel will strengthen Lead Class Counsel's ability to effectively and efficiently streamline and advance the litigation: LITIGATION LAW GROUP Gordon M. Fauth, Jr. For the Pittman Action ROSNER & MANSFIELD LLP Alan M. Mansfield HIDEN ROTT & OERTLE LLP Michael Ian Rott For the Gillis and Keller Actions EMERSON POYNTER LLP John G. Emerson Scott E. Poynter Christopher D. Jennings Gina M. Dougherty For the Walters Action SCHOENGOLD SPORN LAITMAN & LOMETTI, P.C. Jay Saltzman Daniel B. Rehns For the Tanseco Action FINKELSTEIN THOMPSON LLP Rosemary M. Rivas (Designated Local Liaison Counsel) Burton H. Finkelstein Mila Bartos For the Ashikian Action These firms all have the breadth of experience and skills necessary to make a significant contribution to this litigation, as demonstrated by their firm resumes, attached to the Mansfield Declaration as Exhibits 1 through 9. The experience of each of the firms is described in more detail in the exhibits and in the Mansfield Declaration. All have been actively involved in this litigation in terms of continuing investigation, research and discovery, and will provide 8
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GLANCY BINKOW & GOLDBERG LLP Marc L. Godino For the Medway Action

HENINGER GARRISON DAVIS LLC W. Lewis Garrison, Jr. For the Smith Action

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significant experience resources to the prosecution of this consolidated action. Mansfield Decl., ¶¶ 3-11. D. The Proposed Class Counsel Structure Has the Support of All Class Plaintiffs' Counsel

Finally, the Court should grant plaintiffs' joint motion because all class plaintiffs with cases pending in this District agree to the leadership structure proposed in this motion. Mansfield Decl., ¶ 12. Courts should approve a proposed leadership structure where the parties agree among themselves as to a leadership structure that best supports the class. U.S. Trust Co. of N.Y. v. Alpert, 163 F.R.D. 409, 423 (S.D.N.Y. 1995) ("[T]he court should encourage and approve selection of lead counsel by agreement of interested counsel, imposing its own choice only in `extraordinary situations.'"); see also 2 Herbert B. Newberg and Alba Conte, Newberg on Class Actions § 9.35 (3d ed. 1992) ("Lead counsel may be designated by consensus of interested counsel, and this selection may be accepted by the court when it makes an appointment. . . . The court should always encourage the parties themselves to agree on lead counsel, while imposing its own choice only in extraordinary circumstances."). III. CONCLUSION For all the foregoing reasons, Plaintiffs respectfully request the Court approve the Proposed Class Counsel structure detailed in the accompanying order. DATED: March 20, 2009 Respectfully submitted, WHATLEY DRAKE & KALLAS LLC /s/ Joe R. Whatley, Jr. Joe R. Whatley, Jr. (Pro Hac Vice Pending) [e-mail] 1540 Broadway, 37th Floor New York, NY 10036 Tel.: [phone] / Fax: [phone] Adam Plant [e-mail] 2001 Park Place North, Suite 1000 Birmingham, AL 35203 Tel: [phone] / Fax: [phone] Proposed Lead Interim Class Counsel 9
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Counsel for Plaintiff James R. Pittman: LITIGATION LAW GROUP S/Gordon M. Fauth, Jr. Gordon M. Fauth, Jr. [e-mail] 1801 Clement Avenue, Suite 101 Alameda, CA 94501 Tel: [phone] Fax: [phone] Counsel for Plaintiff Haig P. Ashikian: FINKELSTEIN THOMPSON LLP S/Rosemary M. Rivas Rosemary M. Rivas [e-mail] Daniel T. Lebel [e-mail] 100 Bush Street, Suite 1450 San Francisco, CA 94104 Tel: [phone] Fax: [phone] FINKELSTEIN THOMPSON LLP Burton H. Finkelstein [e-mail] Mila F. Bartos [e-mail] Karen J. Marcus [e-mail] 1050 30th Street NW Washington, D.C. 20007 Tel: [phone] Fax: [phone] LAW OFFICE OF D. JOSHUA STAUB D. Joshua Staub P. O. Box 1914 Santa Monica, CA 90406-1914 Tel: [phone] Fax: [phone] By: By:

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Counsel for Plaintiffs Peter Keller and William Gillis: ROSNER & MANSFIELD LLP S/Alan M. Mansfield Alan M. Mansfield [e-mail] 10085 Carroll Canyon Rd., Suite 100 San Diego, CA 92131 Tel: [phone] Fax: [phone] HIDEN ROTT & OERTLE LLP Michael Ian Rott [e-mail] David V. Hiden, Jr. [e-mail] Eric M. Overholt 2635 Camino Del Rio South, Suite 306 San Diego, CA 92108 Tel: [phone] Fax: [phone] DOYLE LOWTHER LLP William J. Doyle II [e-mail] John Lowther [e-mail] James Hail [e-mail] 9466 Black Mountain Road, Suite 210 San Diego, CA 92126 Tel: [phone] Fax: [phone] Counsel for Plaintiff Aaron Walters: DOYLE LOWTHER LLP S/William J. Doyle II William J. Doyle II [e-mail] John Lowther [e-mail] James Hail [e-mail] 9466 Black Mountain Road, Suite 210 San Diego, CA 92126 Tel: [phone] Fax: [phone] By: By:

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EMERSON POYNTER LLP Scott E. Poynter [e-mail] Christopher D. Jennings [e-mail] Gina M. Dougherty [e-mail] The Museum Center 500 President Clinton Ave., Suite 305 Little Rock, AR 72201 Tel: [phone] Fax: [phone] EMERSON POYNTER LLP John G. Emerson [e-mail] 830 Apollo Lane Houston, TX 77058 Tel: [phone] Fax: [phone] WHATLEY DRAKE & KALLAS LLC Joe R. Whatley, Jr. [e-mail] 1540 Broadway, 37th Floor New York, NY 10036 Tel: [phone] Fax: [phone] WHATLEY DRAKE & KALLAS LLC Adam Plant [e-mail] 2001 Park Place North, Suite 1000 Birmingham, AL 35203 Tel: [phone] Fax: [phone] Counsel for Plaintiff Eulardi Tanseco: SCHOENGOLD SPORN LAITMAN & LOMETTI, P.C. S/Jay Saltzman Jay Saltzman [e-mail] Daniel B. Rehns [e-mail] 19 Fulton Street, Suite 406 New York, NY 10038 Tel: [phone] Fax: [phone] By:

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Counsel for Plaintiff Jacob Medway: GLANCY BINKOW & GOLDBERG LLP S/Marc L. Godino Marc L. Godino [e-mail] 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Tel: [phone] Fax: [phone] Counsel for Plaintiffs Jessica Alena Smith and Wilton Lee Triggs, II: HENINGER GARRISON DAVIS, LLC By: S/W. Lewis Garrison, Jr. W. Lewis Garrison, Jr. [e-mail] Brian D. Hancock [e-mail] Gayle L. Douglas [e-mail] 2224 First Avenue North Birmingham, AL 35203 Tel: [phone] Fax: [phone] TRIMMIER LAW FIRM Edward S. Reisinger [e-mail] Haydn M. Trechsel [e-mail] Jonathan Lee Kudulis [e-mail] 2737 Highland Avenue Birmingham, AL 35201 Tel: [phone] Fax: [phone] By:

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