Walter et al v. Hughes Communications, Inc. et al

Filing 17

STIPULATION AND CASE MANAGEMENT ORDER NO. 1: Case C-09-3543 Schumacker -v- Hughesnet, Inc., is consolidated with this action. Signed by Judge Samuel Conti on 8/27/09. (tdm, COURT STAFF) (Filed on 8/27/2009)

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

William M. Audet (CA State Bar #117456) [e-mail] Joshua C. Ezrin (CA State Bar #220157) [e-mail] AUDET & PARTNERS, LLP 221 Main Street, Suite 1460 San Francisco CA 94105 Telephone: [phone] Facsimile: 415.568.2556 Alan R. Plutzik (CA State Bar No. 077785) [e-mail] Jennifer S. Rosenberg (CA State Bar No. 121023) [e-mail] BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 95498 Telephone: [phone] Facsimile: [phone] Harris L. Pogust (PA Bar No. 52721) [e-mail] Robert N. Wilkey (PA Bar No. 92443) [e-mail] POGUST, BRASLOW & MILLROOD, LLC 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Proposed Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TINA WALTER and CHRISTOPHER BAYLESS, individually and on behalf of all others similarly situations, Plaintiff, vs. HUGHES COMMUNICATIONS, INC., a Delaware corporation, and HUGHES NETWORK SYSTEMS, LLC, a Delaware corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 09-cv-02136 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

The Honorable Samuel Conti

1 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

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

WHEREAS Plaintiffs Tina Walter and Christopher Bayless, on behalf of a putative class of California subscribers to the "HughesNet" internet service filed a complaint on May 15, 2009 in this Court against Hughes Communications, Inc., and Hughes Network Systems, LLC (hereafter collectively referred to as "Hughes Defendants") for declaratory relief, violations of the Unfair Competition Law, Bus. & Prof. Code §§ 17200 et seq., violations of the Consumer Legal Remedies Act, Cal. Civil Code §§ 1770 et seq., and for money had and received, making allegations regarding HughesNet internet speeds, termination fees and other terms and conditions of the HughesNet service; WHEREAS Plaintiff Eric Schumacher filed a complaint against the Hughes Defendants in the Superior Court of California for the County of San Diego on June 9, 2009, asserting claims on behalf of a putative class of California subscribers to the "HughesNet" internet service, for violations of of the Consumer Legal Remedies Act, Cal. Civil Code §§ 1770 et seq., violations of the Unfair Competition Law, Bus. & Prof. Code §§ 17200 et seq., negligent misrepresentation and omission, intentional misrepresentation and omission, fraud, and unjust enrichment, based on allegations regarding HughesNet internet speeds, termination fees and other terms and conditions of the HughesNet service; WHEREAS the two actions raise many of the same or similar issues of fact and law; WHEREAS the Hughes Defendants removed the Schumacher action to the United States District Court for the Southern District of California on June 25, 2009; WHEREAS the parties to the Schumacher action filed a joint motion to transfer the Schumacher action to the Northern District of California; WHEREAS on July 28, 2009, the Court in the Southern District of California granted the joint motion and issued an order transferring the Schumacher action to the Northern District of California; WHEREAS on August 11, 2009, the Schumacher action was transferred to the Northern District of California, where it is now pending before Magistrate Judge James Larson (Case No. 09-cv-3543);

2 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

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 I.

WHEREAS the parties to the Schumacher and Walter actions filed a joint stipulation setting forth a schedule for the filing of a consolidated complaint and the Hughes Defendants' response to the consolidated complaint; WHEREAS counsel for all Plaintiffs have each concluded that it is in the best interests of the respective parties and absent putative class members that the above-captioned actions be consolidated for all purposes and proceed as contemplated herein; WHEREAS all served parties, through their respective counsel, have stipulated to the terms provided herein; WHEREAS the existence of common questions of law and fact in the actions now pending before this Court, the interests of fair and efficient administration of the actions and the avoidance of unnecessary duplicative efforts, warrants the consolidation of the actions, and good cause appearing therefore; IT IS HEREBY STIPULATED, AGREED AND ORDERED AS FOLLOWS: CONSOLIDATION OF RELATED ACTIONS 1. The Court finds that Walter v. Hughes Communications, Case No. 09-cv-02136

and Schumacher v. Hughesnet, Inc., Case No. 09-CV-3543 are related actions and such cases are hereby consolidated into Walter v. Hughes Communications, Case No. 09-cv-02136 and are referred to herein as the Consolidated Action. II. MASTER DOCKET FILE 2. The Clerk shall establish and maintain a Master Docket and Master File for this

proceeding under the caption "Walter, Bayless, and Schumacher v. Hughesnet, Inc., et al.," Case No. 09-cv-02136. All orders, pleadings, motions, and other documents should, when filed and docketed in the Master File, be deemed filed and docketed in each individual case. 3. Every pleading filed in these Consolidated Actions, or in any separate action

included herein, shall bear the following caption: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Walter, Bayless, and Schumacher v. Hughesnet, Inc., et al

) )

Case No. 09-cv-02136

3 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

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 4. These Consolidated Actions are subject to Electronic Case Filing ("ECF"),

pursuant to General Order 45, Section VI of which requires that all documents in such a case be filed electronically. General Order 45 provides at Section VI(A) that "Each attorney of record is obligated to become an ECF User and be assigned a user ID and password for access to the system upon notification that the action is subject to ECF." If she or he has not already done so, counsel hall register forthwith as an ECF User and be issued an ECF User ID and password. Forms and instructions can be found on the Court's website at https://ecf.cand.uscourts.gov. 5. All counsel shall be required to register immediately for ECF filing, and ECF

filing in Case No. 09-cv-02136 shall be deemed sufficient service on all parties for all documents able to be publicly filed, and that parties are excused from any duty under General Order 45, part (IX)(C)(2) to serve paper copies of any filing in these proceedings, with the exception of filings made under seal. 6. At the time of filing of original papers with the Clerk's Office, the parties will

submit one additional conformed copy of each document designated "Chambers Copy." III. APPOINTMENT OF INTERIM CLASS COUNSEL 7. The Court appoints Jennifer S. Rosenberg of Bramson, Plutzik, Mahler &

Birkhaeuser, LLP as Liaison Counsel, responsible for the following: To maintain and distribute to the Court and all Parties an up-to-date comprehensive service list of all plaintiffs' counsel; to receive and distribute to all plaintiffs, as appropriate, all orders, notices, and other papers from the Court; to coordinate the filing of notices, motions, oppositions, and other papers by plaintiffs so that plaintiffs can file a single set of such documents; to coordinate the streamlining of all plaintiff's discovery propounded on defendants, including deposition notices, into single sets of discovery; and to act on behalf of all plaintiffs at pretrial conferences and hearings. 8. The Court appoints William M. Audet of Audet & Partners, LLP and Harris L.

Pogust of Pogust, Braslow & Millrood, LLC as Lead Counsel and interim class counsel pursuant to F.R.Civ.P. 23(g)(3), responsible for the following: To brief and argue all motions for the

4 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

plaintiffs and file opposing briefs and argue motions in proceedings initiated by other parties (except as to matters specifically directed to individual plaintiffs and their counsel); to coordinate and communicate with defense counsel when appropriate and to consult with them on matters of common concern; to maintain time and expense records for work performed by or on behalf of the common benefit; to engage in settlement discussions, as appropriate, on behalf of all plaintiffs and/or to designate other plaintiffs' counsel to do so; and to perform all other tasks necessary to coordinate plaintiffs pretrial activities. IV. CONSOLIDATED COMPLAINT AND RESPONSIVE PLEADINGS 9. Plaintiffs shall file a Consolidated Class Action Complaint on or before

September 3, 2009. The Consolidated Class Action Complaint shall serve as the Operative Complaint in this action and shall supersede any other complaint previously filed in Walter and/or any related case. 10. Waiving only the defenses of insufficiency of process and insufficiency of

service of process, the undersigned counsel, on behalf of Defendants, shall acknowledge service of the operative Complaint in this action. Defendants are hereby expressly relieved from answering or otherwise responding to the initial complaints or any complaint filed in any subsequent civil action that is consolidated with this action. 11. The initial Case Management Conference is scheduled for December 4, 2009.

IT IS SO STIPULATED AND AGREED. Dated: August 26, 2009 AUDET & PARTNERS, LLP By: /s/

23 24 25 26 27 28 Joshua C. Ezrin 221 Main Street, Suite 1460 San Francisco CA 94105 Telephone: [phone] Facsimile: 415.568.2556

5 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

1 2

Dated: August 26, 2009

BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP By: /s/

3 4 5 6 Dated: August 26, 2009 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED. Dated: August 26, 2009 POGUST, BRASLOW & MILLROOD, LLC By: /s/ Jennifer S. Rosenberg 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 95498 Telephone: [phone] Facsimile: [phone]

Harris L. Pogust, Esq. 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Proposed Class HOGAN & HARTSON, LLP By: /s/

Robert B. Hawk 515 University Avenue, 4th Floor Palo Alto, CA 94301 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Hughes Communications and Hughes Network Systems, LLC

August 27, 200 Dated: _______________ 9
UNIT ED

THE HONORABLE DERED SAMUEL CONTI O OR
FO
A
Judge S amuel C onti

S

S DISTRICT TE C TA

RT U O

ER

N

F D IS T IC T O R

C

6 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1

LI

R NIA

IT IS S

NO

RT
H

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

I, Joshua C. Ezrin, am the ECF User whose ID and password are being used to file this Stipulation And [Proposed] Case Management Order No. 1. I hereby attest that Jennifer Rosenberg, Harris Pogust, and Robert Hawk have concurred in this filing.

Dated: August 26, 2009

AUDET & PARTNERS, LLP

By

/s/ Joshua C. Ezrin

7 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NO. 1