In Re Sony PS3 "Other OS" Litigation

Filing 102

MEMORANDUM in Opposition re 99 Request for Judicial Notice,, filed byJason Baker, Antal Herz, Jonathan Huber, Elton Stovell, Anthony Ventura. (Related document(s) 99 ) (Rivas, Rosemary) (Filed on 10/12/2010)

1 James A. Quadra (SBN 131084) Email: [e-mail] 2 Rebecca M. Coll (SBN 184468) Email: [e-mail] 3 CALVO & CLARK, LLP One Lombard Street, Second Floor 4 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] 6 Rosemary M. Rivas (SBN 209147) Email: [e-mail] 7 Tracy Tien (SBN 253930) Email: [e-mail] 8 FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 9 San Francisco, California 94115 Telephone: [phone] Facsimile: [phone] 11 Interim Co-Lead Counsel and Counsel for Plaintiffs 12 [Additional Counsel Listed On Signature Page] 13 14 15 16 17 IN RE SONY PS3 "OTHER OS" LITIGATION 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC) CASE NO. CV-10-1811-RS (EMC) PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE Date: November 4, 2010 Time: 1:30 p.m. Judge: Honorable Richard Seeborg Courtroom: 3 James Pizzirusso (Pro hac vice) Email: [e-mail] HAUSFELD LLP 1700 K. Street NW, Suite 650 Washington, DC 20006 Telephone: [phone] Facsimile: [phone]

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 III. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. A.

TABLE OF CONTENTS Page INTRODUCTION......................................................................................1 ARGUMENT........................................................................................................................2 The Applicable Law Regarding a Court's Consideration of Matters Outside of the Pleadings....................................................................................................................... 2 The Documents Annexed to the Ott Declaration Are Not Central to Plaintiffs' Claims, and Many of Them are Not Even Referred to in the Complaint................................... 4 1. 2. 3. The Service Terms and License Agreements...........................................4 "Screenshots" of Internet Blogs..........................................................6 Pleadings filed in Other Courts..........................................................7

CONCLUSION..................................................................................................................7

i TABLE OF CONTENTS CASE NO. CV 10-1811-RS (EMC)

1 2 Cases

TABLE OF AUTHORITIES Page(s)

3 Alvarez v. Lake County Bd. of Supervisors, No. 10-1071, 2010 U.S. Dist. LEXIS 95109 (N.D. Cal. Sept. 13, 2010) ..................................... 3 4 5 Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994)......................................................................................................... 2 6 Berenblat v. Apple, Inc., 7 No. 08-4969, 2009 U.S. Dist. LEXIS 80734 (N.D. Cal. Aug. 21, 2009)...................................... 5 8 9 Best Buy Stores, L.P. v. Manteca Lifestyle Ctr., No. 10-389, 2010 U.S. Dist. LEXIS 47193 (E.D. Cal. May 12, 2010)................................. 2, 3, 5

10 Blasko v. Wash. Mut. Bank, No. 09-2376, 2010 U.S. Dist. LEXIS 90020 (S.D. Cal. Aug. 30, 2010) ...................................... 3 11 12 Cash Energy, Inc. v. Weiner, 768 F.Supp. 892 (D. Mass. 1991) ................................................................................................. 2 13 14 Contino v. BMW of North Am., LLC, No. 07-5755, 2008 U.S. Dist. LEXIS 59027 (D.N.J. July 29, 2008)............................................ 6 15 Datel Holdings, Ltd. v. Microsoft Corp., 16 No. 09-5535, 2010 U.S. Dist. LEXIS 40021 (N.D. Cal. Apr. 23, 2010) ...................................... 5 17 Falk v. GMC, 496 F. Supp. 2d 1088 (N.D. Cal. 2007) ........................................................................................ 6 18 19 Hannan v. Maxim Integrated Prods., No. 02-36120, 2010 U.S. App. LEXIS 18606 (9th Cir. Sept. 3, 2010) ........................................ 2 20 21 Henderson v. Volvo Cars of N. Am. LLC, No. 09-4146, 2010 U.S. Dist. LEXIS 73624 (D.N.J. July 21, 2010)............................................ 6 22 Knievel v. ESPN, 23 393 F.3d 1068 (9th Cir. 2005)....................................................................................................... 2 24 Lussier v. Runyon, 25 50 F.3d 1103 (1st Cir. 1995) ......................................................................................................... 4 26 Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006)......................................................................................................... 3 27 28 i TABLE OF AUTHORITIES CASE NO. CV 10-1811-RS (EMC)

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Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000)........................................................................................... 7 Fant v. Residential Servs. Validated Publ'ns, No. 06-00934, 2007 U.S. Dist. LEXIS 23010 (E.D. Cal. Mar. 16, 2007) .................................... 5

4 Sommer v. United States, No. 09-2093, 2010 U.S. Dist. LEXIS 94292 (S.D. Cal. Sept. 10, 2010) ...................................... 2 5 6 Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116 (9th Cir. 2007)....................................................................................................... 3 7 8 9 Rules

Fed. R. Civ. P. 12(b) .................................................................................................................. 2, 3, 4 10 Fed. R. Civ. P. 12(d).............................................................................................2 Fed. R. Evid. 201 ................................................................................................................... 1, 3, 5, 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii TABLE OF AUTHORITIES CASE NO. CV 10-1811-RS (EMC)

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I.

INTRODUCTION

Carter Ott is an attorney at DLA Piper LLP and counsel of record in this case for Defendant

3 Sony Computer Entertainment America LLC ("SCEA"). On September 10, 2010, he submitted to 4 this Court a four page declaration "in support of defendant's motions to dismiss and strike." See 5 Docket Entry No. 98 (the "Ott Declaration"). Annexed to the Ott Declaration are twenty-four 6 exhibits, of which SCEA requests that the Court take judicial notice. See id. These exhibits 7 include "true and correct" copies of service terms, licensing and user agreements purportedly 8 obtained from SCEA's website; eight different complaints filed against SCEA in various 9 jurisdictions; and "screenshots" and "copies of excepts of postings from Internet webpages cited in 10 Plaintiffs' Consolidated Class Action Complaint."1 According to the Ott Declaration, six of the 11 exhibits (C, F, S, T, U, and V) were retrieved "using an Internet archive." Id. at ¶¶ 4, 7, 20-23. 12 Significantly, Exhibit Q is the only document in the Ott Declaration that SCEA claims is "relied 13 on" or "cited in" by Plaintiffs in the amended complaint. Id. at 18; see also SCEA's Request for 14 Judicial Notice in Support of Defendant's Motions to Dismiss and Strike ("RJN") at 3.2 15 The Ott Declaration and accompanying use of these exhibits in SCEA's motion to dismiss 16 brief ("MTD") does far more than simply attach for this Court's review exhibits that were 17 referenced in or integral to the operative Consolidated Class Action Complaint ("Complaint"). 18 Instead, the references to the exhibits in the Ott Declaration are replete with unsupported factual 19 assertions, personal characterizations of documents, and references to several documents and 20 exhibits that, in large part, are nowhere mentioned in or annexed to the complaint. Further, SCEA 21 has failed to properly authenticate any of these documents, nor has it demonstrated that any of the 22 documents annexed to the Ott Declaration contain the indicia of reliability required under FED. R. 23 24 EVID. 201 for this Court to take judicial notice. As such, the exhibits to the Ott Declaration run 25 afoul of controlling Ninth Circuit authority regarding the consideration of matters outside of the 26 27 28
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See Ott Declaration at ¶ 18. Docket Entry No. 99. 1 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

1 pleadings, and should therefore not be considered in connection with the disposition of the motion 2 to dismiss. 3 4 5 6 7 8 9 10 11 12 13 14 15 II. ARGUMENT

A. The Applicable Law Regarding a Court's Consideration of Matters Outside of the Pleadings. In deciding a motion to dismiss, a district court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Hannan v. Maxim Integrated Prods., No. 02-36120, 2010 U.S. App. LEXIS 18606, at *2 (9th Cir. Sept. 3, 2010) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)). Given this standard of review, "[i]n general a court may not consider items outside the pleadings upon deciding a motion to dismiss..." Best Buy Stores, L.P. v. Manteca Lifestyle Ctr., No. 2:10-389, 2010 U.S. Dist. LEXIS 47193, at *5 (E.D. Cal. May 12, 2010) (citing Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994)). Subject to limited exceptions which are inapplicable here, relying on evidence that is not

16 alleged by the plaintiff in connection with a FED. R. CIV. P. 12(b)(6) motion to dismiss is also 17 specifically prohibited by Rule 12(d), which provides in pertinent part: 18 19 20 21 22 23 24 25 26 27 28 If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. FED. R. CIV. P. 12(d); see also Cash Energy, Inc. v. Weiner, 768 F.Supp. 892, 896 (D. Mass. 1991) ("A 12(b)(6) motion is ordinarily judged on the pleadings alone.") (citing 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1356 (2d ed. 1990)); Sommer v. United States, No. 09cv2093, 2010 U.S. Dist. LEXIS 94292, at *21-22 (S.D. Cal. Sept. 10, 2010) ("In order to consider `matters outside the pleadings,' a court must generally convert a motion to dismiss into a motion for summary judgment and give all parties a reasonable opportunity to present all the material that is pertinent to the motion. At this early stage in the 2 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

1 proceedings, no discovery has been conducted, and converting the motion to dismiss into a 2 summary judgment motion would be inappropriate.") (internal citations omitted). As a general 3 rule, therefore, a defendant cannot submit "matters outside the pleadings" in support of a motion to 4 dismiss pursuant to FED. R. CIV. P. 12(b) unless the district court converts it into one for summary 5 judgment, and provides the plaintiff with an adequate opportunity to conduct the discovery 6 necessary to oppose that motion.3 FED. R. CIV. P. 12(b). 7 There are, however, a handful of "narrow exceptions" to this rule.4 Specifically, the Ninth

8 Circuit has explained that "[a] court may consider evidence on which the complaint `necessarily 9 relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's 10 claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." 11 Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citations omitted; emphasis supplied). 12 A district court may also take judicial notice of matters in the public record without 13 converting a motion to dismiss into a motion for summary judgment. See Best Buy Stores, L.P., 14 2010 U.S. Dist. LEXIS 47193, at *5. Under FED. R. EVID. 201(b), "[j]udicial notice may be taken 15 of facts `not subject to reasonable dispute' because they are either `(1) generally known within the 16 territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort 17 to sources whose accuracy cannot reasonably be questioned.'" Blasko v. Wash. Mut. Bank, No. 18 09cv2376, 2010 U.S. Dist. LEXIS 90020, at *4 (S.D. Cal. Aug. 30, 2010) (quoting FED. R. EVID. 19 201(b)(1)-(2)). "Courts have tended to apply Rule 201(b) stringently -- and well they might, for 20 accepting disputed evidence not tested in the crucible of trial is a sharp departure from standard 21 22 23 A motion to dismiss need not be converted into a motion for summary judgment, however, if the 24 "documents that are not properly subject to judicial notice and that are outside the pleadings" are 25 not considered. Alvarez v. Lake County Bd. of Supervisors, No. 10-1071, 2010 U.S. Dist. LEXIS 95109, at *14, n.3 (N.D. Cal. Sept. 13, 2010). 26 4 See, e.g., Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1120 (9th Cir. 2007) ("...the documents at issue do not fall within the narrow exception to the general rule that the 27 scope of this court's review on a motion to dismiss for failure to state a claim is limited to the 28 contents of the complaint...") (emphasis added; citations omitted). 3 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)
3

1 practice." Lussier v. Runyon, 50 F.3d 1103, 1113-14 (1st Cir. 1995). As discussed below, these 2 narrow exceptions are inapplicable here. 3 4 5 B. The Documents Annexed to the Ott Declaration Are Not Central to Plaintiffs' Claims, and Many of Them are Not Even Referred to in the Complaint. The documents attached to the Ott Declaration do not fall within the "narrow" categories of

6 materials that can be considered by the Court in addressing a Rule 12(b)(6) motion to dismiss 7 without converting it into a motion for summary judgment, and/or are unnecessary for the Court to 8 review in connection with the resolution of the MTD. Moreover, SCEA has not established that 9 any of these documents contain judicially noticeable facts, nor has it properly authenticated these 10 materials. As such, the Declaration and related exhibits are fundamentally improper and should 11 not be considered based on controlling Ninth Circuit authority. 12 13 1. The Service Terms and License Agreements.

Exhibits A-G and S-X to the Ott Declaration purportedly consist of five different versions

14 of SCEA's "System Software License Agreement" for the PS3,5 seven different versions of the 15 "Terms Of Service And User Agreement" for the "PlayStation® Network,"6 and a the single 16 version of the "Limited Hardware Warranty and Liability for the PlayStation®3.7 These 17 documents are cited in SCEA's motion to dismiss memorandum as being the "applicable" 18 documents that "authorized SCEA to Issue Firmware Update 3.21." See MTD at 3-5. 19 The Ott Declaration does not ­ and cannot ­ contend that any of these documents are cited 20 in the operative complaint. To the contrary, the pertinent materials referenced in the complaint are 21 SCEA's "advertising, statements, brochures, website information, public statements, owner's 22 manuals, and other representations that the functionality of the PS3 would include both the `Other 23 OS' and the various other advertised functions." See Complaint ¶ 79. SCEA attempts to 24 characterize the documents attached to the Ott Declaration as being the "applicable" agreements 25 26 27 28
5 6 7

See Exhibits B, C, D, S and T See Exhibits E, F, G, U, V, W, and X. See Exhibit A. 4 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

1 and terms of service. See MTD at 3. But even SCEA acknowledges, for example, that "[t]here 2 have been several different versions of the Terms of Service..." Id. at 5. As such, it would be 3 premature and procedurally improper to decide, in connection with the motion to dismiss, that one 4 (or more) of the documents selected by SCEA are the "applicable" contracts. 5 Nor are these documents sufficiently reliable. As discussed above, the Ott Declaration

6 acknowledges that six of these agreements were obtained using a third-party Internet archive 7 website as opposed to discovery materials from Mr. Ott's client's files. As such, the Court should 8 decline to take judicial notice of these materials. See Best Buy Stores, L.P., 2010 U.S. Dist. LEXIS 9 47193, at *6 (declining to take judicial notice of, inter alia, a computer printouts obtained from a 10 website ­ and submitted with the motion to dismiss by the defendant ­ because "they do not satisfy 11 Federal Rule of Evidence 201(b)."). See also, Fant v. Residential Servs. Validated Publ'ns, No. 12 06-CV-00934-SMS, 2007 U.S. Dist. LEXIS 23010, at *11 (E.D. Cal. Mar. 16, 2007) (declining to 13 take judicial notice of "newspaper articles from the internet" because the "facts in the articles in 14 question in the present case are not easily determined facts not subject to reasonable dispute 15 because they are not generally known or capable of accurate and ready determination by resort to 16 sources whose accuracy cannot reasonably be questioned."). 17 The authorities relied upon by SCEA are readily distinguishable. See RJN at 4, n.7. In In 18 re Samsung Elecs. Am., Inc., the plaintiffs "specifically acknowledge[d] the existence of [the 19 applicable] warranty information in each Player's packaging" in the complaint. No. 08-0663 20 (JAG), 2008 U.S. Dist. LEXIS 105199, at *5-6, n.2 (D.N.J. Dec. 31, 2008). Similarly, in 21 Berenblat v. Apple, Inc., there were not multiple versions of a contract presented to the Court, as 22 the pertinent express warranty was referenced in the complaint and at least two of the plaintiffs in 23 24 had actually "exercised their rights under the express warranty." No. 08-4969 JF, 2009 U.S. Dist. 25 LEXIS 80734, at *2, n.3 (N.D. Cal. Aug. 21, 2009) (emphasis added). And while the Court in 26 Datel Holdings, Ltd. v. Microsoft Corp., an antitrust case, ultimately granted the defendant's 27 request for judicial notice, it did so for the limited purpose of recognizing "the existence and 28 content of these documents, though not of their legal effect." No. 09-5535, 2010 U.S. Dist. LEXIS 5 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

1 40021, at *20 (N.D.Cal. Apr. 23, 2010). This Court need not and should not take judicial notice of 2 the multiple versions of agreements attached to the Ott Declaration. Even if it does take judicial 3 notice, however, the documents cannot serve as the legal basis by which to dismiss Plaintiffs' 4 Complaint. 5 6 2. "Screenshots" of Internet Blogs.

Exhibits H, Q, R, consist of "excerpts of postings from Internet webpages cited in

7 Plaintiffs' Consolidated Class Action Complaint," an "Open Platform" document obtained from 8 SCEA's website, and a set of "FAQs" from the "PlayStation® Knowledge Center." See Ott 9 Declaration at ¶¶ 9, 18-19. The RJN claims that these extraneous materials should be considered in 10 resolving the motion to dismiss because the complaint "fail[s] to provide actual screenshots of 11 those webpages [where people have commented on the PS3, and Other OS feature], which include 12 other comments made by PS3 users, many of which respond directly to the postings Plaintiffs 13 quote and thereby contradict Plaintiffs' allegations." See RJN at 5. 14 SCEA does not explain, however, how these "screenshots" of other postings somehow 15 "contradict" the allegations in the complaint. Nor does it contend that these other postings are 16 "central" to Plaintiffs' claims. And even if it could do so, it would not make this extraneous 17 material proper for consideration on a motion to dismiss. Indeed, there are numerous motion to 18 dismiss opinions that have cited to and relied upon postings in the complaint that putative class 19 members made on websites ­ without considering whether there might also be a contradictory 20 view also posted on the Internet. See Falk v. GMC, 496 F. Supp. 2d 1088, 1092 (N.D. Cal. 2007) 21 ("In the complaint, plaintiffs present a number of consumer postings on the Internet which detailed 22 consumer problems with GM speedometers."); see also Henderson v. Volvo Cars of N. Am. LLC, 23 24 No. 09-4146 (DMC), 2010 U.S. Dist. LEXIS 73624, at *3-4 (D.N.J. July 21, 2010) (citing to 25 "widespread complaints...on the internet" cited in the complaint in a motion to dismiss opinion); 26 Contino v. BMW of North Am., LLC, No. 07-5755, 2008 U.S. Dist. LEXIS 59027, at *5 (D.N.J. 27 28 6 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

1 July 29, 2008) (same). These additional documents relied upon by SCEA should, therefore, not be 2 considered.8 3 4 3. Pleadings filed in Other Courts.

Finally, Exhibits H through P to the Ott Declaration are seven complaints recently filed

5 against SCEA related to the same subject matter of this case, as well as a notice of removal in 6 another related case. While Plaintiffs do not contest the authenticity of these documents, the Court 7 should nonetheless decline SCEA's invitation to take judicial notice of them in connection with the 8 MTD. These previously filed complaints have no relevance to this Court's disposition of the 9 motion to dismiss claims in Plaintiffs' operative consolidated complaint. Pursuant to the Case 10 Management Order, to which SCEA agreed, entered by the Court June 30, 2010, this complaint 11 "shall be deemed the operative complaint, superseding all complaints filed in this action, or any of 12 the actions to be consolidated hereunder or in any related cases." See Docket Entry No. 65 at ¶ 11. 13 As such, these previously-filed, superseded complaints are not necessary or proper for this Court's 14 analysis on the MTD. See Alvarez, 2010 U.S. Dist. LEXIS 95109, at *15-16 (declining to take 15 judicial notice of previously filed pleadings); see also Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 16 974, 979 (E.D. Cal. 2000) ("there is no authority for judicial notice of pleadings in an unrelated 17 case..."). 18 19 20 21 The materials annexed to the Ott Declaration go far beyond what is needed for the Court to 22 resolve SCEA's pending motion to dismiss. These documents are not "central" to Plaintiffs' 23 claims, many of them are nowhere referenced in the complaint, SCEA has failed to properly 24 authenticate these materials and ­ with the exception of irrelevant previously filed pleadings ­ they 25 26 In the alternative event that the Court grants SCEA's motion to take judicial notice of these materials, Plaintiffs respectfully request to have an opportunity to submit additional website 27 postings that contradict those relied on by SCEA. This, in and of itself, illustrates why this 28 exercise is premature to conduct on a motion to dismiss. 7 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)
8

II.

CONCLUSION

1 do not contain the indicia of reliability required for the Court to take judicial notice under FED. R. 2 EVID. 201. Accordingly, Plaintiffs respectfully request that the Court decline to take judicial 3 notice of the exhibits attached to the Ott Declaration. 4 5 Dated: October 12, 2010 6 7 8 9 10 11 12 13 14 15 16 17 18 Dated: October 12, 2010 19 20 21 22 23 24 25 26 27 28 Dated: October 12, 2010 CALVO & CLARK, LLP /s/ James A. Quadra James A. Quadra Rebecca Coll One Lombard Street San Francisco, California 94111 Telephone: [phone] Facsimile: 415-374-8373 FINKELSTEIN THOMPSON LLP /s/ Rosemary M. Rivas Rosemary M. Rivas Tracy Tien 100 Bush Street, Suite 1450 San Francisco, California 94104 Telephone: [phone] Facsimile: 415-398-8704 HAUSFELD LLP /s/ James Pizzirusso James Pizzirusso (Pro hac vice) 1700 K St., NW, Suite 650 Washington, DC 20006 Telephone: [phone] Facsimile: 202-540-7201 Co-Interim Lead Counsel for Plaintiffs Douglas G. Thompson FINKELSTEIN THOMPSON LLP 1050 30th Street, NW Washington, DC 20007 Telephone: [phone] Facsimile: 202-337-8090 8 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

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Michael P. Lehmann HAUSFELD LLP 44 Montgomery Street, Suite 3400 San Francisco, California 94104 Telephone: [phone] Facsimile: 415-358-4980 Bruce L. Simon PEARSON, SIMON, WARSHAW & PENNY, LLP 44 Montgomery Street, Suite 2450 San Francisco, California 94104 Telephone: [phone] Facsimile: 415-433-9008 Daniel L. Warshaw PEARSON, SIMON, WARSHAW & PENNY, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, California 91403 Telephone: [phone] Facsimile: 818-788-8104 Joseph G. Sauder Matthew D. Schelkopf Benjamin F. Johns (Pro hac vice) CHIMICLES & TIKELIS LLP 361 W. Lancaster Ave. Haverford, Pennsylvania 19041 Telephone: [phone] Facsimile: 610-649-3633 Ralph B. Kalfayan KRAUSE, KALFAYAN, BENINK & SLAVENS, LLP 625 Broadway, Suite 635 San Diego, California 92101 Telephone: [phone] Facsimile: 619-232-4019 Jeffrey Carton (Pro hac vice) D. Greg Blankinship (Pro hac vice) MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ P.C. 1311 Mamaroneck Avenue White Plains, New York 10605 9 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC)

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Telephone: [phone] Facsimile: 914-517-5055 John R. Fabry (Pro hac vice) WILLIAMS KHERKHER HART BOUNDAS, LLP 8441 Gulf Freeway, Suite 600 Houston, Texas 77017 Telephone: [phone] Facsimile: 713-643-6226 Rosemary Farrales Luzon SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 401 West A. Street, Suite 2350 San Diego, California 92101 Telephone: [phone] Facsimile: 619-234-7334 Counsel for Plaintiffs

I, Rosemary M. Rivas, am the ECF User whose identification and password are being used

15 to file the foregoing PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN 16 OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE. I hereby attest that 17 James A. Quadra and James Pizzirusso have concurred in this filing. 18 Dated: October 12, 2010 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFFS' MPA IN OPPOSITION TO DEF. REQUEST FOR JUDICIAL NOTICE CASE NO. CV 10-1811-RS (EMC) FINKELSTEIN THOMPSON LLP By: /s/ Rosemary M. Rivas Counsel for Plaintiffs