In Re Sony PS3 "Other OS" Litigation

Filing 188

MOTION to Relate Case filed by Sony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. (Ott, Carter) (Filed on 12/27/2011)

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LUANNE SACKS, Bar No. 120811
[e-mail]
CARTER OTT, Bar No. 221660
[e-mail]
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
JOSEPH COLLINS
Appearing Pro Hac Vice
[e-mail]
DLA PIPER LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, IL 60601
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant SONY COMPUTER
ENTERTAINMENT AMERICA LLC and NonParty SONY NETWORK ENTERTAINMENT
INTERNATIONAL LLC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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IN RE SONY PS3 OTHER OS
LITIGATION

ADMINISTRATIVE MOTION TO
CONSIDER WHETHER CASES SHOULD
BE RELATED

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(CIVIL LOCAL RULES 3-12 AND 7-11)

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Case No.: C 10-1811 RS

HENRY GARCIA, on behalf of himself,
all others similarly situated and the general
public,

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Plaintiff,
v.
SONY COMPUTER ENTERTAINMENT
AMERICA LLC and ACTIVISION
BLIZZARD, INC.,

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Case No.: C 11-2246 RS

Defendants.

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DLA P IPER LLP (US)

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SAN FRANCISCO

ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NO. C 10-1811 RS
WEST\228455805.3

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I.

INTRODUCTION
Defendant Sony Computer Entertainment America LLC (“SCEA”) and non-party Sony

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Network Entertainment International LLC (“SNEI”) are named as defendants in a putative class

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action initiated in this District titled Fineman v. Sony Network Entertainment International LLC,

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et al., Case No. 11-cv-05680 (“Fineman”). SCEA and SNEI respectfully submit this

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Administrative Motion to consider whether the Fineman action should be related to the above-

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captioned matters: In re Sony PS3 Other OS Litigation, Case No. 10-cv-1811-RS (“Other OS”)

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and Garcia v. Sony Computer Entertainment America, LLC, et al., Case No. 11-cv-02246-RS

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(“Garcia”), which, good cause appearing, was previously reassigned to the Hon. Richard

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Seeborg, sua sponte.1 Because the requirements of Local Rule 3-12(a) are satisfied, the Court

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should relate Fineman to the Other OS and Garcia matters.

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II.

THE CASES ARE RELATED UNDER LOCAL RULE 3-12(a)
Pursuant to Local Rule 3-12(a), an action is related to another when:

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(1) The actions concern substantially the same parties, property,
transaction or event; and

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(2) It appears likely that there will be an unduly burdensome duplication
of labor and expense or conflicting results if the cases are conducted
before different Judges.

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L.R. 3-12(a). These criteria are clearly satisfied here. The named plaintiff in Fineman seeks to

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represent a class of PS3 purchasers who accessed the PlayStation®Network (“PSN”), a class that

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overlaps with the purported class of PS3 purchasers in both Other OS and Garcia. SCEA, a

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defendant in both Other OS and Garcia, is (with other Sony entities) a defendant in Fineman as

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well. Thus, all three actions concern substantially the same parties.
Each case likewise involves overlapping property (the PS3) and transactions (access to the

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PSN and agreement to associated Terms of Service and User Agreements) and seeks duplicative

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relief in the form of restitution of part or all of the PS3 purchase price. For example, the plaintiff

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in Fineman argues that SCEA and other Sony entities improperly precluded PSN access for

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consumers who did not agree to revised PSN terms of service, while the plaintiffs in Other OS

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DLA P IPER LLP (US)

See the Declaration of Carter Ott (“Ott Decl.”), Ex. A, filed herewith.
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SAN FRANCISCO

ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NOS. C 10-1811 RS & C 11-02246 RS
WEST\228455805.3

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argued that SCEA improperly precluded PSN access for consumers who did not agree to a

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specific PS3 firmware update. The Court addressed the continued availability of PSN access at

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length in its December 8, 2011 Other OS order; this issue may similarly need to be addressed in

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Fineman.

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III.

THE COURT MAY RELATE FINEMAN TO THE DISMISSED OTHER OS.
The Court recently dismissed the Other OS action with prejudice.2 In the interest of

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conserving judicial resources, the Court may nonetheless relate the Fineman and Other OS cases.

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Local Rule 3-12(b) specifically anticipates this situation, requiring a motion such as this from any

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party who “knows or learns that an action, filed in or removed to this district is…related to an

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action which is or was pending in his District.” L.R. 3-12(b) (emphasis added).

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This Rule recognizes that the efficiency gains associated with assigning related cases to

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the same Judge do not depend on the cases pending simultaneously. A Judge assigned to a case

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related to a previously dismissed matter will be familiar with the overlapping issues whether or

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not the case providing that familiarity has been resolved. For example, in both Benavides v.

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Bush, 2008 WL 170431 (N.D. Cal. Jan. 18, 2008) and Goodman Ball, Inc. v. Mach II Aviation,

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Inc., 2010 WL 4807090 (N.D. Cal. Nov. 19, 2010), newly-filed cases were related to matters that

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had been previously dismissed. Benavides at *1 (relating cases where plaintiff previously sued

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the same defendant in a dismissed matter); Goodman Ball at *3 (relating cases despite the

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addition of defendants not parties to previously dismissed matter).

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IV.

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MEMBERS OF THE PUTATIVE CLASS IN FINEMAN OVERLAP WITH THE
PUTATIVE GARCIA CLASS.
The putative class in Garcia is so broad that it encompasses members of the putative class

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defined in Fineman. Garcia was brought against SCEA on behalf of “[a]ll persons who

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purchased a non-‘Slim’ model of SONY’s Playstation®3 console in the United States from the

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date they were first sold until the date notice is provided to the Class.”3 The Fineman action was

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brought on behalf of “[a]ll individuals in the United States of America who (a) purchased a new

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DLA P IPER LLP (US)

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In re Sony PS3 Other OS Litig., 2011 WL 6117892 (N.D. Cal. Dec. 8, 2011)
Ott Decl., Ex. B, ¶ 54.
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SAN FRANCISCO

ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NOS. C 10-1811 RS & C 11-02246 RS
WEST\228455805.3

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Sony PlayStation 3 (PS3) prior to September 15, 2011, and (b) accessed the Sony PlayStation

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Network (PSN) through their PS3 prior to September 15, 2011 and accepted the Sony

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Entertainment Network Services’ Terms of Service and User Agreement.”4
In other words, the putative classes in both cases include PSN users who purchased a non-

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“Slim” PS3 from November 17, 2006 (when the PS3 was first sold) until September 14, 2011.

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Resolving whether these classes are appropriate for certification will be far more efficient before

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one Judge already familiar with the products and concepts at issue and will eliminate the risk of

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inconsistent results.

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V.

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THERE WILL BE AN UNDULY BURDENSOME DUPLICATION OF LABOR
AND EXPENSE OR CONFLICTING RESULTS IF THE CASES ARE
CONDUCTED BEFORE DIFFERENT JUDGES.

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If the Fineman case is conducted before a different judge, there will be obvious

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duplication of the Court’s efforts in Other OS and its continuing efforts in Garcia. Each case will

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require familiarity with similar issues such as the PSN Terms of Service and User Agreement and

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the functions and uses of the PS3 or PSN. This Court already obtained familiarity with such

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issues during the pendency of the Other OS case and Garcia matters. Moreover, SCEA would be

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required to defend related lawsuits before separate judges of the same district court at the same

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time, where the lawsuits describe overlapping putative classes disputing the same property and

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transactions. See In re Leapfrog Enterprises, Inc. Securities Litigation, 2005 WL 5327775, at *1

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(N.D. Cal. Jul. 5, 2005). Because the requirements of Local Rule 3-12(a) are satisfied, the Court

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should relate Fineman to the Other OS and Garcia matters.

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Finally, both Garcia and Fineman remain at very early stages of litigation, such that there

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would be no risk of possible prejudice to the parties in Fineman if this Court were to assume that

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assignment. In the Garcia case, the named plaintiff filed a Second Amended Class Action

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Complaint only two months ago, which is currently the subject of a motion to dismiss. The

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Fineman case was filed just last month.

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IV.

Based on the foregoing, defendant SCEA and non-party SNEI respectfully request that, in

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CONCLUSION

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Id., Ex. C, ¶ 26.
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DLA P IPER LLP (US)
SAN FRANCISCO

ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NOS. C 10-1811 RS & C 11-02246 RS
WEST\228455805.3

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accordance with Local Rule 3-12, the Fineman case should be related to the Other OS and Garcia

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cases and assigned to this Court.

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Dated: December 22, 2011

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DLA PIPER LLP (US)
By /s/ Carter Ott
CARTER OTT
Counsel for Defendant Sony Computer
Entertainment America LLC and Non-Party
Sony Network Entertainment International LLC

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DLA P IPER LLP (US)
SAN FRANCISCO

ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NOS. C 10-1811 RS & C 11-02246 RS
WEST\228455805.3