In Re Sony PS3 "Other OS" Litigation

Filing 19

MOTION to Relate Case CORRECTION OF DOCKET # 16 . filed by Todd Densmore, Antal Herz. (Attachments: # 1 Proposed Order Relating Cases)(Tien, Tracy) (Filed on 5/17/2010)

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Rosemary M. Rivas (State Bar No. 209147) [e-mail] Mark Punzalan (State Bar No. 247599) [e-mail] Tracy Tien (State Bar No. 253930) [e-mail] FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiffs Todd Densmore and Antal Herz

8 9 10 11 12 Case No. CV 10-1811 EMC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC SONY COMPUTER ENTERTAINMENT AMERICA, INC., a Delaware corporation, Defendant. v. Defendant. This document also relates to: TODD DENSMORE and ANTAL HERZ, on behalf of themselves and all others similarly situated, Plaintiffs, Case No. CV 10-1945 EDL The Honorable Elizabeth D. Laporte ANTHONY VENTURA, on behalf of himself and all others similarly situated, Plaintiff, SONY COMPUTER ENTERTAINMENT AMERICA INC., ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (Civil Local Rule 3-12) The Honorable Edward M. Chen [Additional Counsel Listed on Signature Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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This document also relates to: JASON BAKER, SEAN BOSQUETT, FRANK BACHMAN, PAUL GRAHAM , and PAUL VANNATA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. SONY COMPUTER ENTERTAINMENT AMERICA, LLC successor to SONY COMPUTER ENTERTAINMENT AMERICA, INC. Defendant. This document also relates to: KEITH WRIGHT, on behalf of himself and all others similarly situated, Plaintiff(s), v.

Case No. 10-cv-1897 SC The Honorable Samuel Conti

Case No. 10-cv-1975 JL The Honorable James Larson

15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 5, 2010, the case titled Densmore et al. v. Sony Computer Entertainment America, Inc. ("Densmore"), CV 10-1945 EDL was filed in the United States District Court for the Northern District of California and assigned to the Honorable Elizabeth B. Laporte. On April 30, 2010, the case titled Baker et al. v. Sony Computer Entertainment, LLC ("Baker"), CV 10-1897 was filed in the United States District Court for the Northern District of California and assigned to the Honorable Samuel Conti. 2 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC SONY COMPUTER ENTERTAINMENT AMERICA INC.; and SONY COMPUTER ENTERTAINMENT AMERICA, LLC. Defendants.

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On May 6, 2010, the case titled Wright v. Sony Computer Entertainment America Inc. et al. ("Wright") was filed in the United States District Court for the Northern District of California and assigned to the Honorable James Larson. Pursuant to Civil Local Rule 3-12, Plaintiffs Densmore and Herz ("Plaintiffs") submit this motion for the Court to consider whether the Densmore, Baker, and Wright actions should be related to the action titled Ventura v. Sony Computer Entertainment America Inc ("Ventura"), CV 10-1811 EMC. Copies of the Densmore, Ventura, Baker, and Wright complaints are attached as Exhibits 1, 2, 3 and 4, respectively, to the accompanying Declaration of Tracy Tien.1 Local Rule 3-12(a) provides that actions are related to another when: "(1) The actions concern substantially the same parties, property, transaction or event; and (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." Densmore, Ventura, Baker, and Wright meet the criteria and should be related because they concern substantially the same parties, property, transaction or event. All four cases are class actions brought on behalf of Sony PlayStation 3 ("PS3") owners and allege violations against Defendant Sony Computer Entertainment America Inc. and/or Sony Computer Entertainment America LLC, as successor (collectively "Sony") for Sony's alleged unlawful removal of PS3 features that Sony had advertised and consumers had paid for. All four cases allege that Sony sold PS3 gaming consoles that included an advertised feature, the "Install Other OS" feature, which allowed users to install operating systems. See Densmore Compl. ¶¶ 17-18; Ventura Compl. ¶¶ 13; Baker Compl. ¶ 16; Wright Compl. ¶ 10-11. The "Install Other OS" feature allowed users to run web browsers and run programs and essentially operate the PS3 like a computer. Densmore Compl. ¶¶17-21, 31-32; Ventura Compl.

On May 14, 2010, Plaintiff Jason Baker in the action, Baker et al v. Sony Computer Entertainment America, LLC, Case No. 10-cv-01897-SC, filed an Administrative Motion to Relate Baker to the Ventura action. 3 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC

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¶ 14-22; Baker Compl. ¶ 30; Wright Compl. ¶ 11-12. Sony advertised the "Install Other OS" as being an important feature to the PS3. Densmore Compl. ¶¶ 19-24; Ventura Compl. ¶¶ 14-16; Baker Compl. ¶ 26; Wright Compl. ¶ 10. On April 1, 2010, Sony released an update, Firmware 3.21. Densmore Compl. ¶ 27; Ventura Compl. ¶ 24; Baker Compl. ¶ 30; Wright Compl. ¶ 14. Users are required to install Firmware 3.21 if they wish to maintain certain PS3 functions for which they paid, such as the ability to play Blu-ray discs and play games online. Densmore Compl. ¶¶ 26, 28-29; Ventura Compl. ¶ 26-29; Baker Compl. ¶ 30; Wright Compl. ¶ 15. Failure to install Firmware 3.21, however, causes users to lose PS3 functionality. Id. If users do install Firmware 3.21, they lose the "Install Other OS" feature, another paid-for and advertised PS3 function. Densmore Compl. ¶¶ 27-29; Ventura Compl. ¶ 23-24; Baker Compl. ¶ 29-30; Wright Compl. ¶ 14. All four cases are brought on behalf persons in the United States who purchased a PS3 from November 17, 2006 to March 27, 2010 and continued to own the PS3 on March 27, 2010. Densmore Compl. ¶ 33; Ventura Compl. ¶ 32; Baker ¶ 33; Wright ¶ 16. All four cases should be related because they name Sony Computer Entertainment America Inc. and/or Sony Computer Entertainment LLC as defendant(s) and concern the same property, transaction, and event, namely, the PS3 gaming console and Sony's removal of the "Install Other OS" feature via Firmware 3.21. Furthermore, all four cases state claims for breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Consumers Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.) and California Unfair Competition Law (Cal. Bus. and Prof. Code §§ 17200, et seq.). Densmore Compl. ¶¶ 41-51, 5568, 82-87; Ventura Compl. ¶¶ 35-71; Baker Compl. ¶ 36-66; Wright Compl. 19-42.2 It appears likely that there will be an unduly burdensome duplication of labor and expense or the possibility of conflicting results if the cases are handled by different judges.

Ventura, Densmore, and Wright also assert a claim for unjust enrichment. In addition, the Densmore Complaint asserts claims for trespass to chattels, and violation of the Computer Fraud and Abuse Act (18 U.S.C. ¶ 1030) and California's False Advertising Law (Cal. Bus. and Prof. Code §§ 17500 et seq.). Densmore Compl. ¶¶ 77-87. 4 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-1811 EMC

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Since all four cases arise from the same practices by Sony and include similar allegations, the factual and legal issues will overlap. To prevent inconsistent and possibly conflicting rulings, it would be in the interest of judicial efficiency to have the same judge handle all four cases. For the foregoing reasons, Plaintiffs respectfully request this Court relate Densmore, Ventura, Baker, Wright.

Dated: May 17, 2010

Respectfully submitted, FINKELSTEIN THOMPSON LLP /s/ Tracy Tien Tracy H. Tien Rosemary M. Rivas Mark Punzalan 100 Bush St., Suite 1450 San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] Douglas G. Thompson Mila F. Bartos FINKELSTEIN THOMPSON LLP The Duval Foundry 1050 30th Street, N.W. Washington, DC 20007 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiffs Todd Densmore and Antal Herz

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