In Re Sony PS3 "Other OS" Litigation

Filing 28

Declaration of Rosemary M. Rivas in Support of 27 MOTION to Consolidate Cases and Appoint Finkelstein Thompson LLP As Interim, Co-Lead Class Counsel; Memorandum Of Points And Authorities In Support Thereof filed byTodd Densmore, Antal Herz. (Attachments: # 1 Exhibit A)(Related document(s) 27 ) (Rivas, Rosemary) (Filed on 5/19/2010)

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

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 3:10-cv-01811 RS ANTHONY VENTURA, on behalf of himself and all others similarly situated, Plaintiff, SONY COMPUTER ENTERTAINMENT AMERICA INC., Defendant. Date: June 24, 2010 Time: 1:30 p.m. Courtroom: 3 The Honorable Richard Seeborg DECLARATION OF ROSEMARY M. RIVAS IN SUPPORT OF PLAINTIFFS' MOTION FOR ORDER (1) CONSOLIDATING CASES, AND (2) APPOINTING FINKELSTEIN THOMPSON LLP AS INTERIM, COLEAD CLASS COUNSEL

1 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14

This document also relates to: TODD DENSMORE and ANTAL HERZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. SONY COMPUTER ENTERTAINMENT AMERICA, INC., a Delaware corporation, Defendant. 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.

Case No. 3:10-cv-01945 EDL The Honorable Elizabeth D. Laporte

Case No. 3:10-cv-01897 SC The Honorable Samuel Conti

15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS v. SONY COMPUTER ENTERTAINMENT AMERICA INC.; and SONY COMPUTER ENTERTAINMENT AMERICA, LLC. Defendants. 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), Case No. 3:10-cv-01975 JL The Honorable James Larson

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, Rosemary M. Rivas, declare as follows: 1. I am a partner with Finkelstein Thompson LLP, counsel of record for Plaintiffs

Todd Densmore and Antal Herz. I am a member in good standing of the bar of the State of California and am admitted to practice in this Court. I submit this declaration in support of Plaintiffs' motion for an order appointing Finkelstein Thompson LLP as interim, co-lead class counsel. My declaration is based on my firm's records and my personal knowledge of the facts, and, if called to do so, could and would testify competently thereto. FT'S QUALIFICATIONS, EXPERIENCE AND RESOURCES 2. Finkelstein Thompson LLP ("FT") is a 20 lawyer firm with offices on both sides

of the country in San Francisco, California and Washington D.C. FT has been in business for 33 years and is nationally recognized as a premier class action firm. FT's practice focuses on class actions in three key areas: antitrust, consumer fraud and securities violations. Attached hereto as Exhibit A is a true and correct copy of FT's current firm resume, reflecting the firm's experience in class action and other complex litigation. FT has recovered hundreds of millions of dollars on behalf of consumers and investors nationwide. 3. FT's named partners have over 70 years of combined experience in the

prosecution and defense of complex civil and criminal matters. The other partners and associates have extensive experience in a variety of complex litigation fields. The firm has practiced in state and federal trial and appellate courts across the country; before the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal Trade Commission, the Federal Communications Commission, the U.S. Copyright Office, the New York Stock Exchange, the Chicago Board of Trade, the National Association of Securities Dealers, and the National Futures Association. 4. FT has extensive experience in prosecuting class actions from the pleading stage

through trials and appeals, and in handling multi-district and consumer fraud litigation in particular. The firm has represented clients throughout the United States in complex consumer fraud, antitrust, and securities class actions. FT has successfully prosecuted numerous class 3 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

action matters, has held leadership positions in a number of precedent-setting cases, and has developed a reputation for successful and thorough representation of class clients against many of the largest and most powerful companies in the country. 5. FT has the experience, ability and resources to prosecute this action vigorously.

In addition to its attorneys, who have developed a national reputation for excellent work, the firm also maintains a staff of paralegals, litigation support staff and an in-house financial analyst. FT has the financial resources to commit to aggressively litigate this case and fully intends to do so. 6. In affirming an antitrust class action settlement of $49 million achieved by FT,

one of the firms appointed class counsel, the Ninth Circuit stated that there was no dispute "that counsel had considerable experience in litigating antitrust matters, class actions, and other complex litigation." Rodriguez v. West, 563 F.3d 948, 967 (9th Cir. 2009). In Freeland v. Iridium World Communications, Case No. CR 99-1002 (D.D.C.), the Honorable Nanette K. Laughrey commended FT and its co-counsel for their work in achieving a $43.1 million settlement, stating, "[a]ll of the attorneys in this case have done an outstanding job, and I really appreciate the quality of the work we had in our chambers as a result of this case." Similarly, in In re Interbank Funding Corp. Sec. Litig., Case No. 02-1490 (D.D.C.), Judge Bates of the District Court for the District of Columbia observed that FT had "skillfully, efficiently, and zealously represented the class, and . . . worked relentlessly throughout the course of the case." 7. · Representative settled class actions by FT include: National Metals, Inc. v. Sumitomo Corp., Case No. 734001 (Cal. Super. ­ San

Diego): As co-lead counsel in class action for antitrust violations, FT achieved settlements with several defendants for $81 million. · In re Natural Gas Commodity Litigation, Case No. 03cv6186 (S.D.N.Y.): As co-

lead class counsel, FT achieved over $100 million in settlements. · In re Reformulated Gasoline (RFG) Antitrust and Patent Litigation, Case No.

05cv1671 (C.D. Cal.): As co-lead class counsel in class action for antitrust violations, FT achieved a settlement in the amount of $48 million. · Rodriguez v. West, 563 F.3d 948 (9th Cir. 2009): As one of three law firms 4 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

1 2 3 4 5 6 7 8 9 10 11 12

appointed class counsel in class action for antitrust violations in the bar review market, FT achieved settlement in the amount of $49 million which was affirmed by the Ninth Circuit. · Grecian v. Meade Instruments, Inc., Case no. 06cv908 (C.D. Cal.): As Lead

Counsel, FT achieved $3 million settlement on behalf of shareholders claiming securities fraud violations related to alleged illegal backdating of executive stock options. · Holly Glenn v. Polk Audio, Inc., Case No. 99cv4768 (Md. Cir. ­ Baltimore): As

co-lead counsel, FT achieved $4.8 million settlement. · In re Merrill Lynch & Co., Inc. Research Reports Litigation, MDL Docket No.

1484 (S.D.N.Y.): As an executive committee member (and lead counsel in six of the underlying actions), FT achieved $125 million settlement. · PaineWebber Securities Litigation, Case No. 94cv8547 (S.D.N.Y.): As an

executive committee member, FT achieved $200 million settlement. · 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prudential Securities Litigation, MDL Docket No. 1005 (S.D.N.Y.) As executive

committee member & co-chair of the settlement committee, FT achieved $150 million settlement. · Rudolph vs. UT Starcom, et al, Case No. 3:07-CV-04578-SI (N.D. Cal.): As sole

Lead Counsel in securities class action, FT negotiated a settlement totaling $9.5 million. · Conroy, et al. v. 3M Corporation, et al., Case No. 4:00-CV-2810 CW (N.D. Cal.):

As co-lead counsel in class action for antitrust violations, FT achieved a settlement valued at $41 million. 8. · Representative ongoing actions in which FT plays a prominent role include: Lima v. Gateway, Case No. SACV09-01366 DMG (C.D. Cal.): FT serves as lead

counsel in this class action alleging that Gateway made representations that were likely to deceive reasonable consumers and failed to disclose material information in connection with the sale of its computer monitors. In this role, FT persuaded Judge Dolly M. Gee that the case was not subject to the rule announced in Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th 824, 51 Cal. Rptr. 3d 118 (Cal. Ct. App. 2006) and its progeny. As a result of FT's efforts, Judge Gee denied defendant's motion to dismiss in its entirety. 5 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

·

In re Facebook PPC Advertising Litigation, Case No. C 09-03043 JF (N.D. Cal.):

Judge Jeremy Fogel appointed FT as co-lead counsel in this class action on behalf of advertisers alleging charges for "invalid clicks." FT defeated Facebook's attempts to dismiss the litigation at the pleading stage. · In re DirecTV Early Cancellation Fee Marketing and Sales Practices Litigation,

Case No. 8:09-ml-2093AG (C.D. Cal.): Judge Andrew Guilford appointed FT as one of four members of an Executive Committee in this multidistrict litigation. FT has been actively involved in pleading the complaint, motion practice and discovery. · In re Sony PS3 Litigation, Case No. 09-4701 RS (N.D. Cal.): FT serves on the

executive committee in this litigation involving the Sony PlayStation 3 electronic gaming system. In this role, FT was involved in drafting the consolidated complaint and worked on opposing Sony's motion to dismiss, which is currently scheduled for hearing. · Crowley v. J.P. Morgan Chase & Co., Case No. 112540/09 (Sup. Ct. N.Y.): FT

serves as one of two co-leads in this class action alleging that the defendants systemically decrease customer credit limits without timely and reasonable notice of the decrease. In this role, FT has acted as the primary liaison in the communications between Plaintiff and counsel for J.P. Morgan Chase & Co. · Ironworkers Local No. 399 and Participating Employers Health And Welfare

Funds v. Janssen, L.P., Case No. 3:06-cv-03044-FLW-JJH (D.N.J): FT is lead counsel of thirdparty payor class actions alleging that Janssen and Johnson & Johnson promoted and disseminated misleading messages about the safety and efficacy of the off-label use of Risperdal®. To date, FT has, among other things, facilitated the organization of meetings and conference calls with counsel, attended hearings, and managed the filing of the Consolidated Amended Complaint. · In re Aqua Dots Products Liability Litigation, MDL No. 1940, Case No. 1:08-cv-

02364 (N.D.Il.): FT is one of four co-leads in this national class action brought on behalf of purchasers of Chinese-made Aqua Dots toys containing a toxic coating. In this role, FT has 6 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

participated in all aspects of the case, including discovery and drafting the motion for class certification and opposition to the motion to dismiss. QUALIFICATIONS OF FT'S LEAD ATTORNEYS IN THIS ACTION 9. I, along with my partner, Douglas G. Thompson, are the lead attorneys from FT in

the instant litigation. I graduated from the University of California, Hastings College of the Law in May 2000 and was admitted to practice in California in December 2000. I have extensive experience prosecuting class actions, especially in cases arising under California's Unfair Competition Law, Bus. & Prof. Code § 17200 et seq. ("UCL"), California's Consumers Legal Remedies Act, Civ. Code § 1750 et seq. ("CLRA"), and cases involving common law claims for breach of contract and unjust enrichment ­ the types of claims in this litigation. I have spent my entire legal career representing plaintiffs in class action cases. I currently serve as courtappointed interim, co-lead class counsel in In Re Facebook PPC Advertising Litigation, Case No. C 09-03043 JF (N.D. Cal.), as lead counsel in Lima v. Gateway, Inc., Case No. SACV09-01366 DMG (C.D. Cal.), and in a leadership capacity in a number of other class actions, including In Re DirecTV Early Cancellation Fee Litigation, Case No. 09-MDL-2093 AG (C.D. Cal.). In 2009 and 2010, I was selected as a Rising Star by Law & Politics Magazine which recognizes the best lawyers in Northern California 40 years old or younger or in practice for 10 years or less. 10. Additional representative cases that I have worked on and which reached a

successful conclusion include: · In re LookSmart Litigation, Case No. 02-407778 (Cal. Super. Ct. San Francisco):

This national class action suit was based on allegations that LookSmart advertised a "one time payment" for unlimited clicks to websites listed in LookSmart's directory, only to later charge additional payments for continued service and involved claims for breach of contract and violation of the UCL and CLRA, among others. A national class action settlement providing cash and benefits valued at approximately $20 million was granted final approval. · In re iPod Litigation, Case No. CIV 436509 (Cal. Super. Ct. San Mateo County):

This national class action case was based on allegations that Apple, Inc. made material omissions 7 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

and misrepresentations regarding the iPod's battery life in violation of the UCL and the CLRA. The parties reached a nationwide class action settlement providing for warranty extension, battery replacements, cash payments and store credits to class members valued at approximately $15 million. · Lehman v. Blue Shield of California, Case No. CGC-03-419349 (Cal. Super. Ct.

San Francisco County): This class action case was based on allegations that Blue Shield breached the implied covenant of good faith and fair dealing and committed unfair business practices when it implemented risk tier changes and premium increases in connection with its Individual and Family Health Plans. Blue Shield vigorously contested liability and class certification before ultimately agreeing to a cash settlement of $6.5 million on behalf of a California class. · Mackhouse v. The Good Guys ­ California, Inc., Case No. 2002-049656 (Cal.

Super Ct. Alameda County): This national class action suit was filed against The Good Guys and its affiliates alleging violations of the Song-Beverly Warranty Act and other California consumer protection statutes based on allegations that The Good Guys failed to honor its service contracts which were designed and sold to offer customers protection after the expiration of the manufacturer's warranty. A national class settlement providing for cash refunds or services at class members' election was granted final approval. 11. Mr. Thompson has been in private practice for over 30 years. Mr. Thompson

received his A.B. and M.A. degrees in economics from Stanford University and his J.D. degree from Stanford Law School in 1969. He taught at the Stanford Law School in 1969-70 and clerked for Judge Ben. C. Duniway of the United States Court of Appeals, Ninth Circuit, in 1970-71. Following his clerkship, Mr. Thompson joined the law firm of Wilmer, Cutler & Pickering, Washington, D.C., where he was a litigator in communications and securities law. In 1977, he joined with Mr. Burton Finkelstein in the formation of the firm now known as Finkelstein Thompson LLP. 12. Mr. Thompson has represented clients in federal court and before the Securities 8 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

and Exchange Commission, the Commodity Futures Trading Commission, the Federal Trade Commission, the Federal Communications Commission, the Copyright Royalty Tribunal, and the Criminal Division of the Department of Justice. During the late 1980's and early 1990's, Mr. Thompson litigated securities and commodities claims in failed savings and loan cases on behalf of the RTC and FDIC. More recently, Mr. Thompson has turned to the litigation of nationwide antitrust, market manipulation and securities fraud class actions and has been plaintiffs' co-lead counsel, or has served on the plaintiffs' executive committee, in a number of major matters, including Microsoft antitrust, natural gas commodity price manipulation, Sumitomo copper price manipulation and the Merrill Lynch research report fraud litigation. Mr. Thompson also continues to act as defense counsel in securities enforcement matters and recently acted as lead trial counsel in the successful defense of insider trading claims brought by the SEC. FT HAS PERFORMED SIGNIFICANT WORK IN THIS ACTION 13. FT has devoted substantial hours and resources in this action. FT launched its

investigation on March 28, 2010, in response to requests from consumers seeking representation and even before Sony eliminated the "Install Other OS" function. In fact, PS3 users informed FT that they were contacting the firm because they had heard about FT's reputation in pursuing class actions and they believed that FT could help them. As part of its investigation, FT reviewed: (1) Sony's advertisements and public statements about the PS3's features and functionality, including the "Install Other OS Feature," and future firmware updates; (2) Sony's warranty; (3) Sony's terms and conditions; (4) the PS3 owner manual; and (5) Sony's system software licensing agreement. FT extensively investigated Sony's actions, the Firmware 3.21 (including the advantages and disadvantages of installing it), as well as the history of the "Install Other OS" function. Both Plaintiffs Densmore and Herz have been involved in this case and the development of the complaint. 14. Since Densmore was filed, FT has continued to receive inquiries from numerous

PS3 owners regarding the complaint and their possible participation in the action. FT has responded to these inquiries via email and/or telephone and has received additional information 9 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS

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

regarding customer dissatisfaction with Sony's actions. FT has compiled a list of these PS3 owners, their contact information, and the factual information provided to FT. 15. In this litigation, FT reached out to Meiselman, Denlea, Packman, Carton & Eberz

P.C. ("MDPCE"), counsel for Plaintiff Ventura. I contacted Jeffrey Carton of MDPCE the week of May 10, 2010 to discuss strategy for the case and an inclusive co-leadership structure for plaintiffs' counsel that would serve the best interests of the Class. On May 17, 2010, Mr. Carton telephoned me and informed me that MDPCE and Calvo & Clark LLP ("C&C"), the firm that filed the fourth action (Wright), would seek appointment as interim, co-lead class counsel. An hour or so later, MDPCE and C&C filed their motion for appointment of interim, co-lead class counsel. 16. My firm has a reputation for working cooperatively with other firms. The number

of cases in which the firm has served as lead or co-lead counsel, and in others as a member of an executive committee, reflects the firm's ability to work well and successfully with other firms. If my firm is appointed as interim, co-lead class counsel, my firm will ensure that work will be divided fairly amongst interested firms according to their skills and knowledge, and so as to avoid duplication of efforts. I declare under the penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct. Executed this 19th day of May 2010 at San Francisco, California. /s/ Rosemary M. Rivas Rosemary M. Rivas

10 DECLARATION OF ROSEMARY M. RIVAS CASE NO. 3:10-cv-01811 RS