Hendricks v. AT&T Mobility LLC

Filing 25

MOTION to Stay Unopposed filed by AT&T Mobility LLC. Motion Hearing set for 4/8/2011 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. (Attachments: # 1 Affidavit of Lisa W. Cornehl In Support Of Defendant AT&T Mobility LLC'S Motion To Stay, # 2 Proposed Order)(Cornehl, Lisa) (Filed on 3/1/2011)

Hendricks v. AT&T Mobility LLC

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MAYER BROWN LLP JOHN NADOLENCO (SBN 181128) [e-mail] LISA W CORNEHL (SBN 232733) [e-mail] 350 South Grand Avenue 25th Floor Los Angeles, CA 90071-1503 Telephone: [phone] Facsimile: [phone] MAYER BROWN LLP DONALD M. FALK (SBN150256) [e-mail] Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant AT&T Mobility LLC UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 Plaintiff, 19 v. 20 AT&T Mobility LLC, 21 Defendant. 22 23 24 25 26 27 28
DEFENDANT AT&T MOBILITY LLC'S UNOPPOSED MOTION TO STAY; CASE NO. CV11-00409 EMC

PATRICK HENDRICKS, on behalf of himself and all others similarly situated,

Case No. C11-00409 EMC DEFENDANT AT&T MOBILITY LLC'S UNOPPOSED MOTION TO STAY Date: April 8, 2011 Time: 10:00 a.m. Courtroom 8 Honorable Charles R. Breyer

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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on April 8, 2011, at 10:00 a.m., defendant AT&T Mobility LLC ("ATTM") will move and hereby does move this Court for an order temporarily staying all proceedings in this action, except for Plaintiff's Motion to Appoint Co-Lead Interim Class Counsel, which is set for hearing on March 25, 2011. Plaintiff Patrick Hendricks does not oppose this motion. ATTM intends to respond to Hendricks' complaint by moving to compel arbitration in accordance with the arbitration provision in Hendricks' ATTM wireless service agreement. ATTM brings this motion on the ground that a temporary stay of this action pending the U.S. Supreme Court's resolution of AT&T Mobility LLC v. Concepcion--which involves whether the Federal Arbitration Act requires the enforcement of ATTM's arbitration provision--will conserve the Court's and the parties' resources. The motion is supported by the Memorandum of Points and Authorities, the Declaration of Lisa W. Cornehl, and any further briefing or oral argument that ATTM may present at the hearing. STATEMENT OF ISSUE TO BE DECIDED Whether a temporary stay of proceedings is appropriate.

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DEFENDANT AT&T MOBILITY LLC'S UNOPPOSED MOTION TO STAY; CASE NO. CV11-00409 EMC

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MEMORANDUM OF POINTS AND AUTHORITIES ATTM moves for a temporary stay of all proceedings in this action with a single exception: The parties have agreed that briefing and hearing on plaintiff Patrick Hendricks's motion to appoint interim class counsel, currently set for hearing on March 25, 2011, may proceed notwithstanding the stay. With that condition, Hendricks does not oppose this motion for a stay. Declaration of Lisa W. Cornehl (Cornehl Decl.) ¶ 3. Hendricks filed his putative class-action lawsuit in this Court on January 27, 2011. ATTM was served with the summons and complaint on February 8, 2011. ATTM's response to the complaint is due on March 1, 2011. ATTM intends to move to compel arbitration of Hendricks's claims, or, in the alternative, stay the case pending the ruling by the United States Supreme Court in AT&T Mobility LLC v. Concepcion, No. 09-893 (see 130 S.Ct. 3322 (2010)). In Concepcion, the Supreme Court is expected to decide "[w]hether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, preempts applying California's unconscionability law to invalidate ATTM's arbitration agreement. If the Supreme Court holds that California law is preempted, then in ATTM's view, this Court will be required to enforce the arbitration agreement. But, if the Supreme Court holds in Concepcion that California law is not pre-empted, then this Court will be obliged to deny ATTM's motion to compel arbitration of a California customer's claims. The Supreme Court heard oral argument in Concepcion on November 9, 2010 and is expected to issue its ruling by the end of this term (i.e., by June 2011). Under these circumstances, the parties agree that ATTM's obligation to respond to the complaint--i.e., by moving to compel arbitration--should be deferred until Concepcion is decided. Here, a stay of this action pending the outcome of Concepcion is appropriate and will conserve the Court's and the parties' resources. The parties have agreed to keep Hendricks' motion to appoint interim class counsel, set for hearing on March 25, 2011, on-calendar, but otherwise agree that a stay should be enforced for all other proceedings. Cornehl Decl. ¶ 3. More specifically, the parties agree, and ATTM therefore requests, that this Court issue an order providing that (1) ATTM's obligation to respond to the complaint and all further proceedings in this action--except for Hendricks' motion to appoint interim class counsel--be stayed pending 2
DEFENDANT AT&T MOBILITY LLC'S UNOPPOSED MOTION TO STAY; CASE NO. CV11-00409 EMC

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the United States Supreme Court's resolution of Concepcion, (2) the parties stipulate that ATTM's right to compel arbitration will not be waived by opposing the motion to appoint interim class counsel and/or appearing at any hearing on that motion, and (3) the parties must file a joint status report within 14 days of the issuance of the final decision of the Supreme Court.

Dated: March 1, 2011

MAYER BROWN LLP JOHN NADOLENCO LISA W. CORNEHL By: s/ Lisa W. Cornehl Lisa W. Cornehl Attorneys for Defendant AT&T Mobility LLC

Of Counsel: Archis A. Parasharami Theodore J. Weiman MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006-1101 Telephone: [phone] Facsimile: [phone]

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DEFENDANT AT&T MOBILITY LLC'S UNOPPOSED MOTION TO STAY; CASE NO. CV11-00409 EMC