Hendricks v. AT&T Mobility LLC

Filing 28

REPLY (re 18 MOTION to Appoint Counsel Co-Lead Interim Class Counsel ) filed byPatrick Hendricks. (Fisher, Lawrence) (Filed on 3/11/2011)

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BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) 2121 North California Blvd., Suite 1010 Walnut Creek, CA 94596 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] THORNTON, DAVIS & FEIN, P.A. Barry L. Davis (pro hac vice) Daniel R. Lever (pro hac vice) Aaron P. Davis (pro hac vice) 80 SW Eighth Street, 29th Floor Miami, Florida 33130 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff

12 13 14 15 16 17 Plaintiff, 18 v. 19 AT&T MOBILITY, LLC, 20 Defendant. 21 22 23 24 25 26 27 28
REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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

Case No. C11-00409 CRB Hon. Charles R. Breyer PLAINTIFF'S REPLY TO AT&T MOBILITY LLC'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL PURSUANT TO FED.R.CIV.P. 23(G)(3) Date: March 25, 2011 Time: 10:00 a.m. Courtroom 8

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I.

INTRODUCTION

AT&T Mobility LLC ("AT&T") opposes Plaintiff's motion to appoint co-lead interim class counsel on the sole basis that it is premature. AT&T's "premature" argument is threefold: (1) this Court must first decide whether Plaintiff is required to arbitrate his dispute on an individual basis, (2) dispositive motions that would preclude a class action from proceeding remain to be decided, and (3) multiple "copycat" lawsuits have not yet been filed that would require the appointment of interim class counsel. AT&T's "premature" arguments directly contradict its recently filed "Unopposed Motion to Stay" wherein the parties agreed to a temporary stay of the proceedings but "with a single exception: The parties have agreed that briefing and hearing on [Plaintiff's] motion to appoint [colead] interim class counsel ... may proceed notwithstanding the stay." [Doc. 25]. By specifically agreeing that Plaintiff's motion to appoint co-lead interim class counsel could proceed and was not subject to the stay, AT&T expressly waived any such "premature" arguments. Even more

importantly, the decision to appoint co-lead interim class counsel is not premature, is necessary to protect the interests of the proposed class, and will promote efficiency and conserve judicial resources. II. ARGUMENT

The Determination of Arbitration Rights Is Not a Prerequisite to the Appointment of Co-Lead Interim Class Counsel

First, AT&T waived its right to delay the appointment of interim class counsel by specifically agreeing to proceed with Plaintiff's motion for appointment of co-lead interim class counsel. By way of background, Plaintiff's counsel reached an agreement with AT&T whereby the parties agreed to a temporary stay, with one specifically agreed exception, 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)). The basis of this agreement was that the Supreme Court's ruling in Conception may be determinative of whether this Court will be required to enforce the arbitration agreement. If the Supreme Court holds that California law is preempted, then in AT&T's view, this Court will be required to enforce the arbitration agreement. But, if the Supreme Court holds in Concepcion that
REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

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California law is not pre-empted, then this Court will be obliged to deny AT&T's motion to compel arbitration. However, the sole issue that the parties agreed would be specifically excluded from the agreed stay was Plaintiff's motion to appoint co-lead interim class counsel. The

agreement that the appointment of co-lead interim class counsel would not be delayed was the inducement AT&T offered to Plaintiff to secure an agreement from Plaintiff's counsel to stay the remainder of the case pending the Concepcion decision. AT&T cannot now point to the unopposed motion to stay and argue that the appointment of interim class counsel is premature. Second, AT&T argues that the validity of its arbitration provision is a threshold issue that must be decided by this Court before the appointment of co-lead interim class counsel. [Response, p. 3, 4]. As a preliminary matter, the law in this Circuit is crystal clear and has repeatedly established that AT&T has no arbitration rights. See, e.g., Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976 (9th Cir. 2007) (holding arbitration clause prohibiting class actions unenforceable under California law); see also Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1175-76 (9th Cir. 2003); Ting v. AT&T, 319 F.3d 1126, 1148-50 (9th Cir. 2003) (same); Stern v. Cingular Wireless Corp., 2006 WL 2789367 (C.D. Ca. Jul. 28, 2006) (same); and Laster v. TMobile USA, Inc., 407 F. Supp. 2d 1181 (S.D. Ca. 2005) (same). In fact, AT&T recognizes that "[t]he Ninth Circuit has held such agreements are not enforceable under California law." [Response, p. 2; citing Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009), cert. granted sub nom. AT&T Mobility LLC v. Conception, 176 L.Ed.2d 1218, 130 S. Ct. 3322 (2010)]. It is simply illogical to delay the appointment of co-lead interim class counsel on the grounds that that this Court has not yet considered an arbitration clause that AT&T itself recognizes as unenforceable. In sum, AT&T has stipulated to the fact that the determination of arbitration "rights" ­ rights that the parties and this Court recognize as presently unenforceable ­ is not a prerequisite to the appointment of interim class counsel. AT&T then insisted that if Plaintiff's motion to appoint co-lead interim class counsel was to proceed it did not want its agreement to move forward to be used by Plaintiff to later argue that AT&T had waived its right to compel arbitration. Plaintiff specifically agreed that AT&T did not waive any of its rights in connection with an arbitration
REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

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agreement if, in fact, Concepcion reversed the current law in California that holds such arbitration clauses unreasonable.1 B. The Possibility of Dispositive Motions Does Not Bar the Appointment of Co-Lead Interim Class Counsel

AT&T argues that courts "routinely hold that it is premature to appoint `class counsel' when ­ as here ­ dispositive motions that would preclude a class action from proceeding remain to be decided." [Response, p. 3]. As stated above, AT&T should not be permitted to argue that the appointment of interim class counsel is premature when the unopposed motion to stay specifically excluded the instant relief sought. Further, each and every case cited by AT&T in support of its position that the existence of dispositive motions precludes the appointment of interim class counsel is distinguishable. AT&T first relies on Lyons v. CoxCom, Inc., 2009 WL 6607949 (S.D. Cal. July 6, 2009). The Lyons court did not simply state that "appointment of interim class counsel as premature given that the case was still in the pleading stage." [Response, p. 3]. Instead, the Lyons court noted that defendant's motion to dismiss was recently granted and reasoned that "[t]he case has not progressed past the pleading stage as [p]laintiff has yet to file a second amended complaint." Id. Here, Plaintiff's complaint is pending before this Court and has not been challenged by AT&T on any other grounds other than the issue of arbitration ­ an issue that the parties agreed to stay pending a decision from the Supreme Court. Further, there are numerous instances where courts appoint interim class counsel in the earliest stages of the pleadings. For example, in Zepeda v. PayPal, Inc., 2011 WL 570231 (N.D. Cal. February 15, 2011), Judge Jeremy Fogel simultaneously granted PayPal's motion to dismiss and plaintiff's motion to appoint lead interim class counsel. In other words, the court appointed interim class counsel before the initial pleading, an amended complaint, was even filed.

The declaration of Lisa W. Cornehl filed in support of AT&T's motion to stay states in relevant part, "Counsel for Mr. Hendricks subsequently authorized me to inform the court that the parties had stipulated to the following agreement: that ... (3) by responding to Hendricks' motion to appoint interim lead class counsel and to appear at a hearing on that motion, [AT&T] would not waive its right to compel arbitration of Hendricks' claims..." [Doc. 25-1].
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AT&T also relies on Rintel v. Wathen, 806 F. Supp. 1467 (C.D. Cal. 1992), a 1992 case where the court noted that plaintiff's counsel prematurely moved for appointment as class counsel before certification. But that case was decided nearly ten years before Rule 23 was amended to provide for the appointment of interim class counsel. See Fed. R. Civ. P. 23 Advisory Committee Notes (noting that Rule 23(g)(3) was amended in 2003 to provide for appointment of interim class counsel prior to certification). Finally, if dispositive motions are anticipated, it is even more important for the putative class to have the benefit of court-appointed interim class counsel to ensure that they are adequately represented in opposing any dispositive motion. C. The Appointment of Co-Lead Interim Class Counsel Is Necessary and Proper

AT&T argues that Plaintiff has failed to show "some pressing need requiring the Court to appoint interim class counsel now." [Response, p. 1]. AT&T misstates the burden that Plaintiff must meet. Notes accompanying FED.R.CIV.P. 23(g)(3) hold that interim class counsel should be appointed when necessary to protect the interests of the putative class. See, e.g., Parkinson v. Hyundai Motor Am., 2006 WL2289801 at *2 (C.D. Cal. Aug. 7, 2006). Appointment is necessary in the instant matter for several reasons. Appointment of interim class counsel will level the playing field by providing the putative class with the same advantage that AT&T has. AT&T has already chosen its designated counsel and is aggressively preparing its defense of this matter. The putative class should be afforded the same opportunity. Plaintiff's counsel have already demonstrated their ability to properly represent the putative class by undertaking an extensive and costly investigation into the potential claims arising from AT&T's fraudulent billing scheme. [Doc. 5, p. 5]. In addition, Plaintiff's counsel possesses the depth of experience and legal knowledge related to class actions. [Doc. 5, p. 6-8]. Plaintiff's counsel's compliance with all of the Rule 23(g)(1) factors ensures that Plaintiff and those similarly situated are fairly and adequately represented in this action. There is also a significant possibility of "tag-along" cases being filed by other law firms. An interim class counsel appointment will discourage such activities and lead to a more efficient
REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

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use of judicial resources since there will be less likelihood of interference from any other counsel. See, e.g., FED.R.CIV.P. 23, Advisory Committee Notes (2003) (stating that "[i]n some cases ... there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate"). Both the putative class and the Court benefit from the appointment of competent interim class counsel without delay. As a corollary, AT&T contends that it is not necessary to "appoint Plaintiffs' lawyers as `class counsel' before a class has been certified" because "copycat" lawsuits have not yet been filed by other firms. [Response, p. 6]. It should be noted though that it is unclear whether AT&T is taking the position that the Guardian v. AT&T Mobility LLC matter is a related case or not. On the one hand, AT&T argues that it is a lawsuit involving "similar claims," but then also argues that "the lawsuits are not identical."2 [Response, p. 1, 6]. AT&T's ambiguity is simply not helpful in resolving this motion. If Guardian is a "similar claim," AT&T's position is that the appointment of interim class counsel is unnecessary because both cases are stayed. If Guardian is not a "similar claim," then AT&T argues that appointment of interim class counsel is premature because related cases do not exist. Either way AT&T has already appointed its designated counsel but objects to the putative class having the same opportunity. One must question why AT&T so strongly opposes the appointment of interim class counsel. Significantly, AT&T does not attack the suitability of the undersigned counsel in terms of experience, investigation into the instant class action, knowledge of the applicable law, or ability to commit recourses to the instant matter. In regards to the considerations set out in Rule 23(g)(1), it appears that AT&T does not oppose the motion and agrees that Plaintiff's counsel deserves appointment as co-lead interim class counsel. The only plausible rationale for opposition on the basis that it is "premature" would be that AT&T wants to take advantage of the detrimental To be clear, the Guardian v. AT&T Mobility LLC matter is an unrelated and different case. The Guardian matter alleges a class of California residents only, while the instant matter alleges a nationwide class. The Guardian matter alleges fraudulent overbilling, while the instant matter alleges phantom data charges, billing time stamp issues, and data transaction overbilling. Moreover, the Guardian matter does not identify a particular mobile device, while the instant matter addresses the Apple iPhone and iPad and discusses specific testing conducted by an independent consultant.
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consequences to the proposed class; namely, pre-certification disputes between competing counsel that will delay the proceeding, detract from the real issues in the case, and discourage counsel for the putative class from properly prosecuting the matter. It is particularly compelling in this case that Plaintiff's counsel has already spent significant time and money in its pre-suit investigation and representation of the putative class. AT&T would like nothing more than to slow that process down and create uncertainty for the class as to who will be its counsel while it continues to build its defense to the action. In the Zepeda matter discussed above, the defendant did not oppose the motion to appoint interim class counsel, but reserved the right to challenge plaintiff's counsel's suitability as putative class representatives in connection with any motion for class certification. There is no such challenge here. The relief sought herein by Plaintiff does not prejudice AT&T. Finally, AT&T alleges that Plaintiffs' counsel is employing "tactics" that amount to "gamesmanship" and refers to a comment made by the Honorable Manuel L. Real wherein Judge Real commented, "[d]on't play games, counsel." Whatever "tactics" were employed in the case before Judge Real have no bearing whatsoever on the pending motion in this case. Furthermore, Judge Real's mysterious comment from the bench is difficult to interpret, and may have been directed to AT&T's counsel and the "tactics" they employed in that matter. In any event, the pending motion should be judged on its merits, not by trying to divine the meaning of another judge's comment in an unrelated matter. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 6

REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

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 Dated: March 11, 2011

III.

CONCLUSION

In the interest of judicial economy and for the reasons set forth above, Plaintiff respectfully requests that the Court appoint Bursor & Fisher, P.A. and Thornton, Davis & Fein, P.A. as CoLead Interim Class Counsel. BURSOR & FISHER, P.A.

By:

/s/
L. Timothy Fisher

L. Timothy Fisher (State Bar No. 191626) 2121 North California Blvd., Suite 1010 Walnut Creek, CA 94596 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] THORNTON, DAVIS & FEIN, P.A. Barry L. Davis (pro hac vice) Daniel R. Lever (pro hac vice) Aaron P. Davis (pro hac vice) 80 SW 8th Street, 29th Floor Miami, FL 33130 Telephone: [phone] Facsimile: [phone] E-Mails: [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff

REPLY TO AT&T'S OPPOSITION TO PLAINTIFF'S MOTION TO APPOINT CO-LEAD INTERIM CLASS COUNSEL C11-00409 CRB

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