Blaqmoor v. Tracfone Wireless, Inc.

Filing 24

STIPULATION AND ORDER, Motions terminated: (24 in 3:13-cv-05296-EMC) STIPULATION WITH PROPOSED ORDER Regarding Temporary Stay of Proceedings (Corrected) filed by Tracfone Wireless, Inc., (21 in 3:13-cv-05296-EMC) STIPULATION WITH PR OPOSED ORDER Regarding Temporary Stay of Proceedings by Plaintiffs and Defendants TracFone Wireless, Inc. and Wal-Mart Stores, Inc. filed by Tracfone Wireless, Inc., (20 in 3:13-cv-05295-EMC) STIPULATION WITH PROPOSED ORDER Regarding Temporary Stay of Proceedings (Corrected) filed by Tracfone Wireless, Inc., (15 in 3:13-cv-05296-EMC) MOTION to Stay filed by Tracfone Wireless, Inc., (15 in 3:13-cv-05295-EMC) MOTION to Stay filed by Tracfone Wir eless, Inc., (19 in 3:13-cv-05295-EMC) STIPULATION WITH PROPOSED ORDER Regarding Temporary Stay of Proceedings by Plaintiffs and Defendants TracFone Wireless, Inc. and Wal-Mart Stores, Inc. filed by Tracfone Wireless, Inc.. Case Management Statement due by 5/22/2014. Case Management Conference set for 5/29/2014 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 1/27/14. (bpf, COURT STAFF) (Filed on 1/27/2014)

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Michael W. Sobol (State Bar No. 194857)
Nicole D. Reynolds (State Bar No. 246255)
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: [phone]
E-mail: [e-mail]
[e-mail]
Daniel M. Hattis (State Bar No. 232141)
HATTIS LAW
1134 Crane Street, Suite 216
Menlo Park, CA 94025
Telephone: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff

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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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DAVID HANSELL, EDWARD TOOLEY,
and CHRISTOPHER VALDEZ,
individually and on behalf of all others
similarly situated,

Case No. 13-cv-03440-EMC
STIPULATION AND [PROPOSED]
ORDER REGARDING TEMPORARY
STAY OF PROCEEDINGS

Plaintiffs,

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v.

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TRACFONE WIRELESS, INC., d.b.a.
STRAIGHT TALK WIRELESS, and
WAL-MART STORES, INC.,

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Defendants.

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SF1 2003979v.1

STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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MARTIN BLAQMOOR, individually and
on behalf of all others similarly situated,

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Case No. 13-cv-05295-EMC

Plaintiff,

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v.

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TRACFONE WIRELESS, INC.
Defendant.

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MONA GANDHI, MARISHA
JOHNSTON, and MARSHALL TIETJE,
individually and on behalf of all others
similarly situated,

Case No. 13-cv-05296-EMC

Plaintiffs,

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v.

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TRACFONE WIRELESS, INC.
Defendant.

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Pursuant to Civil Local Rules 6-2 and 7-12, Plaintiffs in the above-captioned cases

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(“Plaintiffs”) and Defendants TracFone Wireless, Inc. (“TracFone”) and Wal-Mart Stores, Inc.

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(“Wal-Mart”) (collectively, “Defendants”) jointly request that the Court enter a limited stay of the

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proceedings, including temporarily suspending all currently pending deadlines, in the three

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above-captioned related cases (collectively, the “Hansell Actions”) pursuant to the terms and

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conditions agreed to by the parties and set forth in this Stipulation. As detailed below, Plaintiffs

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have agreed to a limited, ninety (90) day stay of the Hansell Actions in exchange for TracFone’s

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commitment to provide certain discovery and information that Plaintiffs believe will help them

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evaluate the adequacy of the proposed class settlement that Defendants have notified the court of

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in Browning v. TracFone Wireless, Inc., (S.D. Fla. No. 13-cv-22882-Cooke/Turnoff)

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(“Browning”) and also be relevant to TracFone’s pending motion to compel arbitration.
STIPULATION

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WHEREAS, on December 19, 2013, TracFone filed motions to compel arbitration in each

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of the three Hansell Actions, together with declarations of Karen Levine, TracFone’s Senior Vice

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President of Financial Planning;
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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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WHEREAS, Plaintiffs’ oppositions to TracFone’s motions to compel are currently due on

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January 23, 2014; TracFone’s replies are currently due on February 6, 2014; and TracFone’s

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motions to compel are scheduled to be heard by the Court on February 27, 2014 at 1:30 p.m.;

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WHEREAS, on December 5, 2013, Plaintiffs in the Hansell Actions filed in the Browning

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matter a motion to intervene and to dismiss or stay the Browning matter pursuant to the first-filed

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rule; Defendants and plaintiff in Browning have opposed such motion; such motion has now been

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fully briefed; and the Browning court has not yet set a hearing date or ruled on the motion;

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WHEREAS, on December 20, 2013, the parties in Browning filed a Notice of Settlement,
indicating that they had reached an agreement in principle and attached a settlement term sheet
identifying the material terms of the settlement;

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WHEREAS, on January 10, 2014, the parties in Browning filed a notice with the

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Browning court stating that they were working on finalizing their written, long-form settlement

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agreement and intend to file the settlement agreement, along with a motion for preliminary

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approval of settlement, on or before January 24, 2014;

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WHEREAS, on December 31, 2013, TracFone filed a motion in this Court to stay the

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Hansell Actions, in light of the settlement in Browning, which on January 14, 2014, Plaintiffs in

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the Hansell Actions opposed;

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WHEREAS, TracFone’s reply in support of its motion to stay the Hansell Actions is

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currently due on January 21, 2014; and TracFone’s motion to stay is scheduled to be heard by the

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Court on February 27, 2014 at 1:30 p.m;

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WHEREAS, on November 25, 2013, Plaintiffs served on Defendants their First Sets of

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Requests for Production of Documents, and Defendants’ responses thereto are currently due on

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January 17, 2014;

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED as follows:

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1.

TracFone shall produce the following documents and information to Plaintiffs,

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subject to the conditions set forth below. Unless otherwise specified below, TracFone shall

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provide responsive documents and information pertinent to the period up to and including

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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December 31, 2013;
(a)

TracFone agrees to produce readily available documents reflecting TracFone’s

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decisions regarding marketing certain Straight Talk, Net10, Simple Mobile, and TelCel plans as

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providing “unlimited” data, including but not limited to any communications with or documents

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created by a third-party advertising agency, to the extent such documents exist.

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(b)

TracFone agrees to create and produce a chart and/ or readily available

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contemporaneous documents, reflecting all of TracFone’s policies or practices concerning

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throttling or terminating unlimited plan customers’ data, including any internally established data

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usage limits.

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(c)

TracFone agrees to provide, for every year during the proposed settlement class

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period, the number of (1) Straight Talk unlimited plans purchased; (2) Net10 unlimited plans

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purchased; and (3) TelCel unlimited plans purchased, along with a breakdown of the types of

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unlimited plans purchased (e.g., [XX] Straight Talk 1-month unlimited plans purchased in 2009;

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[XX] Straight Talk 3-month unlimited plans purchased in 2009; etc.). TracFone also agrees to

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provide in its response information regarding Simple Mobile for the period of May 14, 2013

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through December 31, 2013.

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(d)

TracFone agrees to provide a written response setting forth the number of persons,

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listed by state of residency, who activated either a Straight Talk, Net10, Simple Mobile, or TelCel

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unlimited plan during the proposed settlement class period (e.g., [XX] persons purchased Straight

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Talk unlimited plans in California; [XX] purchased Simple Mobile unlimited plans in California,

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etc.), however TracFone estimates that it has addresses for only about one-third of the class, and

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will therefore be providing these numbers based primarily on the zip codes customers provided

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when they activated their plans, which may or may not reflect customers’ states of residence.

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TracFone does not verify the accuracy of the names and address information that its customers

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provide.

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(e)

TracFone agrees to provide a written response setting forth the different prices at

which consumers could purchase each type of Straight Talk, Net10, Simple Mobile, or TelCel

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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unlimited plans during the class period, and the timeframe during which the plans were offered at

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such prices.

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(f)

TracFone agrees to provide either a written response or report setting forth

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average lengths of time (e.g., number of months, including recurring months paid for through

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renewal payments) customers paid for and utilized Straight Talk, Net10, Simple Mobile, or

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TelCel unlimited plans.

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(g)

TracFone agrees to provide documents or data reflecting the number of people for

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whom TracFone (1) throttled data and (2) suspended/terminated data on Straight Talk, Net10,

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Simple Mobile, and TelCel unlimited plans prior to the expiration of those plans during the

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proposed settlement class period, but TracFone represents that for most of the time period at

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issue, it cannot determine the number of times such persons had their data throttled and/or

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suspended/terminated, because TracFone kept track only of the most recent date that a customer’s

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data was throttled and/or suspended/terminated.

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(h)

TracFone represents that it does not have fully accurate records showing the

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number of persons to whom compensation was given, or the type of compensation given, for

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having their data, talk, and text services terminated, but TracFone agrees to provide a written

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narrative response setting forth the general types of considerations their customer service

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representatives were authorized to—and did—provide to such customers, including scripts that

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are readily available and which were used by personnel in the call centers.

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(i)

TracFone agrees to produce readily available documents reflecting any external or

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internal studies, surveys, investigations, or memoranda regarding their decisions to market the

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Straight Talk, Net10, Simple Mobile, or TelCel plans as “unlimited,” including but not limited to

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any documents reflecting any value assigned to marketing the plans as “unlimited,” to the extent

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any such documents exist;

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(j)

TracFone agrees to provide a written statement setting forth the number of Straight

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Talk, Net10 or TelCel branded and locked cell phones customers purchased during the proposed

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settlement class period, and the range of prices at which customers could purchase such phones,

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SF1 2003979v.1

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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as well as for the period for which is has such relevant information for Simple Mobile.
(k)

TracFone agrees agree to provide a written statement setting forth the number of

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Straight Talk, Net10 or TelCel SIM cards or Activation kits/codes customers purchased during

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the proposed settlement class period, and the range prices at which customers could purchase

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such SIM cards or Activation kits/codes, as well as for the period for which is has such relevant

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information for Simple Mobile.

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(l)

TracFone agrees to provide readily available documents reflecting the majority of

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revisions to TracFone’s marketing materials that allegedly “inform customers of the levels at

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which their data services is subject to throttling”

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(m)

Defendants agree to provide all settlement-related discovery, including all

deposition transcripts, exchanged and/or produced in Browning;
(n)

Defendants agree to provide all written correspondence between plaintiff’s counsel

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and defendants’ counsel in Browning regarding the proposed settlement, other than any

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documents that defendants or plaintiff in Browning claim to be subject to the Mediation Privilege

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and/or any Mediation Confidentiality Agreement in Browning.

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2.

TracFone shall make Karen Levine available for deposition in Miami, regarding

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issues related to TracFone’s pending arbitration motions and the subjects listed in paragraphs 1(a)

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through 1(m) above, by no later than February 28, 2014.

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3.

In exchange for the discovery described in paragraphs 1 through 2, above,

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Plaintiffs agree to a limited stay of the Hansell Actions. Specifically, the parties agree to a stay of

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proceedings in the Hansell Actions subject to the following conditions:

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(a)

The documents and information described in paragraph 1, above, are being

produced by TracFone and not by Wal-Mart.
(b)

The documents and information described in paragraph 1, above, are being

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produced on a voluntary basis in accord with documents and information readily available to

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TracFone. TracFone further represents that it is producing the documents and information in a

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good faith attempt to provide documentation and information that is genuinely responsive to

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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plaintiffs’ requests for discovery.
(c)

The documents and information provided by TracFone, as described in paragraph

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1, may be used in the Browning action and the Hansell Actions should the stay be lifted in one or

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more of those cases. Testimony from the deposition described in paragraph 2, above, may be

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used in the Browning action and the Hansell Actions should the stay be lifted in one or more of

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those cases.

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(d)

The stay in the Hansell Actions shall apply to all discovery and all pending

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motions in the Hansell Actions (including TracFone’s pending motions to compel arbitration and

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TracFone’s pending motion to stay) and all other possible motion practice in the Hansell Actions;

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however, the stay shall not apply to any countervailing order or direction from the Hansell court

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or the Browning court.

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(e)

The stay in the Hansell Actions shall be automatically deemed lifted after ninety

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(90) days from the date of this Stipulation; however, the Hansell court may, on its own or at the

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request of either or both parties, extend the stay.

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(f)

If the Browning matter is dismissed or stayed pursuant to the motion of the

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Hansell Plaintiffs to Intervene and to Dismiss or, in the Alternative, to Stay Pursuant to the First-

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Filed Rule, then the stay in the Hansell Actions shall be immediately terminated.

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(g)

If preliminary approval of the settlement is denied in the Browning matter, then the

stay in the Hansell Actions shall be immediately terminated;
(h)

Defendants agree that Plaintiffs’ consent to a stay shall not be construed as an

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indication or admission that the jurisdiction of the Hansell court is less preferable than any other

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jurisdiction, and they will not advance such an argument, for instance in connection with the

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pending motion to intervene and dismiss/stay the Browning matter;

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(i)

Plaintiffs agree that Defendants’ production of information and testimony shall not

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be construed as an indication or admission that the Browning court should stay or dismiss that

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matter or that the Hansell Actions should not be stayed. Plaintiffs agree that they will not

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advance any such argument.

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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(j)

With respect to the documents and information described in paragraph 1, above,

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TracFone will produce as much information and documentation that it can gather, in good faith,

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by January 24, 2014, and in any event will expend best efforts to produce the remainder of any

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documents and information it has agreed to produce no later than February 7, 2014.

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(k)

To the extent the stay is lifted in the Hansell Actions, Plaintiffs’ counsel shall

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make the named plaintiffs available for deposition regarding arbitration issues prior to any

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hearing in the Hansell Actions regarding TracFone’s pending arbitration motions.

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(l)

Plaintiffs shall provide TracFone with the telephone numbers for the named

plaintiffs’ TracFone phones. This information shall be provided by no later than January 24,
2014.
(m)

Both parties reserve the right to seek to take steps to resolve any dispute regarding

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the discovery obligations in this agreement in the Hansell Actions or in Browning according to

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the procedures for resolving discovery disputes.

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(n)

It is agreed that TracFone and Wal-Mart may file a notice of filing in Browning

making the court aware of this stipulation.

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IT IS SO STIPULATED.
Dated: January 17, 2014

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Respectfully submitted,
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By: s/ Michael W. Sobol
Michael W. Sobol

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Michael W. Sobol
[e-mail]
Nicole D. Reynolds
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: [phone]

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SF1 2003979v.1

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

Daniel M. Hattis
[e-mail]
HATTIS LAW
1134 Crane Street, Suite 216
Menlo Park, CA 94025
Telephone: [phone]

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Attorneys for Plaintiff
Dated: January 17, 2014

SIDLEY AUSTIN LLP

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By: s/ Joel S. Feldman
Joel S. Feldman

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Joel S. Feldman (admitted pro hac vice)
[e-mail]
Lisa E. Schwartz (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, Illinois 60603

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Ryan M. Sandrock
[e-mail]
555 California Street, Suite 2000
San Francisco, California 94104

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Steven J. Brodie (pro hac vice to be submitted)
[e-mail]
Aaron S. Weiss (pro hac vice to be submitted)
[e-mail]
CARLTON FIELDS, P.A.
Miami Tower
100 SE Second Street, Suite 4200
Miami, FL 33131-2119

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Attorneys for Defendants

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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SIGNATURE ATTESTATION

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I am the ECF User whose identification and password are being used to file the foregoing

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Stipulation and [Proposed} Order Regarding Temporary Stay of Proceedings. In compliance with

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General Order 45.X.B., I hereby attest that the signatory has concurred in this filing.

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Dated: January 17, 2014

SIDLEY AUSTIN LLP

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By: s/ Ryan M. Sandrock
Ryan M. Sandrock
[e-mail]
555 California Street, Suite 2000
San Francisco, California 94104

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STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC

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Pursuant to Stipulation, it is so ORDERED. All motion hearings are vacated.
Parties to renotice the motions. CMC is reset for 5/29/14 at 9:00 a.m.
A joint CMC Statement shall be filed by 5/22/14.
Dated: ____________, 2014
_____________________________________
1/27
S DISTRICT
EDWARD M. CHEN ATE
C
United States District T
Judge

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ORDER

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SF1 2003979v.1

STIP. AND [PROPOSED] ORDER RE TEMPORARY
STAY OF PROCEEDINGS; CASE NOS., 13-CV-02440EMC, 13-CV-05295-EMC, 13-CV-05296-EMC