Anderson v. Vizio, Inc. et al

Filing 12

STIPULATION AND ORDER JOINT MOTION AND STIPULATION TO STAY PROCEEDING. Signed by Judge Richard Seeborg on 2/18/16. (cl, COURT STAFF) (Filed on 2/18/2016)

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AKIN GUMP STRAUSS HAUER & FELD LLP
HYONGSOON KIM (SBN 257019)
[e-mail]
4 Park Plaza, Suite 1900
Irvine, CA 92614
Telephone: [phone]
Facsimile: 949.885.4101
PATRICK E. MURRAY (SBN 293765)
[e-mail]
2029 Century City Park East, Suite 2400
Los Angeles, CA 90067-3010
Telephone: [phone]
Facsimile: 310.229.1001
ANTHONY T. PIERCE [To Be Admitted Pro Hac Vice]
[e-mail]
1333 New Hampshire Avenue, N.W.
Washington, DC 20036-1564
Telephone: [phone]
Facsimile: 202.887.4288
Attorneys for Defendants VIZIO, INC. and COGNITIVE
MEDIA NETWORKS, INC. (currently known as VIZIO
INSCAPE TECHNOLOGIES, LLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ROBIN ANDERSON, individually and on
behalf of all others similarly situated,
Plaintiffs,

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v.
VIZIO, INC., a California corporation, and
COGNITIVE MEDIA NETWORKS, INC.,
a Delaware corporation,

Case No. 3:16-cv-00409-RS

JOINT MOTION AND
STIPULATION TO STAY
PROCEEDING; [PROPOSED]
ORDER TO STAY
Date:
Time:

To Be Set
To Be Set

Defendants.

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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS

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Pursuant to Civil L.R. 7-11 and 7-12, Plaintiff Robin Anderson (“Plaintiff”) and Defendants

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VIZIO, Inc., and VIZIO Inscape Technologies, LLC (f/k/a Cognitive Media Networks, Inc.)

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(collectively “Defendants”) hereby stipulate to, and respectfully move the Court for an Order to Stay

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Proceedings pending a ruling by the United States Panel on Multidistrict Litigation (“MDL Panel”) on

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pending applications to transfer to U.S. District Court for the Central District of California for the

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following good cause:

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1.

Plaintiff has alleged certain claims, including a claim under the Video Privacy

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Protection Act (“VPPA”), against Defendants in connection with Plaintiff’s alleged purchase of a

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“Smart Television” sold by Defendant VIZIO, Inc. The complaint primarily concerns Defendants’

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alleged collection and use of viewing information from Plaintiff’s and other Smart Televisions sold by

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VIZIO, Inc.

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2.

As of the filing of this stipulation, fifteen cases, including the above-captioned action,

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are pending in seven different United States District Courts asserting closely related claims against

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VIZIO, Inc. and other defendants. 1 These actions are collectively referred to as the “VPPA Actions.”

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3.

All pending VPPA Actions name VIZIO, Inc. as a defendant. Five cases name only

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VIZIO, Inc. and Cognitive Media Networks, Inc. (an entity that no longer exists and is now known as

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VIZIO Inscape Technologies, LLC) as defendants. Six cases also name VIZIO Holdings, Inc., VIZIO

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Watts & Keeter v. VIZIO Holdings, Inc. et al.
California, filed November 11, 2015; Weiss v. VIZIO, Inc., Case No. 8:15-cv-01984-JLS-KES, C.D. of
California, filed November 25, 2015; Reed v. Cognitive Media Networks, Inc. et al., Case No. 3:15CV-05217-LB, N.D. of California, filed November 13, 2015; Ogle v. VIZIO, Inc., 4:15-cv-00754-JM,
E.D. of Arkansas, filed December 10, 2015; Mason v. VIZIO Holdings, Inc. et al., Case No. 1:15-cv11288, N.D. of Illinois, filed December 15, 2015; Hodges & Richardson v. VIZIO, Inc. & Cognitive
Media Networks, Inc., Case No. 8:15-cv-02090-JLS-KES, C.D. of California, filed December 16,
2015; Levine v. VIZIO, Inc., Case No. 8:15-cv-02151-JLS-KES, C.D. of California, filed December 23,
2015; Jewett et al. v. VIZIO, Inc., Case No. 3:15-cv-06281-JD, N.D. of California, filed December 29,
2015; Sloan v. VIZIO, Inc. & Cognitive Media Networks, Inc., Case No. 8:15-cv-2166-JLS-KES, C.D.
of California, filed December 29, 2015; Pagorek v. VIZIO, Inc. & Cognitive Media Networks, Inc.,
Case No. 2:15-cv-00472-JD-PRC, N.D. of Indiana, filed December 30, 2015; Eddy v. VIZIO, Inc., et
al., Case No. 3:16-cv-00167-EDL, N.D. of California, filed January 11, 2016; Craig v. VIZIO, Inc.,
Case No. 5:16-cv-00026-JSM-PRL, M.D. of Florida, filed January 19, 2016; Anderson v. VIZIO, Inc.
& Cognitive Media Networks, Inc., Case No. 3:16-cv-00409-SK, N.D. of California, filed January 22,
2016; Dassa & Hinerfeld v. VIZIO Holdings, Inc. et al., Case No. 9:16-cv-80130-DMM, S.D. of
Florida, filed January 25, 2016; Milewski v. VIZIO Holdings, Inc., et al., Case No. 3:16-cv-00156-CJCKES, C.D. of California, filed January 29, 2016.
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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS

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Inscape Services, LLC, VIZIO Inscape Technologies, LLC, (f/k/a Cognitive Media Networks, Inc.) as

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defendants. Collectively, these entities are referred to herein as the “Vizio Defendants.”

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4.

The VPPA Actions all allege that some combination of the Vizio Defendants disclosed

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the purportedly private information of individual users of VIZIO Inc.’s Internet-connected televisions

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to third parties. All VPPA Actions allege violations of the VPPA. The complaints also allege

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violations of various state consumer protection statutes. All of the cases are at the early stage of the

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litigation: complaints have been filed, but no responsive pleadings have been filed, no discovery has

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occurred, and there has been no motions practice.

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5.

On December 30, 2015, Plaintiff Daniel Levine filed a Motion for Transfer of Actions

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pursuant to 28 U.S.C. 1407, requesting that the MDL Panel transfer seven VPPA Actions – including

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the above-captioned action – to a single forum for consolidated or coordinated pretrial proceedings in

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the Central District of California. MDL No. 2693, Doc. No. 1.

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6.

On January 20, 2016, the Vizio Defendants filed a Subsequent Motion to Transfer also

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requesting to transfer the same seven cases, as well as certain additional actions filed after Plaintiff

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Levine’s Motion to Transfer, to the Central District of California. MDL No. 2693, Doc. No. 45.

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7.

On January 20, 2016, Plaintiff Beau Wilcox filed a Response in Partial Opposition to

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Motion to Transfer. Wilcox agreed that the related actions should be consolidated for coordinated

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pretrial proceedings, but contended that the cases should be transferred to the Eastern District of

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Arkansas. MDL No. 2693, Doc. No. 42.

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8.

On January 20, 2016, Plaintiffs Palma Reed, Barry S. Weiss, Donald Mason, Deisha

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Hodges, Simone Richardson, Richard Jewett, David Quintanar, Ivee Tolbert, Charon Wright, Rory

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Zufolo, and Steven Eddy (MDL 2693, Doc. No. 48) filed a Response Supporting Transfer. Each of

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these Plaintiffs agreed that the VPPA actions should be coordinated or consolidated for pretrial

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proceedings in the Central District of California.

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On January 20, 2016, Plaintiff Stanley Pagorek filed an Interested Party Response to

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Motion to Transfer. Pagorek agreed that the related actions should be coordinated and have

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consolidated pretrial proceedings but proposed that the cases be transferred to the Northern District of

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Indiana. MDL No. 2693, Doc. No. 43.
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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS

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10.

On January 20, 2016, the following Plaintiffs submitted an Interested Party Response in

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Support of Transfer: (1) Donald Mason (MDL No. 2693, Doc. No. 44); and (2) David Watts and

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Whitney Keeter (MDL No. 2693, Doc. No. 47). Each of these Plaintiffs agreed that the VPPA Actions

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should be coordinated or consolidated for pretrial proceedings in the Central District of California.

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On February 4, 2016, the Vizio Defendants filed a Brief in support of their Subsequent

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Motion to Transfer to further request the transfer of all of the then-pending VPPA actions to the Central

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District of California, Southern Division. MDL No. 2693, Doc. No. 57

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Presently, the MDL Panel has ordered that any Consolidated Responses are due on or

before February 25, 2016. MDL No. 2693, Doc. No. 60.
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Most critically, all counsel in each VPPA Action agree that the VPPA Actions concern

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the same subject matter and should be transferred to a single district. Counsel only dispute the ultimate

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location and judge to whom the VPPA Actions should be transferred. Counsel in the VPPA Actions

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agree that case management issues, including discovery and motion practice, for multiple cases

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involving the same subject matter should be coordinated by a single judge.

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14.

Plaintiff and Defendants stipulate that an interim stay of proceedings would further the

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purposes of MDL consolidation or coordination by conserving judicial resources, preventing

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inconsistent pretrial rulings, and promoting the interest of justice. See also Rivers v. Walt Disney Co.,

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980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (“[I]t appears that a majority of courts have concluded that it

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is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate

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is pending with the MDL panel because of the judicial resources that are conserved.”) (citation

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omitted); Freisthler v. DePuy Orthopaedics, Inc., No. CV 11–6580 DSF (FFMx), 2011 WL 4469532,

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at *2 (C.D. Cal. Sept. 21, 2011) (“The Court concludes that granting a stay pending the MDL panel’s

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transfer determination would conserve judicial resources.”); Pacific Life Ins. Co. v. J.P. Morgan Chase

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& Co., No. SA CV 03–813GLT(ANX), 2003 WL 22025158, at *2 (C.D. Cal. June 30, 2003) (staying

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proceeding pending MDL decision to conserve judicial resources and avoid duplication of pre-trial

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efforts); Hardin v. Merck & Co., No. C 07 0070 SBA, 2007 WL 1056790, at *2 (N.D. Cal. Apr. 5,

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2007) (“The decision to grant or deny a temporary stay of proceedings pending a ruling on the transfer

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of the matter to the MDL court lies within the Court's discretion.”).
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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS

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Plaintiff and Defendants agree that a temporary stay would not unduly prejudice any

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Given the lack of prejudice, and given that Plaintiff and Defendants expect the Judicial

party.

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Panel on Multidistrict Litigation (“JPML”) to rule on the pending MDL applications within a

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reasonable amount of time, the parties believe it prudent to stay this case pending the issuance of the

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JPML’s decision on whether to transfer the related cases to a single forum. Such a stay will maintain

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the status quo pending a decision on the MDL applications pending before the JPML, so the judge to

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whom these actions are ultimately transferred can at that time make all necessary case management

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decisions.

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Defendants are seeking or will seek shortly a similar stay in all VPPA Actions.

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Substantively identical stipulations have already been filed in Watts & Keeter v. VIZIO Holdings, Inc.

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et al.

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01984-JLS-KES, C.D. of California; Reed v. Cognitive Media Networks, Inc. et al., Case No. 3:15-CV-

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05217-LB, N.D. of California; Mason v. VIZIO Holdings, Inc. et al., Case No. 1:15-cv-11288, N.D. of

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Illinois; Hodges & Richardson v. VIZIO, Inc. & Cognitive Media Networks, Inc., Case No. 8:15-cv-

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02090-JLS-KES, C.D. of California; Levine v. VIZIO, Inc., Case No. 8:15-cv-02151-JLS-KES, C.D. of

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California.

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Weiss v. VIZIO, Inc., Case No. 8:15-cv-

Plaintiff and Defendants specifically agree and stipulate that, by joining in this

stipulation, Defendants are not and have not waived or forfeited any right or defense in this case.
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Defendants have further agreed that, within fourteen days after entry of an Order

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staying the instant litigation, Defendants will provide all plaintiffs’ counsel in each VPPA Action with

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(a) copies of the insurance policies under which an insurer may be liable to satisfy all or part of a

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possible judgment in the action or to indemnify or reimburse for payments made to satisfy the

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judgment; and (b) the names of witnesses Defendants at this time intend to present in defense of the

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action along with the corporate title or position of the witnesses identified and a general overview of

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what the witnesses have knowledge of. Plaintiff and Defendants understand that Defendants’ review of

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the facts is ongoing.

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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS

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Plaintiff and Defendants hereby stipulate to the above facts, and request an order (a) staying all

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proceedings in the above-captioned action (including Defendants’ obligations to respond to the

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Complaint) until 30 days after the JPML decides whether to include this case in any centralized

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proceedings under 28 U.S.C. § 1407; and (b) vacating all current deadlines, including any deadlines to

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respond to the Complaint.

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Plaintiff and Defendants further respectfully propose that, if this Court continues to preside

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over this action after the JPML has ruled on the pending Applications, the Court can set a status

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conference at which time the parties can brief the Court on the status of the VPPA Actions and the

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Court can set any relevant case management deadlines.

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Respectfully submitted,

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Dated: February 17, 2016

KAZEROUNI LAW GROUP, APC
ABBAS KAZEROUNIAN
ANDREI ARMAS

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By s/ Andrei Armas
Andrei Armas
Attorneys for Plaintiff ROBIN ANDERSON

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Dated: February 17, 2016

AKIN GUMP STRAUSS HAUER & FELD LLP
HYONGSOON KIM
PATRICK E. MURRAY
ANTHONY T. PIERCE

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By s/ Hyongsoon Kim
Hyongsoon Kim
Attorneys for Defendants VIZIO, INC. and
COGNITIVE MEDIA NETWORKS, INC. (currently
known as VIZIO INSCAPE TECHNOLOGIES,
LLC)

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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Dated:

2/18/16
RICHARD SEEBORG
United States District Judge

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JOINT MOTION TO AND STIPULATION TO STAY PROCEEDING; PROPOSED ORDER

3:15-CV-0409-RS