O'Bannon, Jr. v. National Collegiate Athletic Association et al
Letter from Jon T. King and Robert B. Carey Letter re Consolidation and Interim Co-Lead Counsel Meet/Confer Process. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(King, Jon) (Filed on 1/11/2010)
O'Bannon, Jr. v. National Collegiate Athletic Association et al
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415.633.1908 ph 415.358.4980 fax 44 Montgomery Street Suite 3400 San Francisco, CA 94104
Jon T. King email@example.com
January 11, 2010
VIA HAND DELIVERY The Hon. Claudia Wilken United States District Court Northern District of California Oakland Division 1301 Clay Street, Suite 400 S Oakland, CA 94612-5212 Re: Keller v. Electronic Arts, Inc., et al., Case No. C 09-01967 CW ("Keller"); O'Bannon, Jr. v. NCAA, et al., Case No. C 09-03329 CW ("O'Bannon"); Bishop v. Electronic Arts, Inc., et al., Case No. C 09-04128 CW ("Bishop"); Newsome v. NCAA, et al., Case No. C 09-04882 CW ("Newsome"); Anderson v. NCAA, et al., Case No. C 09-05100 CW ("Anderson"); Wimprine v. NCAA, et al., Case No. C 09-05134 CW ("Wimprine"); Jacobson v. NCAA, et al., Case No. C 09-05372 CW ("Jacobson"); Rhodes v. NCAA, et al., Case No. C 09-05378 CW ("Rhodes") (collectively, informally known as the "NCAA Cases")
Dear Judge Wilken: We are among the counsel for Plaintiff Samuel Keller and Plaintiff Edward O'Bannon, Jr., respectively, in the above-captioned Keller and O'Bannon actions. On December 17, 2009, the Court held a hearing on numerous motions in the NCAA Cases, including (1) a motion to appoint the undersigned firms Hagens Berman Sobol Shapiro LLP ("HBSS") and Hausfeld LLP ("Hausfeld") as interim co-lead counsel for the plaintiff classes; and (2) a motion to consolidate the Keller and O'Bannon cases, as well as a Case Management Conference. We write to apprise the Court of the discharge of our duties to confer on the interim colead counsel appointment and consolidation issues with counsel for all plaintiffs in the NCAA Cases. Specifically, at the December 17th hearing, the Court stated the following with respect to the O'Bannon and Keller actions, as well as all of the other NCAA Cases:
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The Hon. Claudia Wilken 1/11/2010 Page 2 In terms of consolidation, I'm generally inclined to consolidate for all purposes with the possible exception of trial. And if I do consolidate all the cases, and it turns out that the trial isn't manageable with all those issues, then we can always deconsolidate and pick and choose what issues should be tried together or separately. But in terms of scheduling and case management and discovery, I think it makes most sense to consolidate them and do the things in the most efficient way that we can. See 12/17/09 Hearing Tr., 8:25 9:8. The Court later stated the following: As far as all the other cases, most of them, I guess, are amenable to consolidation and agreeable to you all as being lead counsel, but it's not clear that everyone is. Maybe you can try to talk to them all and see if you can reach some sort of agreement? Id., 68:6 68:11. The Court's Minute Order dated 12/17/09 further stated that "[p]arties to meet and confer re interim lead counsel . . ." See Keller Dkt. Entry No. 141. The undersigned have extensively conferred with counsel for plaintiffs in all of the NCAA Cases. We have authority to convey that all plaintiffs in the NCAA Cases support consolidation of all actions. All of the plaintiffs support appointment of HBSS and Hausfeld as interim co-lead class counsel except the plaintiff in the Bishop action. Plaintiff's counsel in the Bishop action would like certain assurances of priority work assignments with respect to the Keller right of publicity claims, and the proposed co-lead firms are unable to give those assurances. The undersigned previously submitted two [Proposed] Orders with respect to their joint motions regarding consolidation and the appointment of interim co-lead counsel for the proposed classes. See Keller Dkt. Entry Nos. 69, 81 (motions) and 69-2, 81-3 ([Proposed] Orders). With respect to consolidation, all of the above-captioned cases other than Keller and O'Bannon were filed subsequent to the motion to consolidate. We therefore have submitted an Amended [Proposed] Order that (1) encompasses all of the above-captioned cases; and (2) reflects that a Consolidated Amended Complaint will be filed within thirty (30) days after issuance of the Court's last-filed Order on the pending motion to consolidate; the pending motions to dismiss the Keller and O'Bannon complaints (Keller Dkt. Entry Nos. 34, 47, and 48; O'Bannon Dkt. Entry Nos. 91, 92); Defendant Electronic Arts Inc.'s pending motion to strike all causes of action
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The Hon. Claudia Wilken 1/11/2010 Page 3 in the Keller Complaint (Dkt. Entry No. 35); and Plaintiffs Samuel Michael Keller's and Edward C. O'Bannon, Jr.'s Motion for Appointment of Interim Co-Lead Counsel Pursuant to Federal Rule of Civil Procedure 23(g)(3) (Keller Dkt. Entry No. 81). In the original [Proposed] Order, Plaintiffs requested that the deadline for filing the Consolidated Amended Complaint be within ten (10) days of the issuance of any order granting consolidation. However, Plaintiffs had sought to stay briefing on motion to dismiss practice at that time (see Keller Dkt. Entry No. 70, Motion to Extend All Deadlines Pending Determination on Motion to Consolidate Actions) (not ruled upon). Plaintiffs did not envision at the time needing to incorporate any guidance from the Court in orders on the motions to dismiss, nor did they envision needing to coordinate with six other plaintiffs and sets of counsel. Given the changed circumstances, thirty (30) days is an appropriate deadline. With respect to the appointment of interim co-lead counsel for the putative classes, the undersigned also have submitted herewith an Amended [Proposed] Order. The Court and Plaintiff O'Bannon's counsel Michael Hausfeld had the following exchange at the December 17th hearing: THE COURT: And in terms of interim lead counsel, your idea was that your firm and . . . [the] Hagens Berman firm would be co-lead counsel, one concentrating on the antitrust and one concentrating on the right of publicity? MR. HAUSFELD: Yes, and because of the fact that there would be clearly overlap in terms of the discovery that there be coordination as result of that. 12/17/09 Hearing Tr., 67:20 - 68:5. Plaintiffs' original [Proposed] Order was not specific on the primary responsibilities for the various claims, and the accompanying Amended [Proposed] Order corrects that omission. Given the substantial time that these matters have been pending, we respectfully request expedited consideration and entry of the attached Amended [Proposed] Orders so that HBSS and Hausfeld may begin formally coordinating the future prosecution of this litigation Please let us know if there is any more information that we can provide to the Court on these matters.
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The Hon. Claudia Wilken 1/11/2010 Page 4 .
Sincerely, /s/ Jon T. King_____________ Jon T. King Hausfeld LLP Counsel for Plaintiff O'Bannon /s/ Robert B. Carey_____________ Robert B. Carey Hagens Berman Sobol Shapiro LLP Counsel for Plaintiff Keller
Attachments (two Amended [Proposed] Orders) cc: All Counsel on Registered in ECF System in the NCAA Cases
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The Hon. Claudia Wilken 1/11/2010 Page 5 I, Jon T. King, am the ECF User whose ID and password are being used to file this LETTER FROM JON T. KING AND ROBERT B. CAREY TO THE HON. CLAUDIA WILKEN In compliance with General Order 45, X.B., I hereby attest that Robert B. Carey has concurred in this filing. CERTIFICATE OF SERVICE I, Jon T. King, declare that I am over the age of eighteen (18) and not a party to the entitled action. I am a partner in the law firm of HAUSFELD LLP, and my office is located at 44 Montgomery Street, Suite 3400, San Francisco, California 94104. On January 11, 2009, I filed the following: LETTER FROM JON T. KING AND ROBERT B. CAREY TO THE HON. CLAUDIA WILKEN with the Clerk of the Court using the Official Court Electronic Document Filing System which served copies on all interested parties registered for electronic filing. I also certify that I caused true and correct Chambers Copies of the foregoing document(s) to be hand-delivered to the following Judge pursuant to Civil L.R. 3-12(b) by noon of the following day: The Hon. Claudia Wilken U.S.D.C., Northern District of California Oakland Division 1301 Clay Street, Suite 400 S Oakland, CA 94612-5212 I declare under penalty of perjury that the foregoing is true and correct. /s/ Jon T. King_____________________ JON T. KING
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