O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 55

MOTION to Consolidate Cases filed by Edward C. O'Bannon, Jr.. Motion Hearing set for 10/8/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: #1 Affidavit Declaration of Jon T. King, #2 Proposed Order Proposed Order)(King, Jon) (Filed on 9/1/2009)

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O'Bannon, Jr. v. National Collegiate Athletic Association et al Doc. 55 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 Robert B. Carey (pro hac vice) Leonard W. Aragon (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 2425 East Camelback Road, Suite 650 Phoenix, Arizona 85016 Tel: (602) 840-5900 Fax: (602) 840-3012 Email: rcarey@hbsslaw.com leonard@hbsslaw.com Counsel for Plaintiffs in Keller Action Michael P. Lehmann (Cal. Bar No. 77152) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) HAUSFELD LLP 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: (415) 633-1908 Fax: (415) 358-4980 Email: mlehmann@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com Counsel for Plaintiffs in O'Bannon Action [Additional counsel listed on signature page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAMUEL MICHAEL KELLER, on behalf of himself and all others similarly situated, Plaintiff, v. ELECTRONIC ARTS, INC., NATIONAL COLLEGIATE ATHLETICS ASSOCIATION; COLLEGIATE LICENSING COMPANY, Defendants. Case No. CV 09 1967 (CW) PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S NOTICE OF JOINT MOTION AND MOTION TO CONSOLIDATE ACTIONS Date: October 8, 2009 Time: 2:00 p.m. Judge: The Hon. Claudia Wilken Courtroom: 2, 4th Floor PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) . Dockets.Justia.com 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 EDWARD C. O'BANNON, JR., on behalf of himself and all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (a/k/a the "NCAA"); and COLLEGIATE LICENSING COMPANY (a/k/a "CLC"), Defendants. Case No. CV 09-3329 (CW) Judge: Hon. Claudia Wilken TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Please take notice that on October 8th at 2:00 p.m. or as soon as the matter may be heard before the Honorable Claudia Wilken of the United States District Court for the Northern District of California, Oakland Division, Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, California 94612, Plaintiffs Samuel Michael Keller and Edward Charles O'Bannon, Jr. ("Plaintiffs") will and hereby do jointly move pursuant to Rule 42 of the Federal Rules of Civil Procedure for an order consolidating their actions. Plaintiffs seek consolidation because, as explained herein, their actions "involve a common question of law or fact." Fed. R. Civ. Proc. 42. Consolidation will therefore promote efficiency by avoiding duplication and preventing inconsistent adjudications. Both Plaintiffs are entitled to amend their complaints as a matter of right, and desire to do so in the form of a consolidated amended complaint. Defendants' pending motions to dismiss and strike in the Keller action therefore are moot and not a proper basis for a claim of prejudice. Moreover, their work on those motions is likely to be useful with respect to future dismissal attempts in the consolidated matter. This Motion is based on this notice of motion, motion, the supporting memorandum of points and authorities, and any other papers filed in this action. PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 1 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF ISSUES TO BE DECIDED. Pursuant to Civil L.R. 7-4, Plaintiffs Samuel Michael Keller and Edward C. O'Bannon, Jr. (collectively, "Plaintiffs"), plaintiffs in the two above-captioned actions (the "Keller" and "O'Bannon" actions, respectively), state that the issue to be decided is whether the Keller and O'Bannon actions should be consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure. II. INTRODUCTION. Plaintiffs respectfully request that this Court issue an Order consolidating their cases, both of which are pending in this Court. As further described below, both actions are putative nationwide class actions brought on behalf of similar groups of current and former collegiate student-athletes who compete or competed in men's Division I basketball and football pursuant to the rules of the National Collegiate Athletic Association (the "NCAA") and whose images have been licensed and/or used without consent and compensation. The actions share two common defendants (the NCAA and the Collegiate Licensing Company), a common co-conspirator in Electronic Arts, and contain overlapping factual allegations. Consequently, the litigation of the cases will undoubtedly involve common witnesses, experts, and discovery. Moreover, in the O'Bannon action, the NCAA and the CLC have already agreed to a schedule relating to motion to dismiss briefing that envisions Plaintiff filing an amended complaint. At minimum, Plaintiff O'Bannon expects to add Electronic Arts as a defendant, which will further increase the overlap between the two actions. With respect to Plaintiff Keller, he also is entitled as a matter of right to amend his complaint because Defendants have not filed answers. See Fed. R. Civ. Proc. 15(a)(1) (plaintiff "may amend its pleading once as a matter of course: PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 2 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 (A) before being served with a responsive pleading; . . ."); Fed. R. Civ. Proc. 7(a) and 7(b) (distinguishing between pleadings and motions).1 Plaintiffs desire to exercise their rights to amend by filing a consolidated amended complaint. Defendants' pending motions to dismiss and strike in the Keller action therefore are moot and not a proper basis for a claim of prejudice. Moreover, their work on those motions is likely to be useful with respect to future dismissal attempts in the consolidated matter. Significantly, this Court has already determined in its Related Case Order dated August 11, 2009 that the two actions are related. See Keller Dkt. Entry No. 59; O'Bannon Dkt. Entry No. 27). In issuing that Order, the Court implicitly found that the Keller and O'Bannon actions "concern substantially the same parties, property, transaction or event," and that "[i]t appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Civil L.R. 3-12 ("Related Cases"). As the Manual for Complex Litigation, Fourth, notes, "[a]ll related civil cases pending in the same court should initially be assigned to a single judge to determine whether consolidation, or at least coordination of pretrial proceedings, is feasible and is likely to reduce conflicts and duplication." Manual for Complex Litigation, Fourth ("MCL 4th"), § 20.11. Following the issuance of the Related Case Order, Plaintiffs' counsel met and conferred on how the two actions might proceed together in the most efficient and expeditious way possible, and concluded that the actions should be consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure.2 1 See also Advisory Committee Notes to 2009 Amendments to Fed. R. Civ. Proc. 15 (discussing amendments not effective until December 1, 2009, and noting that prior to December 1, 2009, "[s]erving a motion attacking the pleading did not terminate the right to amend, because a motion is not a `pleading' as defined in Rule 7."). Plaintiffs have conferred with counsel for Defendants, and they do not agree that the actions should be consolidated. See accompanying Declaration of Jon T. King ("King Decl., ¶ 3). PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 3 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 2 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 Accordingly, Plaintiffs respectfully request that the Court consolidate the two actions as permitted under Rule 42(a) to further effect substantial preservation of time, effort, and resources of the Court and the parties, as well as to avoid potentially inconsistent adjudications. III. STATEMENT OF FACTS. A. DESCRIPTION OF THE KELLER AND O'BANNON ACTIONS. The Keller and O'Bannon actions both are putative nationwide class actions brought on behalf of similar groups of current and former collegiate student-athletes who compete or competed in men's Division I basketball and football pursuant to the rules of the NCAA and whose images have been licensed and/or used without consent and compensation. The O'Bannon complaint sets forth two classes: the "Declaratory and Injunctive Relief Class" includes both current and former student-athletes who compete on, or competed on, NCAA men's "Division I" basketball and football teams, and the "Damages Class" includes only former student-athletes that competed on those teams. See O'Bannon Compl., ¶ 43. The Keller complaint's putative class also is confined to basketball and football, and includes both current and former student-athletes who participated in those sports. See Keller Compl., ¶58. Both actions name the NCAA as a defendant, and also name as a defendant the Collegiate Licensing Company ("CLC"), the NCAA's licensing arm. In Keller, the complaint also names the video-game manufacturer Electronic Arts, Inc. ("EA") as a defendant, and in O'Bannon, the complaint names EA as a non-defendant co-conspirator. See O'Bannon Compl., ¶ 38. Both actions assert that the defendants unlawfully utilized class members' images in basketball and football-themed video games. See O'Bannon Compl., ¶ ¶ 135-148; Keller Compl., ¶ ¶ 11-53. The O'Bannon complaint further asserts claims related to the alleged unlawful licensing and use of players' images in other formats including DVDs offered for sale and rental, photos, video ondemand services, "stock footage" sold to corporate advertisers and other purchasers for use in PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 4 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 commercials and other end-products, apparel sales, and rebroadcasts of "classic" games on television. The O'Bannon and Keller complaints both assert causes of action for unjust enrichment. Both actions also reference class members' deprivation of their right of publicity -- in the Keller case as a part of its first, second, and third causes of action under various Indiana and California statutes and common law, and in the O'Bannon action as an element of damages. See O'Bannon Compl., ¶ ¶ 15-16. Both complaints also set forth theories of conspiracy. The Keller complaint lists a state-law based "civil conspiracy" cause of action alleging that Defendants NCAA, CLC, and EA "have conspired and combined with each other, and possibly with third parties, to use class members' likenesses without permission." Keller Compl., ¶ 79. The O'Bannon complaint similarly alleges, as a part of its federal antitrust cause of action, that Defendants NCAA and CLC have conspired with EA, the NCAA's member schools and conferences, and unnamed third parties. See, e.g., O'Bannon Compl., ¶ 38-39. The O'Bannon and Keller cases also both reference Defendant NCAA's standardized forms relating to use of student-athletes' likeness, and the NCAA's rules regarding same, as being important items of evidence. See, e.g., O'Bannon Compl., at ¶¶ 61-66; Keller Compl., ¶ 14. The O'Bannon and Keller actions clearly concern substantially the same parties (the NCAA and the CLC), property (student-athletes' and former student-athletes' rights in the future commercial use of their images), and transactions (the sale and licensing of student-athletes' images and products containing same). While the O'Bannon action is a broader case in terms of relevant product lines at issue and the Keller action is broader in the number of defendants sued, both cases involve overlapping classes, overlapping factual allegations and common questions of law. As a result, both will undoubtedly involve overlapping witnesses, experts, and discovery. There will certainly be an PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 5 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 unduly burdensome duplication of labor and expense if the cases are conducted independently. Consolidating the actions will also avoid conflicting results arising out of the same set of allegations, and will promote the just and efficient conduct of the actions. More specifically, both cases will involve examining the alleged use of class members' images with respect to EA's videogames, and both cases will focus on determining the relevant roles of Defendants NCAA and CLC in that process. Clearly substantial discovery will result regarding the usage of player images in video-games. It would be highly inefficient to have litigation proceeding in multiple actions and addressing identical issues at the various stages of these matters, including in the discovery, motion to dismiss, class certification, summary judgment, and trial portions of these actions. B. PROCEDURAL STATUS OF THE ACTIONS. Both the Keller and O'Bannon actions are in their nascent stages. On May 5, 2009, Plaintiff Keller filed his complaint. On July 29, 2009, Defendants NCAA, EA and CLC filed motions to dismiss. See Keller Dkt. Entry Nos. 34, 47, and 48. Defendant EA also filed a "Special Motion to Strike Pursuant to Cal. Code Civ. Proc. § 425.16." Keller Dkt. Entry No. 35. Plaintiff Keller's opposition briefs are due on September 1, 2009, Defendants' reply briefs are due on September 18, 2009, and the hearing is set for October 1, 2009. See Keller Dkt. Entry No. 68. A Case Management Conference also is set for that date.3 See id. Because Defendants have not answered the complaint, Plaintiff Keller may file an amended complaint as a matter of right. In the O'Bannon action, Plaintiff O'Bannon filed his complaint on July 21, 2009. Pursuant to agreement with Defendants NCAA and CLC and a soon to be filed stipulation, Plaintiff O'Bannon's amended complaint would be due to be filed on September 11, 2009, with Plaintiffs understand that one or more defense counsel may be unavailable on October 8, 2009, the hearing date set for the instant Motion, and suggested to Defendants' counsel that the parties confer regarding moving the hearing date to October 1, 2009. See King Decl., ¶ 4. PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 6 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 3 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 Defendants' motions to dismiss due 45 days later. See King Decl., ¶ 5. A Case Management Conference is set for November 17, 2009. See O'Bannon Dkt. Entry No. 36. Defendants' briefing in connection with their motions to dismiss and EA's motion to strike undoubtedly will be of use to them in connection with their expected similar efforts to dismiss any consolidated amended complaint; no inefficiency or prejudice will result by consolidating the Keller and O'Bannon actions. IV. ARGUMENT. Plaintiffs request that their respective actions be consolidated pursuant to the Court's authority under Federal Rule of Civil Procedure 42(a). Rule 42(a) provides that, "[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Subsection (b) of Rule 42 further provides a court with flexibility to "order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." As the Manual for Complex Litigation, Fourth notes, "[c]ontrol over the proliferation of cases and coordination of multiple claims is crucial to effective management of complex litigation." MCL 4th, § 20. A district court has "broad discretion" to consolidate in whole or in part cases pending in the same district. See Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008) cert. denied 129 S.Ct. 597, 172 L.Ed.2d 456; Investors Research Co. v. United States District Court for the Central District of California, 877 F.2d 777, 777 (9th Cir. 1989). However, it is necessary that the actions have a common question of law or fact. See Enterprise Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994). The purpose of consolidation is not only to enhance efficiency of the trial court by avoiding unnecessary duplication of evidence and procedures, but PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 7 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 also to avoid inconsistent adjudications. See E.E.O.C. v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998). As detailed above in Section III regarding the description of the Keller and O'Bannon actions, there are substantial areas of overlap between the two cases that merit consolidation. To the extent that differences in legal theories or factual allegations exists, they will be resolved by the joint preparation and filing of a consolidated amended complaint that will streamline and centralize claims into one pleading. The parties' intention to jointly file a consolidated amended complaint will moot any currently existing variations in their legal claims and defendants. But in any case, consolidation has been found to be appropriate in this District despite variations in legal claims and defendants. See, e.g., Weisz v. Calpine Corp., No. 4:02-CV-1200, 2002 WL 32818827, at *2 -3 (N.D. Cal., Aug. 19, 2002) (Armstrong, J.) ("Weisz"). In Weisz, the Court, in consolidating multiple actions, stated the following: [A party] contends that consolidation of his complaint with the remaining actions is inappropriate in light of the different claims alleged . . . Since different pleading requirements and standards of proof apply to these claims, [the party] asserts that the better course of action is to keep these claims separate . . . [T]he differences inherent in bondholder versus shareholder claims are outweighed by the fact that the claims alleged in [one of the actions] and the remaining actions are based on the same alleged course of conduct. [citation omitted]. As such, the Court is not convinced by [the party's] contention that differences in the pleading and evidentiary burdens . . . are sufficient to avoid consolidation. ... Finally, [the party] contends that his action includes the bond underwriters as defendants, who are not joined in the other actions. As above, this fact is not a persuasive basis for preventing consolidation. [citation omitted]. . . . The factual allegations underlying these lawsuits are essentially identical with respect to the underlying alleged misconduct. PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 8 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 Despite some differences and unique issues presented in [one of the actions], the Court finds that such distinctions are far outweighed by the benefits of consolidation. The Court further finds that given the common questions of law or fact, and in light of the interests of avoiding unnecessary costs or delays, consolidation is proper. Consolidation is appropriate despite the pendency of Defendants' motions to dismiss the Keller matter. This Court, in another matter, granted a motion to consolidate despite the prior filing of motions to dismiss. See Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd., Nos. C 04-2000 CW, C 06-2929 CW, 2006 WL 2329466, at *1 (N.D.Cal., Aug. 9, 2006) (Wilken, J.) (consolidating actions on "judicial efficiency" grounds and noting that certain defendants "object to the prosecution of these cases against them, and, accordingly, have filed motions to dismiss."). Indeed, because Plaintiff Keller has the right to file an amended complaint without leave of the Court anyway, consolidation and the filing of an amended complaint cannot prejudice Defendants. Absent consolidation, it is likely that duplicative motions to dismiss will be prepared and filed. Moreover, the various class plaintiffs will likely file overlapping motions for class certification without consolidation and a coordinated briefing schedule. Consolidation will also help facilitate an efficient discovery process that will inure to the benefit of the parties and the Court. V. LOGISTICS OF CONSOLIDATION. The Manual for Complex Litigation, Fourth, recommends the following: When cases are coordinated or consolidated, the court should enter an order establishing a master file for the litigation in the clerk's office, relieving the parties from multiple filings of the same pleadings, motions, notices, orders, and discovery materials, and providing that documents need not be filed separately in an individual case file unless uniquely applicable to that particular case. PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 9 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 MCL 4th, § 20.11. Here, Plaintiffs propose that the Court establish a master file for the litigation and that the consolidated action bear the name "In re NCAA Student-Athlete Name & Likeness Licensing Litigation." Plaintiffs further propose to jointly file a consolidated amended complaint within 10 days of the issuance of any Order consolidating the actions. Plaintiffs also intend to soon file for the Court's consideration a motion for appointment of interim class counsel pursuant to Fed. R. Civ. P. 23(g)(3), so that an interim class counsel leadership structure can be in place by the time of the filing of any consolidated amended complaint that the Court may authorize. VI. CONCLUSION. For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion to consolidate the above referenced actions onto a single docket and subject to a single scheduling order, and enter the attached Proposed Order that further provides that a consolidated amended complaint shall be filed within 10 days of the date of the Order. Dated: September 1, 2009 Respectfully submitted, HAGENS BERMAN SOBOL SHAPIRO LLP /s/ Robert B. Carey__________________ Robert B. Carey (pro hac vice) Leonard W. Aragon (pro hac vice) 2425 East Camelback Road, Suite 650 Phoenix, Arizona 85016 Telephone: (602) 840-5900 Facsimile: (602) 840-3012 rcarey@hbsslaw.com leonard@hbsslaw.com Counsel for Plaintiff Samuel Michael Keller HAUSFELD LLP /s/ Jon T. King_____________________ Michael P. Lehmann (Cal. Bar No. 77152) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: (415) 633-1908 Fax: (415) 358-4980 Email: mlehmann@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com Counsel for Plaintiff Edward Charles O'Bannon, Jr. PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 10 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 Steve Berman (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, Washington 98101 Telephone: (206) 623-7292Facsimile: (206) 623-0594 steve@hbsslaw.com Shana E. Scarlett (Cal. Bar No. 217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 shanas@hbsslaw.com Additional Counsel for Plaintiff Samuel Michael Keller Michael D. Hausfeld (pro hac vice) Megan E. Jones (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: (202) 540-7200 Fax: (202) 540-7201 Email: mhausfeld@hausfeldllp.com mjones@hausfeldllp.com Stuart M. Paynter (Cal. Bar. No. 226147) THE PAYNTER LAW FIRM PLLC 1200 G Street N.W., Suite 800 Washington DC 20005 Telephone: (202) 626-4486 Facsimile: (866) 734-0622 stuart@smplegal.com William A. Isaacson (pro hac vice) Tanya Chutkan (pro hac vice) Jack Simms (pro hac vice) BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, 8th Floor Washington, DC 20015 Tel: (202) 237-2727 Fax: (202) 237-6131 Email: wisaacson@bsfllp.com tchutkan@bsfllp.com jsimms@bsfllp.com Jonathan W. Cuneo Daniel M. Cohen CUNEO GILBERT & LaDUCA LLP 507 C Street NE Washington, D.C. 20002 Tel: (202) 789-3960 Fax: (202) 789-1813 Email: jonc@cuneolaw.com danielc@cuneolaw.com John F. Cove, Jr. (Cal. Bar No. 212213) BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 Tel: (510) 874-1000 Fax: (510) 874-1480 Email: jcove@bsfllp.com PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 11 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) 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 PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 12 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) Vincent J. Esades HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Tel: (612) 338-4605 Fax: (612) 338-4692 Email: vesades@heinsmills.com Mitchell J. Rapp (Michigan Bar No. P43081) Shawn D. Stuckey (MN Bar No. 0388976) ZELLE HOFMANN VOELBEL & MASON LLP 500 Washington Avenue South, Suite 400 Minneapolis, MN 55415 Telephone: (612) 339-2020 Facsimile: (612) 336-9100 Email: mrapp@zelle.com sstuckey@zelle.com Steven J. Greenfogel MEREDITH COHEN GREENFOGEL & SKIRNICK, P.C. 1521 Locust Street, 8th Floor Philadelphia, Pennsylvania 19102 Tel: (215) 564-5182 Fax: (215) 569-0958 Email: sgreenfogel@mcgslaw.com Daniel S. Mason (Cal. Bar No. 54065) ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Tel: (415) 693-0700 Fax: (415) 693-0770 Email: dmason@zelle.com Brian M. Sund Joshua G. Hauble MORRISON FENSKE & SUND, P.A. 5125 County Road 101, Suite 202 Minnetonka, MN 55345 Tel: (952) 975-0050 Fax: (952) 975-0058 Email: bsund@morrisonfenske.com jhauble@morrisonfenske.com Bruce L. Simon (Cal. Bar. No. 96241) Jessica L. Grant (Cal. Bar. No. 178138) PEARSON, SIMON, WARSHAW & PENNY, LLP 44 Montgomery Street, Suite 1430 San Francisco, CA 94104 Tel: (415) 433-9000 Fax: (415) 433-9008 Email: bsimon@pswplaw.com jgrant@pswplaw.com Jay L. Himes Morissa Falk LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: jhimes@labaton.com mfalk@labaton.com Eugene A. Spector SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, Pennsylvania 19103 Tel: (215) 496-0300 Fax: (215) 496-6611 Email: espector@srkw-law.com 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 PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 13 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) Gordon Ball BALL & SCOTT, A PROFESSIONAL ASSOCIATION 550 Main Avenue, Suite 750 Knoxville, TN 37902 Tel: (865) 525-7028 Fax: (865) 525-4679 Email: GBall@ballandscott.com Stanley D. Bernstein Ronald J. Aranoff Dana Statsky Smith BERSTEIN LIEBHARD LLP 10 East 40th Street, 22nd Floor New York, New York 10016 Tel: (212) 779-1414 Fax: (212) 779-3218 Email: bernstein@bernlieb.com aranoff@bernlieb.com Carl A. Taylor Lopez LOPEZ & FANTEL 1510 114th Avenue Seattle, WA 98122-4024 Tel: (206) 322-5200 Email: clopez@lopezfantel.com Allan Steyer (Cal. Bar. No. 100318) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Tel: (415) 421-3400 Fax: (415) 421-2234 Email: asteyer@steyerlaw.com Additional Attorneys for Plaintiff Edward Charles O'Bannon, Jr. I, Jon T. King, am the ECF User whose ID and password are being used to file this PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S NOTICE OF JOINT MOTION AND MOTION TO CONSOLIDATE ACTIONS. In compliance with General Order 45, X.B., I hereby attest that Robert B. Carey has concurred in this filing. 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 PLAINTIFFS' JOINT MOTION TO CONSOLIDATE ACTIONS 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 September 1, 2009, I filed the following: PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S NOTICE OF JOINT MOTION AND MOTION TO CONSOLIDATE ACTIONS; DECLARATION OF JON T. KING IN SUPPORT OF PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S NOTICE OF JOINT MOTION AND MOTION TO CONSOLIDATE ACTIONS; 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_____________________ 14 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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