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

Filing 76

MOTION to Appoint Lead Counsel filed by Edward C. O'Bannon, Jr.. Motion Hearing set for 10/22/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: #1 Affidavit, #2 Affidavit, #3 Proposed Order)(King, Jon) (Filed on 9/16/2009) Modified on 9/17/2009 (cp, COURT STAFF).

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

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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: [phone] Fax: [phone] Email: [e-mail] [e-mail] 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: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] 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 JOINT NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF INTERIM CO-LEAD COUNSEL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(g)(3) Date: October 22, 2009 Time: 2:00 p.m. Judge: The Hon. Claudia Wilken Courtroom: 2, 4th Floor

PLAINTIFFS' JOINT MOTION FOR APPOINTMENT OF INTERIM CO-LEAD COUNSEL

Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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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 22, 2009, 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 23(g)(3) of the Federal Rules of Civil Procedure for an order appointing the law firms of Hagens Berman Sobol Shapiro LLP and Hausfeld LLP (collectively, "Proposed Interim Co-Lead Counsel") as interim co-lead counsel for the putative plaintiff classes in these matters. The appointment of Interim Co-Lead Counsel is appropriate at this time to "fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B). Proposed Interim Co-Lead Counsel have extensive experience in complex commercial class action litigation including antitrust class actions. In addition, Plaintiff Keller's and Plaintiff O'Bannon's actions were the first actions filed concerning this subject matter, and proposed Interim Co-Lead Counsel have already expended substantial resources researching, investigating and prosecuting these actions. 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 FOR APPOINTMENT OF INTERIM CO-LEAD COUNSEL

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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 V. B. C. I. II. III. IV.

TABLE OF CONTENTS STATEMENT OF ISSUES TO BE DECIDED. .................................................................. 5 INTRODUCTION. ............................................................................................................... 5 BACKGROUND. ................................................................................................................. 6 ARGUMENT. ....................................................................................................................... 7 A. Proposed Interim Lead Counsel Have Expended Substantial Resources Investigating the Underlying Claims And Are Familiar With The Underlying Law. ...................................................................................................... 9 Proposed Interim Lead Co-Counsel Are Experienced in Efficiently Litigating Complex Commercial Litigation. ............................................................................ 9 Proposed Interim Co-Lead Counsel Can Devote Substantial Resources to the Prosecution of this Action. ..................................................................................... 19

CONCLUSION. .................................................................................................................. 20

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TABLE OF AUTHORITIES

Four In One Co., Inc. v. SK Foods, L.P. No. 2:08-cv-03017-MCE-EFB, 2009 WL 747160, at *1 (E.D.Cal., March 20, 2009) .......................................................................................................... 5 Hill v. The Tribune Co. Nos. 05 C 2602, 2005 WL 3299144, at *3-4 (N.D. Ill. Oct. 13, 2005) ....................................... 5 In re Air Cargo Shipping Services Antitrust Litig. 06-MD-1775, MDL No. 1775 (E.D.N.Y.) ................................................................................. 11 In re Air Cargo Shipping Services Antitrust Litigation 240 F.R.D. 56, 57 (E.D.N.Y.2006) .............................................................................................. 5 In re Bextra Marketing Sales Practices and Product Liability Litig. MDL. 1699 (N.D. Cal.) ................................................................................................................ 7 In re California Title Ins. Antitrust Litig. No. 08-01341 JSW, 2008 WL 4820752, at *1 (N.D. Cal., Nov. 3, 2008) ................................... 5 In re Dynamic Random Access Memory (DRAM) Antitrust Litig. MDL No. 1486 (N.D. Cal.) .......................................................................................................... 8 In re International Air Transportation Surcharge Antitrust Litig. Case No. M:06-cv-01793-CRB, MDL No. 1793 ....................................................................... 11 In re Pharmaceutical Industry Average Wholesale Price Litig. MDL 1456 (D. Mass.) .................................................................................................................. 7 In re Transpacific Passenger Air Transport Antitrust Litig. 3:07-cv-05634 (N.D. Cal.) ......................................................................................................... 12 In re Visa Check/MasterMoney Antitrust Litig. 280 F.3d 124, 129-30 (2d Cir. 2001), cert. denied, 536 U.S. 917 (2002) .................................... 8 In re Visa Check/MasterMoney Antitrust Litig. No. CV-96-5238 (E.D.N.Y.) ........................................................................................................ 7 In re Vitamins Antitrust Litig. MDL No. 1285 (D.D.C.) ............................................................................................................ 12 In Re: Rubber Chemicals Antitrust Litig. Master Docket No. C-03-1496 (N.D. Cal.) ................................................................................ 11 New England Carpenters Benefits Fund, et al. v. First DataBank Inc. and McKesson Corp. Case No. 05-11148 (D. Mass.) ..................................................................................................... 7 Parkinson v. Hyundai North America Nos. CV06-345( AHS), 2006 WL 2289801, at *2 (C.D. Cal. Aug. 7, 2006) .............................. 4

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Rules Federal Rule of Civil Procedure 23......................................................................................... passim Treatises Manual for Complex Litigation, Fourth ........................................................................................... 4

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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 law firms of Hagens Berman Sobol Shapiro LLP ("Hagens Berman") and Hausfeld LLP (collectively, "Proposed Interim Co-Lead Counsel") should be appointed as interim co-lead counsel for the putative classes pursuant to Rule 23(g)(3) of the Federal Rules of Civil Procedure. II. INTRODUCTION.

Plaintiffs have jointly moved to consolidate their actions, and proposed to file a Consolidated Amended Complaint within 10 days of the issuance any order consolidating the actions. See Keller Dkt. Entry No. 69 ("Motion to Consolidate"), at 10. Plaintiffs further indicated their intention to file the present motion for appointment of interim class counsel pursuant to Fed. R. Civ. P. 23(g)(3), so that an interim class counsel leadership structure could be in place in connection with filing of any consolidated amended complaint that the Court may authorize. See id. Recent developments have further reinforced the desirability of appointing an interim leadership structure, as one new substantially similar complaint has already been filed in this District, and at least one more is expected to be filed within the next week. See King Decl., ¶ 3. Federal Rule of Civil Procedure 23(g)(3) permits the Court to "designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action." In making this determination, the Court should consider (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. See Fed. R. Civ. P. 23(g)(1)(A). In addition, the Court "may consider any

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other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B). Here, Proposed Interim Co-Lead Counsel's qualifications more than meet the requirements of Rule 23(g). Proposed Interim Co-Lead Counsel have devoted extensive time to investigating the claims in this action. They are experienced in complex commercial litigation, well versed in the applicable law, and have ample resources to devote to the prosecution of this action. III. BACKGROUND.

Plaintiff Samuel Michael Keller filed his action on May 5, 2009, on behalf of a class of current and former NCAA football and basketball players against Electronic Arts, the National Collegiate Athletic Association ("NCAA") and its licensing arm, the Collegiate Licensing Company ("CLC"). Keller, Compl. ¶¶ 4-6. Plaintiff alleges that Defendants conspired to utilize the likenesses and names of individual student-athletes in basketball and football videogames produced by Electronic Arts. See id., ¶ 1. Plaintiff's complaint states claims for violations of putative class members statutory and common law publicity rights under California and Indiana law as well as class member's contractual rights under form contracts signed with the NCAA. Compl. ¶¶ 66-91. Plaintiff Edward C. O'Bannon, Jr. filed his action on July 21, 2009, on behalf of classes of current and former NCAA football and basketball players against the NCAA and CLC, and named Electronic Arts as a non-defendant co-conspirator. In addition to focusing on videogames, the O'Bannon complaint further asserts antitrust and other claims related to the alleged unlawful licensing and use of players' images in other formats including DVDs offered for sale and rental, photos, video on- demand services, "stock footage" sold to corporate advertisers and other purchasers for use in commercials and other end-products, apparel sales, and rebroadcasts of "classic" games on television. As detailed in the Motion to Consolidate, Plaintiffs' counsel have certain similar causes of action and legal theories, and some that are distinctive in each complaint. As is readily apparent
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from the detailed pleadings, each firm has done extensive and unique research that will redound to the benefit of class members. Both firms are in the process of harmonizing their respective pleadings so that they may file a single consolidated amended complaint with this Court. This is entirely common. As one recent example, in In re Insurance Brokerage Antitrust Litigation, No. 04-5184(GEB) (D.N.J.), multiple groups of plaintiffs asserted claims under the federal antitrust laws and the federal racketeering laws, respectively. The court appointed one interim lead counsel from each group, and they then jointly presented a consolidated amended complaint to the Court. See King Decl., ¶ 4. IV. ARGUMENT.

Rule 23(g)(3) of the Federal Rules of Civil Procedure provides that a court "may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action." When appointing lead counsel, the court must consider (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel's knowledge of the applicable law; and (4) the resources counsel will commit to representing the class." See Fed. R. Civ. P. 23(g)(1)(A). Proposed Interim Co-Lead Counsel more than satisfy these requirements. The Advisory Committee notes to former Rule 23(g)(2)(A) explain that the rule "authorizes [a] court to designate interim counsel during the pre-certification period if necessary to protect the interests of the putative class." The Manual for Complex Litigation, Fourth ("MCL 4th") elaborates as follows: If . . . there are a number of overlapping, duplicative, or competing suits pending in other courts, and some or all of those suits may be consolidated, a number of lawyers may compete for class counsel appointment. In such cases, designation of interim counsel clarifies responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification and negotiating settlement. MCL 4th § 21.11 (emphasis added).
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Courts considering motions for appointment interim class counsel have generally applied the factors set forth in Rule 23(g)(1)(A). See, e.g., Parkinson v. Hyundai North America, Nos. CV06-345( AHS), 2006 WL 2289801, at *2 (C.D. Cal. Aug. 7, 2006); Hill v. The Tribune Co., Nos. 05 C 2602, 2005 WL 3299144, at *3-4 (N.D. Ill. Oct. 13, 2005).1 One California district court recently observed the following: Courts have held that the same standards applicable to choosing class counsel at the time of class certification apply in choosing interim class counsel. See In re Air Cargo Shipping Services Antitrust Litigation, 240 F.R.D. 56, 57 (E.D.N.Y.2006) ("Although neither the federal rules nor the advisory committee notes expressly so state, it appears to be generally accepted that the considerations set out in [Fed.R.Civ.P. 23(g)(1)(A) and (B) ], which governs appointment of class counsel once a class is certified, apply equally to the designation of class counsel before certification."). Four In One Co., Inc. v. SK Foods, L.P., No. 2:08-cv-03017-MCE-EFB, 2009 WL 747160, at *1 (E.D.Cal., March 20, 2009). See also In re California Title Ins. Antitrust Litig., No. 08-01341 JSW, 2008 WL 4820752, at *1 (N.D. Cal., Nov. 3, 2008) (White, J.) ("[w]hen appointing interim class counsel, a court must find that the applicant is adequate under [Rule 23(g)(1)(A) and (B)]."). Application of these Rule 23(g) factors strongly supports appointing the Hagens Berman and Hausfeld LLP as interim co-lead counsel. Here, approval of the proposed interim leadership structure will allow for, among other things, (1) the coordinated preparation and filing of a consolidated amended complaint; (2) the efficient prosecution of this action through a decision on class certification and appointment of permanent class co-counsel; and (3) the facilitation of any potential settlement discussions that may occur in the future. See Advisory Committee Notes to former Fed. R. Civ. P. 23(g)(2)(A). Other benefits will also accrue, including providing third parties with assurances that they are dealing with counsel with authority to negotiate document preservation and production issues. Approving the proposed interim leadership structure and granting these firms interim co-lead

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These cases refer to the factors contained in former rule Fed. R. Civ. P. 23(g)(1)(C), which was renumbered to Fed. R. Civ. P. 23(g)(1)(A) by the December 1, 2007 Amendments to the Federal Rules of Civil Procedure. PLAINTIFFS' JOINT MOTION FOR 8 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW) APPOINTMENT OF INTERIM CO-LEAD COUNSEL

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counsel status will provide all concerned with the requisite indicator that these firms are empowered to act on behalf of the proposed class. A. Proposed Interim Lead Counsel Have Expended Substantial Resources Investigating the Underlying Claims And Are Familiar With The Underlying Law.

Proposed Interim Co-Lead Counsel expended substantial resources investigating this case. As the King and Carey Declarations explain, Proposed Interim Co-Lead Counsel have conducted numerous interviews with former players, player agents, and industry professionals. In addition, Proposed Interim Co-Lead Counsel reviewed voluminous materials from the NCAA, including NCAA rules and other public reports, as well as materials from the Knight Commission on Intercollegiate Athletics, scholarly conferences on intercollegiate athletics and the CLC, and researched and read numerous law review articles. Proposed Interim Co-Lead Counsel also conducted and continues to conduct extensive statistical analysis of the videogames at issue and extensive technical analysis of the videogame software at issue including the mechanism for uploading player rosters and the evolution of that mechanism over time. Hausfeld additionally has done substantial research on the other revenue streams at issue, as reflected in its complaint, and has retained numerous athletics industry consultants and antitrust economists, as well as conferred with various sports law professors. Finally, Proposed Interim Co-Lead Counsel have expended substantial attorney time developing appropriate legal theories and are consequently extremely well versed in the applicable law. B. Proposed Interim Lead Co-Counsel Are Experienced in Efficiently Litigating Complex Commercial Litigation.

Both on a national scale and in California, Proposed Interim Co-Lead Counsel have the experience and knowledge necessary to provide the putative classes the best representation possible. As discussed in more detail below, Proposed Interim Co-Lead Counsel have extensive experience with class actions and complex litigation generally, and have experience working efficiently together as co-counsel in other actions. See generally Carey Declaration, Exh. A; King
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Decl., Exh. A (Firm Resumes). Members of the two firms, including those attorneys described below, have worked collaboratively on many previous cases, and will continue that working relationship in the present matter. (i) Hagens Berman. Hagens Berman is one of the nation's preeminent and most experienced plaintiff-side class action firms and possesses the background, experience, and requisite legal knowledge to manage and prosecute the litigation and the claims asserted therein. Hagens Berman has been repeatedly recognized as one of the nation's leading plaintiffs' law firms by the National Law Journal. Since its founding, Hagens Berman has represented plaintiffs in class actions and other complex, large-scale litigation across the country. To give just a few representative examples:

New England Carpenters Benefits Fund, et al. v. First DataBank Inc. and McKesson Corp., Case No. 05-11148 (D. Mass.). Hagens Berman was lead counsel representing consumers and third party payers against healthcare services giant McKesson for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) for conspiring to fraudulently inflate the Average Wholesale Price of most common prescription medicines. Hagens Berman settled the case on behalf for $350 million on November 21, 2008. In re Bextra Marketing Sales Practices and Product Liability Litig., MDL. 1699 (N.D. Cal.). Hagens Berman filed suit against Pfizer claiming that the pharmaceutical giant launched a misleading marketing campaigns for its drugs Bextra and Celebrex. On October 17, 2008, the firm, serving as lead counsel, settled the case for $89 million. In re Pharmaceutical Industry Average Wholesale Price Litig., MDL 1456 (D. Mass.). Since 2001 Hagens Berman has led this litigation against 20 pharmaceutical companies. Serving as lead counsel, Hagens Berman has participated in all phases of the case, including a successful eight week trial. To date, approximately $210 million has been recovered and the remainder of the case is still pending. The case is considered at the top of the scale in terms of complexity of discovery and motion practice. In re Visa Check/MasterMoney Antitrust Litig, No. CV-96-5238 (E.D.N.Y.) Hagens Berman was appointed co-lead counsel by the Court in this case, in which a number of large and small merchants and three trade associations sued Visa and MasterCard, alleging that defendants have created a tying arrangement in violation of § 1 of the Sherman Antitrust Act by means of their `honor all cards' policy, which requires stores that accept defendants' credit cards to
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accept their debit cards as well. Plaintiffs also alleged that defendants attempted and conspired to monopolize the debit card market in violation of § 2 of the Sherman Act. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 129-30 (2d Cir. 2001), cert. denied, 536 U.S. 917 (2002). Following affirmation of class certification by the Second Circuit, the parties ultimately settled the case on the eve of trial in a settlement valued at $3 billion. Id. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., MDL No. 1486 (N.D. Cal.). Hagens Berman recently served as colead counsel in this matter, recovering settlements in excess of $325 million for the direct purchaser class and winning praise from the Honorable Judge Phyllis Hamilton for its skill, efficiency, and cooperation with other parties and the Court. In addition, Hagens Berman also played a major role in litigation by State Attorneys General against the tobacco industry, representing 13 states and resulting in the largest state settlement in history. Only two States took their cases against that industry to trial: Washington and Minnesota. As a result, only two private firms tried cases on behalf of the States against the industry. Hagens Berman is one of those firms. Significantly, Hagens Berman has specific experience litigating against the majority of the defendants in this action. In particular, Hagens Berman is sole counsel in George v. NCAA, No. 08-03401 (C.D. Cal), a putative class action against the NCAA that alleges breaches of state lottery laws in connection with the NCAA's men's basketball tournament. In addition, Hagens Berman is co-counsel for the plaintiffs in Pecover v. Electronic Arts, No. 08-cv-02820 (N.D. Cal), an antitrust putative class action against Electronic Arts alleging monopolization and unlawful horizontal agreements in the market for football videogames. As a result of its investigations into those cases, Hagens Berman has generalized useful background knowledge regarding the NCAA and the sports videogame industry. The attorneys Hagens Berman will staff this matter include (but are not limited to) the following experienced class action attorneys: Steve Berman is Hagens Berman's managing partner and is regarded as one of the country's top civil litigators. Recognized as one of the "Top 100 Influential Lawyers in America"
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by the National Law Journal, Mr. Berman served as a special assistant attorney general for 13 states in the tobacco litigation which resulted in the largest settlement in history. He is an experienced trial lawyer in large scale cases. He was in the eighth week of trial of the Washington tobacco trial when tobacco settled on a global basis. He has experience in multidistrict litigation trials. He was part of the trial team in the WPPS Litigation (a four-month trial) and is the lead trial lawyer for several classes in claims against twenty-two pharmaceutical companies in In re Average Wholesale Price Litigation, MDL 1456 (D. Mass). In recognition of his prominence, Mr. Berman was also retained by Microsoft to be part of the core national team representing the company in antitrust class actions resulting from Judge Jackson's Findings of Fact in the U.S. Department of Justice's antitrust case against the company. Robert Carey handles consumer-related class-action lawsuits involving various claims such as mini-Tucker Act claims, statutory rights, insurance issues, and property rights. He was recently selected as lead counsel in a highly contested lead counsel fight in the matter In re LifeLock, Inc. Marketing and Sales Practices Litigation, a consolidated MDL proceeding pending in United States District Court for the District of Arizona. He previously served as co-lead counsel for the Hyundai Horsepower Litigation which settled for approximately $100 million, and is currently working on other putative class actions against Hyundai for manufacturing and warranty problems. Mr. Carey has argued several high-profile cases in federal and state courts, including the supreme courts of three different states, served as trial counsel on multi-billion dollar claims for damages stemming from county losses for tobacco-related illnesses, and has led dozens of consumer and insurance class actions in various states. He also served as judge pro tempore in Maricopa County Superior Court and as special counsel for Hagens Berman Sobol Shapiro suits to recover Medicaid and statutory damages in the landmark public health litigation brought by states. He was recently asked to serve as the chairman for the State Bar of Arizona's subcommittee on Class and Derivative Actions. From 1990 to 1996, as Arizona's Chief Deputy Attorney General, Mr. Carey oversaw all major legal claims for the Arizona Attorney General's
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Office. This experience included a $4 billion divestiture action, a landmark $165 million settlement, litigation involving patent rights, and dozens of consumer and tort cases. Leonard Aragon is a senior associate in Hagens Berman Sobol Shapiro's Phoenix office. Mr. Aragon's practice focuses on nationwide class actions on behalf of plaintiffs. While his diverse practice has included numerous appellate and election law matters, he currently focuses on consumer protection claims, especially those related to the pharmaceutical, insurance and sports industries. In that capacity, Mr. Aragon is currently co-lead counsel in cases against several prominent corporations, including the National Collegiate Athletic Association, Electronic Arts, LifeLock, Inc. and Wells Fargo. In addition, Mr. Aragon is lead counsel in a putative class action against the state of Louisiana for failing to provide promised medical care to poor and uninsured residents following Hurricane Katrina. In the past, Mr. Aragon has successfully obtained several multi-million dollar judgments and settlements on behalf of thousands of consumers. Recently, Mr. Aragon obtained a multi-million dollar settlement against one of the country's largest pharmaceutical benefits managers for violations related to the sale of its services. Prior to college, Mr. Aragon was a scout for the 2/68 Armored Tank Battalion. Mr. Aragon graduated summa cum laude from Arizona State University in 1998 with degrees in History and Political Science. He received his J.D. from Stanford Law School in 2001. Shana Scarlett is an attorney with Hagens Berman Sobol Shapiro's San Francisco office and has over six years experience in prosecuting class actions, including securities fraud, consumer protection and privacy rights violations. Ms. Scarlett graduated from Stanford Law School in 2001, and was the articles editor on the Stanford Law Review. Ms. Scarlett has participated in numerous consumer class actions, including representing a nationwide class of uninsured hospital patients in Tenet Healthcare Cases II (Los Angeles Superior Court); representing consumers against the major telecommunications carriers for their participation in the Terrorist Surveillance Program (In re National Security Agency Telecommunications Record Litigation); representing California home owners against a large subprime lender (Valdes v.
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Ameriquest Mortgage Co., Alameda Superior Court). Ms. Scarlett was also a member of the litigation team in In re Sony BMG Audio Compact Disc Litigation, where she helped plaintiffs to secure a multi-million dollar settlement for consumers and an agreement from Sony BMG to stop using harmful rootkit software that created a number of serious security, privacy and consumer protection issues on music CDs. (ii) Hausfeld LLP. Hausfeld LLP is widely acknowledged to be one of the nation's most notable plaintiffs' class action firms, and its attorneys possess wide-ranging expertise that they will bring to bear in this matter. Hausfeld attorneys have been repeatedly recognized as leaders in the class action bar by publications such as The New York Times and The Wall Street Journal. The New York Times referred referred to Michael Hausfeld, who has personally worked on this case from its inception, as one of the nation's "most prominent antitrust lawyers." Hausfeld LLP is currently serving as co-lead counsel in 21 major national class action cases, including numerous antitrust class actions. Members of the firm have achieved notable recent successes, including in this District, in terms of settlements and leadership appointments, as follows: In re International Air Transportation Surcharge Antitrust Litig., ("Air Passengers"). Case No. M:06-cv-01793-CRB, MDL No. 1793: Hausfeld LLP was appointed by the Hon. Charles R. Breyer as Interim Co-Lead Counsel on behalf of thousands of air travellers around the world against British Airways and Virgin Atlantic Airways for fixing prices of air passenger transportation to and from the UK to all long-haul destinations in the world. This matter settled in 2008 for approximately $190 million. In Re: Rubber Chemicals Antitrust Litig., Master Docket No. C-031496 (N.D. Cal.). In 2006, in this matter before the Hon. Martin J. Jenkins, Hausfeld LLP lawyers, serving as Co-Lead Counsel, settled the direct purchaser class's global price-fixing claims with defendants Flexsys N.V., Flexsys America L.P., Akzo Nobel Chemicals International B.V., Akzo Nobel Chemicals, Inc., Crompton (now Chemtura) and Bayer for more than $300 million. In re Air Cargo Shipping Services Antitrust Litig., 06-MD-1775, MDL No. 1775 (E.D.N.Y.). Hausfeld LLP is serving as Interim Co-Lead Class Counsel on behalf of air freight customers against a group of international flagship airlines for fixing prices on air freight shipping. This case has already resulted in a landmark $85
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million settlement with Lufthansa. The settlement will result in thousands of European businesses recovering damages for infringements of both US antitrust and EU competition law. Michael Hausfeld was the architect and lead settlement negotiator for the claimants. In re Transpacific Passenger Air Transport Antitrust Litig., 3:07cv-05634 (N.D. Cal.). In 2009, Hausfeld was appointed by the Hon. Charles R. Breyer as Interim Co-Lead Counsel for a putative class of direct purchaser plaintiffs in this antitrust class action alleging a conspiracy by airlines to fix the prices of passenger fares and/or fuel surcharges for trans-Pacific air passenger transportation services to and from the United States in violation of the federal Sherman Act. This case is in its inception. In re Vitamins Antitrust Litig., MDL No. 1285 (D.D.C.). Hausfeld LLP lawyers served as co-lead counsel for two certified classes of businesses that directly purchased bulk vitamins and were overcharged as a result of a ten year global price-fixing and market allocation cartel. Chief Judge Hogan approved eight major settlements between certain vitamin defendants and the Class Plaintiffs, including a landmark partial settlement of $1.1 billion. In a later trial before Chief Judge Hogan concerning four of the Class Plaintiffs' remaining unsettled Vitamin B4 (choline chloride) claims, a federal jury in Washington unanimously found Japan's second largest trading company, Mitsui & Co., Ltd., its whollyowned U.S. subsidiary Mitsui & Co. (U.S.A.), Inc., DuCoa, LP, a choline chloride manufacturer based in Highland, Illinois, and DuCoa's general partner, DCV, Inc. liable for participating in the cartel and ordered them to pay $49,539,234, which was trebled to $148,617,702 under the federal antitrust laws. The case was subsequently settled against the Mitsui defendants. Hausfeld's lawyers have garnered significant praise from District Court judges including in California. In Air Passenger, for example, the firm was praised by the District Judge Charles R. Breyer of the Northern District of California for its efforts in achieving "really, an outstanding settlement in which a group of lawyers from two firms coordinated the work . . . and brought an enormous expertise and then experience in dealing with the case." The Court also stated that the firm's lawyers are "more than competent. They are outstanding." See King Decl, Exh. C. Similarly, in Four In One Company, Inc. v. SK Foods, 08-cv-03017, 2009 WL 747160 (E.D. Cal., March 20, 2009), District Judge Morrison C. England Jr. of the Eastern District of California praised the firm for having "the breadth of experience, resources and talent necessary to navigate a case of this import." In that case, "[a]lthough there [was] no question that the other firms

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proposed as co-lead counsel are also well qualified" the Court believed that only Hausfeld LLP and one other firm "st[ood] out from the rest." Id. at *3. Additionally details on the firm, including its work on human rights issues and in other significant litigation, are supplied in its Firm Resume (see King Decl., Exh. B) and on its website located at <http://www.hausfeldllp.com>.2 The Hausfeld LLP attorneys that have worked in this case from its inception, and that will continue to staff this matter include (but are not limited to) the following experienced class action attorneys: Michael D. Hausfeld's career has included some of the largest and most successful class actions in the fields of human rights, discrimination and antitrust law. He long has had an abiding interest in social reform cases, and was among the first lawyers in the U.S. to assert that sexual harassment was a form of discrimination prohibited by Title VII; he successfully tried the first case establishing that principle. He represented Native Alaskans whose lives were affected by the1989 Exxon Valdez oil spill; later, he negotiated a then-historic $176 million settlement from Texaco, Inc. in a racial-bias discrimination case. Chief Judge Edward Korman (E.D.N.Y.), has noted that Mr. Hausfeld is one of the two "leading class action lawyers in the United States." He has been profiled in, and recognized by,

With respect to pro bono work, as further described on the firm's website and in its Firm Resume, members of the Hausfeld firm pioneered the effort on behalf of Holocaust victims to recover a portion of their family's assets that were wrongfully taken from them by certain Swiss Banks and their German collaborators during World War II. In total, $1.25 billion in assets was recovered for these victims. Hausfeld lawyers also represented the largest group of survivors and their families who had been forced into slave labor for German companies during World War II. Our efforts resulted in an agreement by these companies and the German Government to create a fund of $5.2 billion from which individual payments were made to victims wherever in the world they resided. Hausfeld lawyers additionally litigated a case against the government of Japan on behalf 200,000 women that had been forced into prostitution by the Japanese military during World War II. These so-called "comfort women" were systematically held against their will and raped by Japanese military personnel during Japan's conquest of Southeast Asia. Additionally, Hausfeld lawyers represented survivors of the 1921 Tulsa Race Riot.
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many articles and surveys. Most recently, a Forbes magazine article reported on Mr. Hausfeld's work to establish an international alliance for the protection of consumers and investors worldwide. He was named one of thirty master negotiators in Done Deal: Insights from Interviews with the World's Best Negotiatiors, by Michael Benoliel, Ed.D. The Wall Street Journal profiled him and his practice, and he has been recognized by The National Law Journal as one of the "Top 100 Influential Lawyers in America." The New York Times referred to Mr. Hausfeld as one of the nation's "most prominent antitrust lawyers," and Washingtonian Magazine has listed Mr. Hausfeld in several surveys as one of Washington's 75 best lawyers, saying he "consistently brings in the biggest judgments in the history of law" and that he is "a Washington lawyer determined to change the world ­ and succeeding." Michael P. Lehmann, the head of Hausfeld LLP's San Francisco office, has 32 years of experience as a business litigator, with a practice that has ranged from class action litigation to business litigation on behalf of individual clients to extensive regulatory work before federal, state and international bodies to domestic and international arbitration. Prior to joining Hausfeld LLP, Mr. Lehmann had worked since graduating from law school at what became Furth Lehmann LLP, where he eventually served as Managing Partner. In recent years he has served as co-lead counsel for direct or indirect purchaser classes in numerous antitrust cases, including in this District, in numerous state court actions in California, and various national class actions around the country. Mr. Lehmann played a major role in a number of the most important recent multidistrict antitrust class actions, including In re International Air Transport Surcharge Antitrust Litig., MDL No. 1793 (N.D. Cal.) ("Air Passenger"); In re Transpacific Passenger Air Transportation Antitrust Litig., MDL No. 1913 (N.D. Cal.); In re Municipal Derivatives Antitrust Litig., MDL No. 1950 (S.D.N.Y.); In re Publication Paper Antitrust Litig., MDL No. 1631 (D. Conn.); In re High Pressure Laminates Antitrust Litig., MDL No. 1368 (S.D.N.Y.), and In re Graphics Processing Units Antitrust Litig., MDL No. 1826 (N.D. Cal.) Jon T. King, a partner in Hausfeld LLP's San Francisco office, represents plaintiffs in competition matters, including antitrust cases, and in other complex litigation. Mr. King currently
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represents the Golden Gate Bridge, Highway & Transportation District, the governmental entity that operates the Golden Gate Bridge and various transit systems, as one of the plaintiffs in In re Insurance Brokerage Antitrust Litigation, MDL No. 1663 (D.N.J.), a case that has resulted in approximately $220 million in settlements to date. Prior to joining the firm, Mr. King practiced antitrust law for eight years with Messrs. Lehmann and Lebsock at Furth Lehmann and for one year at Cohen Milstein Hausfeld & Toll, P.L.L.C., out of which the Hausfeld firm was born. At those firms, Mr. King worked on dozens of direct and indirect purchaser actions that resulted in hundreds of millions of dollars in settlements. He began his legal career in Los Angeles at Skadden, Arps, Slate, Meagher & Flom LLP, where he worked on matters for the National Football League and various entertainment industry companies. Christopher L. Lebsock, a partner in Hausfeld LLP's San Francisco office, has worked on numerous complex antitrust and other matters including in this District. Mr. Lebsock was a principal member of the plaintiffs' trial team in Savaglio v. Wal-Mart, a class action in Alameda County Superior Court before the Hon. Ronald M. Sabraw. In that case, nearly 119,000 WalMart hourly employees who sued their employer for wrongfully denying them meal periods and rest breaks. After more than three months of trial, in December of 2005, the jury returned a verdict for the plaintiff class of more than $172 million, including $115 million in punitive damages. Mr. Lebsock also has significant appellate experience. Mr. Lebsock was also the primary attorney at Furth Lehmann responsible for litigating In Re Automobile Antitrust Cases I & II, (S.F. Superior Court), a California class action in which the plaintiffs alleged that major automobile manufacturers illegally conspired to prevent the export of Canadian vehicles to the United States. Mr. Lebsock authored and argued an appeal in that case before California's First District Court of Appeal. Megan E. Jones, a partner in Hausfeld LLP's Washington, D.C. office, has been involved in, among other class actions: In re Polyester Staple Antitrust Litigation (W.D.N.C), which recovered over $30 million on behalf of the class; and ERC v. Archstone (D.Md.), which was recognized by the Washington Lawyers' Committee for Civil Rights. Ms. Jones was also
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involved in the $300 million global settlement with Bayer (resolving EPDM, Rubber Chemicals and NBR liability). In addition to her antitrust expertise, Ms. Jones has developed an expertise in electronic discovery, and is the co-author of The Sedona Conference Glossary: E-Discovery and Digital Management (2nd Ed). (Dec. 2007) and Navigating the Vendor Proposal Process: Best Practices for the Selection of Electronic Discovery Vendors. Ms. Jones also is the founder of the Women Antitrust Plaintiffs' Attorney networking group. Finally, Proposed Interim Lead Counsel have already established and intend to maintain professional working relationships with all counsel for Defendants in this action. In light of the above, there can be no doubt that Proposed Interim Co-Lead Counsel have the requisite skills and experience to efficiently litigate this action. C. Proposed Interim Co-Lead Counsel Can Devote Substantial Resources to the Prosecution of this Action.

Proposed Interim Co-Lead Counsel are familiar with the substantial resources necessary to litigate a case of this magnitude. Hagens Berman has seven offices nationwide including two offices in California and numerous experienced staff. Hausfeld LLP has four offices in the United States, including one in San Francisco, and a substantial case team functioning on this matter. Proposed Interim Co-Lead Counsel have achieved excellent results in the past and are committed providing the resources required to prosecute this litigation through all phases, including rigorous motion practice, discovery, class certification, summary judgment and trial. The two firms have respectively prosecuted and financed some of the largest civil litigation in the United States, including the tobacco litigation, the average wholesale price litigation against most major companies in the pharmaceutical industry, and the Vitamins antitrust litigation. Proposed Interim Co-Lead Counsel have the experience and resources to deal with large volumes of documents and the substantial amount of discovery, motion practice, and trial work that will be required in this action.

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PLAINTIFFS' JOINT MOTION FOR APPOINTMENT OF INTERIM CO-LEAD COUNSEL

V.

CONCLUSION.

For the foregoing reasons, Plaintiffs respectfully request that this Court appoint Hagens Berman Sobol Shapiro LLP and Hausfeld LLP as interim co-lead counsel pursuant to Rule 23(g)(3). Dated: September 16, 2009 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: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Plaintiff Samuel Michael Keller Respectfully submitted, 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: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Counsel for Plaintiff Edward Charles O'Bannon, Jr. Steve Berman (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, Washington 98101 Telephone: [phone]Facsimile: [phone] [e-mail] Shana E. Scarlett (Cal. Bar No. 217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: [phone] Facsimile: [phone] [e-mail] Additional Counsel for Plaintiff Samuel Michael Keller
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Stuart M. Paynter (Cal. Bar. No. 226147) THE PAYNTER LAW FIRM PLLC 1200 G Street N.W., Suite 800 Washington DC 20005 Telephone: [phone] Facsimile: [phone] [e-mail]

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Michael D. Hausfeld (pro hac vice) Megan E. Jones (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail]

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: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Jonathan W. Cuneo Daniel M. Cohen CUNEO GILBERT & LaDUCA LLP 507 C Street NE Washington, D.C. 20002 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Daniel S. Mason (Cal. Bar No. 54065) ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Tel: [phone] Fax: [phone] Email: [e-mail] Brian M. Sund Joshua G. Hauble MORRISON FENSKE & SUND, P.A. 5125 County Road 101, Suite 202 Minnetonka, MN 55345 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail]

John F. Cove, Jr. (Cal. Bar No. 212213) BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 Tel: [phone] Fax: [phone] Email: [e-mail]

Vincent J. Esades HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Tel: [phone] Fax: [phone] Email: [e-mail] 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: [phone] Facsimile: [phone] Email: [e-mail] [e-mail]

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Steven J. Greenfogel MEREDITH COHEN GREENFOGEL & SKIRNICK, P.C. 1521 Locust Street, 8th Floor Philadelphia, Pennsylvania 19102 Tel: [phone] Fax: [phone] Email: [e-mail]

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: [phone] Fax: [phone] Email: [e-mail] [e-mail] Jay L. Himes Morissa Falk LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Stanley D. Bernstein Ronald J. Aranoff Dana Statsky Smith BERSTEIN LIEBHARD LLP 10 East 40th Street, 22nd Floor New York, New York 10016 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Carl A. Taylor Lopez LOPEZ & FANTEL 1510 114th Avenue Seattle, WA 98122-4024 Tel: [phone] Email: [e-mail]

Eugene A. Spector SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, Pennsylvania 19103 Tel: [phone] Fax: [phone] Email: [e-mail] Gordon Ball BALL & SCOTT, A PROFESSIONAL ASSOCIATION 550 Main Avenue, Suite 750 Knoxville, TN 37902 Tel: [phone] Fax: [phone] Email: [e-mail]

Allan Steyer (Cal. Bar. No. 100318) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Tel: [phone] Fax: [phone] Email: [e-mail] Additional Attorneys for Plaintiff Edward Charles O'Bannon, Jr.

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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 JOINT NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF INTERIM COLEAD COUNSEL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(g)(3). In compliance with General Order 45, X.B., I hereby attest that Robert B. Carey has concurred in this filing.

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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 16, 2009, I filed the following: PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S JOINT NOTICE OF MOTION AND MOTION FOR APPOINTMENT OF INTERIM CO-LEAD COUNSEL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(g)(3); DECLARATION OF ROBERT B. CAREY IN SUPPORT OF 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); DECLARATION OF JON T. KING IN SUPPORT OF 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); and [PROPOSED] ORDER GRANTING 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) 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____________________
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.