Thelian v. AT&T Mobility LLC et al

Filing 9

ORDER re 8 Granting Stipulation for Stay of Proceedings Pending the U.S. Supreme Court's Decision in AT&T Mobility LLC v. Concepcion. Case Management Statement due by 3/8/2011. Case Management Conference set for 3/15/2011 02:00 PM. Signed by Judge Claudia Wilken on 9/9/2010. (ndr, COURT STAFF) (Filed on 9/9/2010)

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MAYER BROWN LLP JOHN NADOLENCO (SBN 181128) [e-mail] 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION KENNETH A. THELIAN, individually and on behalf of all others similarly situated, Plaintiff vs. AT&T MOBILITY LLC, NEW CINGULAR WIRELESS PCS LLC; NEW CINGULAR WIRELESS SERVICES, INC., Defendants. Case No. 4:10-cv-03440-CW STIPULATION FOR STAY OF PROCEEDINGS PENDING THE U.S. SUPREME COURT'S DECISION IN AT&T MOBILITY LLC V. CONCEPCION, ORDER Dept: Courtroom 2, 4th Floor Judge: Hon. Claudia Wilken

STIPULATION FOR STAY OF PROCEEDINGS PENDING THE U.S. SUPREME COURT'S DECISION IN AT&T MOBILITY LLC V. CONCEPCION; [PROPOSED] ORDER Case No. 4:10-CV-03440-CW
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Plaintiff Kenneth Thelian and Defendants AT&T Mobility LLC, New Cingular Wireless PCS LLC, and New Cingular Wireless Services, Inc. (collectively, "ATTM"), by and through their respective counsel of record, hereby stipulate as follows: WHEREAS: 1. On August 5, 2010, Thelian commenced this action by filing a complaint in this

Court. In the complaint, Thelian asserts claims under federal and New York law on behalf of a putative nationwide class of ATTM customers. 2. The same day, Thelian filed an administrative motion to relate this case to

McArdle v. AT&T Mobility LLC, No. CV-09-01117 (CW) (MEJ), indicating that the actions "appear to be related in that they are both class actions brought on behalf of similar classes, including roughly the same time period, name the same defendants, allege similar causes of action based on the same relevant events and allege the same damages." Id. at 1. The Court issued an order relating McArdle and Thelian on August 24, 2010. 3. Since July 20, 2010, the McArdle action has been stayed pending the U.S.

Supreme Court's decision in AT&T Mobility LLC v. Concepcion, 09-893. See Order Granting Defendants' Motion for Reconsideration, Denying As Moot Defendants' Administrative Motion for Leave to Respond and Granting Defendants' Alternative Motion to Strike, McArdle v. AT&T Mobility LLC, No. CV-09-01117 (CW) (MEJ) (N.D. Cal. July 20, 2010). This Court had held that McArdle's arbitration agreement with ATTM is unconscionable under California law because it forbids class arbitration. In Concepcion, the Supreme Court likely will resolve whether the Federal Arbitration Act preempts this application of California unconscionability law, which may require the enforcement of McArdle's arbitration agreement. 4. The parties agree that a stay of proceedings pending Concepcion also is

appropriate in the Thelian action. Thelian is an ATTM customer residing in California. Compl. ¶ 2. The enforceability of his agreement to arbitrate disputes with ATTM on an individual basis therefore may also turn on the outcome of Concepcion. ///
STIPULATION FOR STAY OF PROCEEDINGS PENDING THE U.S. SUPREME COURT'S DECISION IN AT&T MOBILITY LLC V. CONCEPCION; [PROPOSED] ORDER ; Case No. 4:10-CV-03440-CW
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/// NOW, THEREFORE, THE PARTIES JOINTLY STIPULATE AS FOLLOWS: As with the McArdle action, this action is stayed pending the U.S. Supreme Court's final action in Concepcion. Within 14 days of the date of the decision in that action, the parties shall file a joint brief that offers a proposal on how the Court should proceed in the McArdle and Thelian actions in light of the decision in Concepcion. Dated: September 7, 2010 MAYER BROWN LLP By: /s/ John Nadolenco John Nadolenco

JOHN NADOLENCO (SBN 181128) [e-mail] 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Dated: September 7, 2010 GUTRIDE SAFIER LLP By: /s/ Seth A. Safier Seth A. Safier

ADAM J. GUTRIDE [e-mail] SETH A. SAFIER [e-mail] 835 Douglass Street San Francisco, CA 94114 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff

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STIPULATION FOR STAY OF PROCEEDINGS PENDING THE U.S. SUPREME COURT'S DECISION IN AT&T MOBILITY LLC V. CONCEPCION; [PROPOSED] ORDER ; Case No. 4:10-CV-03440-CW
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IT IS SO ORDERED. The Case Management Conference set for December 14, 2010, is continued to March 15, 2011 at 2 p.m.

Dated: September 9, 2010

_________________________________ Hon. Claudia Wilken U.S. District Judge

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STIPULATION FOR STAY OF PROCEEDINGS PENDING THE U.S. SUPREME COURT'S DECISION IN AT&T MOBILITY LLC V. CONCEPCION; [PROPOSED] ORDER ; Case No. 4:10-CV-03440-CW
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