Pimental v. Google, Inc. et al

Filing 27

JOINT CASE MANAGEMENT STATEMENT (Further), filed by Nicole Pimental, Jessica Franklin, Google, Inc., Slide, Inc.. (Dore, Christopher) (Filed on 10/5/2011) Modified on 10/6/2011 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 11 12 13 PERKINS COIE LLP BOBBIE J. WILSON (Bar No. 148317) bwilson@perkinscoie.com JOSHUA A. REITEN (Bar No. 238985) jreiten@perkinscoie.com DEBRA R. BERNARD dbernard@perkinscoie.com Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 Attorneys for Defendants GOOGLE INC. and SLIDE, INC. EDELSON MCGUIRE, LLP SEAN REIS (Bar No. 184044) sreis@edelson.com 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 Telephone: (949) 459-2124 Facsimile: (949) 459-2123 Attorneys for Plaintiffs and the putative class [Additional counsel appearing on signature page] 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 19 NICOLE PIMENTAL and JESSICA FRANKLIN, individually and on behalf of all others similarly situated, Plaintiffs, 20 21 22 23 24 25 v. GOOGLE INC., a Delaware corporation, and SLIDE, INC., a Delaware corporation, Case No. 11-cv-02585-SBA FURTHER JOINT CASE MANAGEMENT STATEMENT Hearing: October 12, 2011 Time: 2:30 p.m. Defendants. This Document Relates to All Actions. 26 27 28 FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 Pursuant to this Court’s September 8, 2011 minute entry (Dkt. No. 21), Plaintiffs Nicole 2 Pimental and Jessica Franklin, along with Defendant Google Inc., and Defendant Slide, Inc. 3 (collectively the “Parties”), jointly submit this Further Joint Case Management Statement. As 4 further described below, Plaintiffs Pimental and Franklin consolidated their separate class action 5 complaints through a Consolidated Complaint (“CC”) filed on September 14, 2011. (Dkt. No. 6 24.) The CC additionally modifies the proposed class definition and adds a separate proposed 7 subclass. 8 1. 9 Jurisdiction & Service: Plaintiffs’ CC asserts that the Court has subject-matter jurisdiction over this case pursuant 10 to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), because at least one member of the 11 putative class is a citizen of a state different from Defendants and the amount in controversy 12 exceeds the sum or value of $5,000,000. Defendants do not contest the existence of subject 13 matter or personal jurisdiction or the venue of this action. No parties remain to be served. 14 2. 15 Facts: Plaintiffs’ CC asserts a single claim for relief, alleging that Defendants transmitted text 16 message advertisements through their group text messaging service known as Disco to the 17 cellular telephones of Plaintiffs and the putative class and subclass in violation of the Telephone 18 Consumer Protection Act, 47 U.S.C. § 227 (hereafter the “TCPA”). Specifically, Plaintiffs allege 19 that Defendants made and transmitted text message advertisements that promoted the Disco group 20 texting service and the Disco mobile application to Plaintiffs without express consent. Plaintiffs 21 allege, on behalf of the putative class, that Defendants never sought nor obtained consent to make 22 and transmit these text messages. 23 Factual issues in this case include, but are not limited to, the following: (a) whether 24 Plaintiffs and members of the proposed class and subclass received the text message calls at issue; 25 (b) whether Plaintiffs and members of the proposed class gave prior express consent to receive 26 those text message calls; (c) whether Defendants were responsible for making those text message 27 calls and causing them to be transmitted to Plaintiffs and the members of the proposed class and 28 subclass; (d) whether Defendants continued to make text message calls to Plaintiffs and the -1FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 members of the subclass after they requested that all Disco text messages cease; and (e) whether 2 Defendants used an “automatic telephone dialing system,” as that term is defined by the TCPA 3 and applicable authorities. 4 5 Defendants deny liability on Plaintiffs’ claims. 3. 6 Legal Issues: The legal issues in this case include, but are not limited to, the following: (a) whether the 7 text message calls allegedly received by Plaintiffs and members of the proposed class and 8 subclass violate the TCPA; (b) whether the putative class and subclass, as defined in the CC, may 9 be certified under Rule 23; and (c) whether Plaintiffs and/or the putative class and subclass 10 members are entitled to treble damages under the TCPA. 11 4. 12 Motions: On September 12, 2011, the Parties filed a stipulation to consolidate the related case: 13 Franklin v. Google, Inc. (11-cv-3333-SBA), which was at the time pending before this Court. 14 (Dkt. No. 23.) The Court entered an order consolidating the two cases on September 22, 2011. 15 (Dkt. No. 25.) There are no prior or pending motions. Plaintiffs anticipate filing a motion for 16 class certification, motion for summary judgment motion and, if necessary, discovery-related 17 motions. 18 Defendants anticipate filing a motion to dismiss pursuant to Rule 12, motion for summary 19 judgment motion and, if necessary, discovery-related motions. 20 5. 21 Amendment of Pleadings: The initial complaint in this action was filed on May 27, 2011. Plaintiff Pimental filed the 22 FAC on June 24, 2011, as of right. (Dkt. 5.) Plaintiffs filed a Consolidated Complaint on 23 September 14, 2011. (Dkt. No. 24.) Plaintiffs do not anticipate the need to file any further 24 amendments to the pleadings at this time. Future developments, however, could necessitate the 25 filing of amended pleadings, and the addition of un-named defendants based on information 26 uncovered through discovery. The Parties agree to amend, or file any requests to amend, 27 pleadings on or before February 14, 2012. 28 -2FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 6. 2 Evidence Preservation: The Parties have taken reasonable steps to preserve evidence, including electronically 3 stored information, relevant to the issues reasonably evident in this action. The Parties have 4 agreed to further discuss the following issues: (1) the identification of relevant and discoverable 5 ESI; (2) the scope of discoverable ESI to be preserved and produced by the Parties; (3) the 6 formats for preservation and production of ESI; (4) the potential for conducting discovery in 7 phases or stages as a method for reducing costs and burden; (5) the procedures for handling 8 inadvertent production of privileged information and other privilege waiver issues under Rule 502 9 of the Federal Rules of Evidence; (6) any other relevant ESI issues involved in the case. 10 The Parties have agreed to attempt to craft an appropriate protocol governing the 11 production of ESI and have agreed to negotiate a Stipulated Protective Order. 12 7. 13 Disclosures: Defendants believe that discovery, including the exchange of initial disclosures under 14 Rule 26(a)(1), should be temporarily stayed pending resolution of Defendants’ forthcoming 15 motion to dismiss, which Defendants believe will be dispositive. Plaintiffs disagree with that 16 position and believes that discovery should not be stayed. 17 In the event that no discovery stay issues, the Parties have agreed to exchange initial 18 disclosures on or before November 1, 2011. 19 8. Discovery: 20 As noted above, the Parties disagree as to whether a stay of discovery should issue 21 pending resolution of Defendants’ motion to dismiss. Plaintiff contends that as no stay is 22 currently in place, discovery may commence immediately. Defendants disagree and may file the 23 appropriate motion. As stated above, if no discovery stay issues, the Parties will exchange Rule 24 26(a)(1) disclosures by November 1, 2011. Further, if no discovery stay issues, the Parties 25 propose the following schedule for discovery: 26 • 27 28 Discovery shall not be bifurcated and class and merits discovery will take place simultaneously. • Fact discovery to close on June 22, 2012. -3- FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 • Experts to be disclosed by May 16, 2012, and initial expert reports to be disclosed by 2 June 15, 2012; rebuttal experts to be disclosed by June 29, 2012, and rebuttal expert 3 reports to be disclosed by July 27, 2012. 4 • Expert discovery to commence on May 16, 2012, and close on August 17, 2012. 5 • Although it is premature to anticipate the scope of discovery in this case, the Parties 6 do not foresee the need for a modification of the scope of the discovery rules in the 7 Federal Rules of Civil Procedure, or the standard discovery limitations thereunder. 8 • 9 The Parties agree that discovery sought in this case may involve confidential information. Accordingly, as stated above, the Parties anticipate submitting a 10 Stipulated Protective Order to the Court for approval within 60 days. 11 • The Parties agree that privilege logs need not be served until 60 days after a Party has 12 completed its production in response to a set of requests for production. The Parties 13 also agree that Rule 502(b) and (d) of the Federal Rules of Evidence shall apply to this 14 case. As such, the inadvertent disclosure of privileged material shall not operate as a 15 waiver of that privilege. The Parties’ Stipulated Protective Order to be presented to 16 the Court for approval will contain a clause regarding the inadvertent production of 17 privileged material and the handling of the same. 18 19 9. Class Actions: This action is a putative class action and requires the following additions to the Parties’ 20 Joint Case Management Conference Statement pursuant to Civil Local Rule 16-9(b). The CC 21 asserts this matter is maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and (3) and 22 defines the Disco Mobile App Class as: “All persons who received the Disco Mobile App Text, or 23 a substantially similar text from Defendants, that advertised Disco’s mobile application.” The 24 CC further defines the Leave SubClass as: “All persons who received any text message calls 25 through the Disco group texting service after texting “leave” to a Disco texting group.” Plaintiffs 26 reserve the right to seek leave of Court to revise this definition after sufficient discovery. 27 Plaintiffs intend on moving this Court to certify a class under Rule 23(b)(3) of the Federal 28 Rules of Civil Procedure after appropriate discovery, and the Parties have agreed to tentatively set -4FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 September 14, 2012, as the date for Plaintiffs to file a class certification motion. Future 2 developments in the case (e.g., motion practice, joinder of additional parties) may require that the 3 date for filing a class certification motion be delayed. 4 5 6 7 8 9 Plaintiffs claim they are entitled to maintain this action as a class action under Fed. R. Civ. P. 23(a)-(b) because the following criteria are met. 1. Numerosity. The Class is estimated to consist of thousands of individuals to whom the allegedly unauthorized text message advertisements were transmitted. 2. Commonality: There are many questions of law and fact common to the claims of the Plaintiffs and other members of the Class which predominate over any questions that may affect 10 individual members of the Class, including: (a) whether the text messages at issue were sent using 11 an automatic telephone dialing system; (b) whether Plaintiffs and the Class gave their prior 12 express consent to receive the text messages at issues; and (c) whether the transmission of the text 13 messages at issue was done in willful violation of the TCPA so that statutorily available treble 14 damages are warranted. 15 3. Typicality: Plaintiffs allege that Defendants have acted or failed to act on grounds 16 generally applicable to the Plaintiffs and other members of the Class by allegedly transmitting en 17 masse the text messages at issue to Plaintiffs and the Class in the same or similar manner 18 requiring the Court’s imposition of uniform statutory relief. 19 4. Adequacy: Plaintiffs will fairly and adequately represent and protect the interests of 20 the other members of the proposed Class. Plaintiffs have retained counsel with substantial 21 experience in prosecuting complex litigation and class actions. Plaintiffs and their counsel are 22 committed to vigorously prosecuting this action on behalf of the members of the Class, and have 23 the financial resources to do so. Neither Plaintiffs nor their counsel have any interest adverse to 24 those of the other members of the Class. 25 5. Requirements under Rule 23(b)(3): The questions of law and fact discussed above 26 predominate over any questions affecting only individual members as Defendants’ alleged 27 conduct was uniform as to the Plaintiffs and the Class. This class action lawsuit is the most fair 28 and efficient way of adjudicating this controversy. The members of the Class would find the cost -5FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 of litigating their claims to be prohibitive, as each individual plaintiff has suffered relatively small 2 statutory damages compared to the costs of litigation. A class action is also superior to multiple 3 individual actions in that it conserves the resources of the courts and the litigants, and promotes 4 consistency and efficiency of adjudication. 5 Defendants dispute that this action is maintainable as a class action under Rule 23. 6 Defendants anticipate opposing any motion to certify a class in this action. 7 10. 8 9 10 Related Cases: As set forth above, the related case, Franklin v. Google, Inc. (11-cv-03333-SBA), has been consolidated with the case before the Court. 11. Relief: 11 Plaintiffs seek the following relief: 12 (a) 13 An order certifying the action as a Class Action and designating Plaintiffs and their counsel as representatives of the Class; 14 (b) Injunctive relief for the Class on Count I; 15 (c) Actual damages, or statutory damages in the amount of $500 per violation under 16 47 U.S.C. § 227(b)(3)(B), whichever is greater, with a possible trebling under § 17 227(b)(3)(C); 18 (d) An award of reasonable attorneys’ fees and costs for Plaintiffs and their counsel; 19 (e) Such other and further relief as the Court may deem just and proper. 20 12. 21 Settlement & ADR: The Parties have had informal discussions regarding potential ADR, but have not yet 22 reached agreement on a specific ADR plan for the case, due largely to the early stage of the 23 proceedings. The Parties filed a notice of need for ADR phone conference on September 8, 2011, 24 and an ADR call is scheduled for October 6, 2011. (Dkt. Nos. 19, 26). 25 13. 26 Consent to Magistrate Judge for All Purposes: All Parties do not consent to proceed before a magistrate judge for all purposes. 27 28 -6FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 14. 2 Other References: The Parties do not believe this case is suitable for reference to binding arbitration, a 3 special master, or the Judicial Panel on Multidistrict Litigation. 4 15. 5 Narrowing of Issues: The Parties can discuss, through the discovery process and any dispositive motions, the 6 potential narrowing of issues. At this stage, it is too early to have a meaningful discussion 7 regarding the narrowing of issues. 8 16. 9 Expedited Schedule: The Parties agree that this case is not suitable for an expedited process or streamlined 10 procedures. 11 17. Scheduling: 12 The parties propose the following schedule: 13 (a) A trial date of June 1, 2013; 14 (b) Dispositive motions due by January 11, 2013; 15 (c) Motion for class certification due by September 14, 2012; 16 (d) Expert witness disclosures under Fed. R. Civ. P. 26(a)(2) due by May 16, 2012, 17 and initial expert reports due by June 15, 2012; rebuttal experts designated by June 18 29, 2012, and rebuttal expert reports shall be disclosed by July 27, 2012. Expert 19 discovery to be completed by August 17, 2012; 20 (e) Class and merits discovery completed by June 22, 2012; and 21 (f) Amended pleadings due by February 14, 2012. 22 18. 23 24 25 Trial: The Parties anticipate a jury trial that would last approximately three to five days. 19. Disclosure of Non-party Interested Entities or Persons: The Parties have filed their respective Certifications of Interested Entities or Persons. 26 27 28 -7FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 2 3 20. Other Matters: Other than mediation and the early filing of dispositive motions, Plaintiffs do not know of any other matter that may facilitate the just, speedy and inexpensive disposition of this matter. 4 5 DATED: October 5, 2011 PERKINS COIE LLP 6 By: /s/ Bobbie J. Wilson BOBBIE J. WILSON 7 8 Attorneys for Defendants GOOGLE INC. and SLIDE, INC. 9 10 DATED: October 5, 2011 11 By: /s/ Sean P. Reis SEAN P. REIS 12 Attorneys for Plaintiffs NICOLE PIMENTAL and JESSICA FRANKLIN, individually and on behalf of all others similarly situated 13 14 15 DATED: October 5, 2011 17 Attorneys for Plaintiffs NICOLE PIMENTAL and JESSICA FRANKLIN, individually and on behalf of all others similarly situated 18 20 21 22 23 24 25 26 27 28 WEISS & LURIE By: /s/ Jordan Lurie JORDAN LURIE 16 19 EDELSON MCGUIRE, LLP Attorneys for Defendants GOOGLE INC. and SLIDE, INC. PERKINS COIE LLP BOBBIE J. WILSON (Bar No. 148317) bwilson@perkinscoie.com JOSHUA A. REITEN (Bar No. 238985) jreiten@perkinscoie.com DEBRA R. BERNARD dbernard@perkinscoie.com Four Embarcadero Center, Suite 2400 Attorneys for Plaintiffs and the putative class EDELSON MCGUIRE, LLP SEAN REIS (Bar No. 184044) sreis@edelson.com -8FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 Telephone: (949) 459-2124 Facsimile: (949) 459-2123 JAY EDELSON (Admitted Pro Hac Vice) (jedelson@edelson.com) RAFEY S. BALABANIAN (Admitted Pro Hac Vice) (rbalabanian@edelson.com) CHRISTOPHER L. DORE (Admitted Pro Hac Vice) (cdore@edelson.com) EDELSON MCGUIRE LLC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 SCOTT D. OWENS (Admitted Pro Hac Vice) (scott@scottowens.com) Law Offices of Scott D. Owens, Esq. 2000 East Oakland Park Boulevard, Suite 106 Ft. Lauderdale, Florida 33306 Telephone: (954) 306-8104 Facsimile: (954) 337-0666 JORDAN L. LURIE jlurie@weisslurie.com WEISS & LURIE10940 Wilshire Boulevard, Suite 2300 Los Angeles, California 90024 (310) 209-2348 (fax) (310) 209-6657 (direct) Stefan Coleman (pro hac vice application to be filed) LAW OFFICES OF STEFAN COLEMAN, PLLC 1072 Madison Ave, Suite 1 Lakewood, NJ 08701 Telephone: (877) 333-9427 21 22 23 24 25 26 27 28 -9FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA 1 2 3 4 5 6 7 CERTIFICATE OF SERVICE The undersigned certifies that, on October 5, 2011, he caused this document to be electronically filed with the Clerk of Court using the CM/ECF system, which will send notification of filing to counsel of record for each party. Dated: October 5, 2011 EDELSON MCGUIRE LLC By: /s/ Christopher L. Dore Christopher L. Dore Attorneys for Plaintiff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 11-cv-02585-SBA

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