Pimental v. Google, Inc. et al
Filing
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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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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]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,
Plaintiffs,
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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.
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FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 11-cv-02585-SBA
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Pursuant to this Court’s September 8, 2011 minute entry (Dkt. No. 21), Plaintiffs Nicole
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Pimental and Jessica Franklin, along with Defendant Google Inc., and Defendant Slide, Inc.
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(collectively the “Parties”), jointly submit this Further Joint Case Management Statement. As
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further described below, Plaintiffs Pimental and Franklin consolidated their separate class action
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complaints through a Consolidated Complaint (“CC”) filed on September 14, 2011. (Dkt. No.
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24.) The CC additionally modifies the proposed class definition and adds a separate proposed
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subclass.
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1.
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Jurisdiction & Service:
Plaintiffs’ CC asserts that the Court has subject-matter jurisdiction over this case pursuant
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to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), because at least one member of the
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putative class is a citizen of a state different from Defendants and the amount in controversy
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exceeds the sum or value of $5,000,000. Defendants do not contest the existence of subject
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matter or personal jurisdiction or the venue of this action. No parties remain to be served.
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2.
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Facts:
Plaintiffs’ CC asserts a single claim for relief, alleging that Defendants transmitted text
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message advertisements through their group text messaging service known as Disco to the
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cellular telephones of Plaintiffs and the putative class and subclass in violation of the Telephone
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Consumer Protection Act, 47 U.S.C. § 227 (hereafter the “TCPA”). Specifically, Plaintiffs allege
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that Defendants made and transmitted text message advertisements that promoted the Disco group
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texting service and the Disco mobile application to Plaintiffs without express consent. Plaintiffs
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allege, on behalf of the putative class, that Defendants never sought nor obtained consent to make
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and transmit these text messages.
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Factual issues in this case include, but are not limited to, the following: (a) whether
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Plaintiffs and members of the proposed class and subclass received the text message calls at issue;
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(b) whether Plaintiffs and members of the proposed class gave prior express consent to receive
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those text message calls; (c) whether Defendants were responsible for making those text message
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calls and causing them to be transmitted to Plaintiffs and the members of the proposed class and
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subclass; (d) whether Defendants continued to make text message calls to Plaintiffs and the
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members of the subclass after they requested that all Disco text messages cease; and (e) whether
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Defendants used an “automatic telephone dialing system,” as that term is defined by the TCPA
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and applicable authorities.
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Defendants deny liability on Plaintiffs’ claims.
3.
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Legal Issues:
The legal issues in this case include, but are not limited to, the following: (a) whether the
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text message calls allegedly received by Plaintiffs and members of the proposed class and
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subclass violate the TCPA; (b) whether the putative class and subclass, as defined in the CC, may
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be certified under Rule 23; and (c) whether Plaintiffs and/or the putative class and subclass
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members are entitled to treble damages under the TCPA.
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4.
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Motions:
On September 12, 2011, the Parties filed a stipulation to consolidate the related case:
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Franklin v. Google, Inc. (11-cv-3333-SBA), which was at the time pending before this Court.
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(Dkt. No. 23.) The Court entered an order consolidating the two cases on September 22, 2011.
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(Dkt. No. 25.) There are no prior or pending motions. Plaintiffs anticipate filing a motion for
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class certification, motion for summary judgment motion and, if necessary, discovery-related
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motions.
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Defendants anticipate filing a motion to dismiss pursuant to Rule 12, motion for summary
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judgment motion and, if necessary, discovery-related motions.
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5.
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Amendment of Pleadings:
The initial complaint in this action was filed on May 27, 2011. Plaintiff Pimental filed the
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FAC on June 24, 2011, as of right. (Dkt. 5.) Plaintiffs filed a Consolidated Complaint on
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September 14, 2011. (Dkt. No. 24.) Plaintiffs do not anticipate the need to file any further
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amendments to the pleadings at this time. Future developments, however, could necessitate the
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filing of amended pleadings, and the addition of un-named defendants based on information
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uncovered through discovery. The Parties agree to amend, or file any requests to amend,
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pleadings on or before February 14, 2012.
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6.
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Evidence Preservation:
The Parties have taken reasonable steps to preserve evidence, including electronically
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stored information, relevant to the issues reasonably evident in this action. The Parties have
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agreed to further discuss the following issues: (1) the identification of relevant and discoverable
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ESI; (2) the scope of discoverable ESI to be preserved and produced by the Parties; (3) the
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formats for preservation and production of ESI; (4) the potential for conducting discovery in
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phases or stages as a method for reducing costs and burden; (5) the procedures for handling
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inadvertent production of privileged information and other privilege waiver issues under Rule 502
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of the Federal Rules of Evidence; (6) any other relevant ESI issues involved in the case.
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The Parties have agreed to attempt to craft an appropriate protocol governing the
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production of ESI and have agreed to negotiate a Stipulated Protective Order.
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7.
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Disclosures:
Defendants believe that discovery, including the exchange of initial disclosures under
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Rule 26(a)(1), should be temporarily stayed pending resolution of Defendants’ forthcoming
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motion to dismiss, which Defendants believe will be dispositive. Plaintiffs disagree with that
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position and believes that discovery should not be stayed.
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In the event that no discovery stay issues, the Parties have agreed to exchange initial
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disclosures on or before November 1, 2011.
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8.
Discovery:
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As noted above, the Parties disagree as to whether a stay of discovery should issue
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pending resolution of Defendants’ motion to dismiss. Plaintiff contends that as no stay is
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currently in place, discovery may commence immediately. Defendants disagree and may file the
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appropriate motion. As stated above, if no discovery stay issues, the Parties will exchange Rule
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26(a)(1) disclosures by November 1, 2011. Further, if no discovery stay issues, the Parties
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propose the following schedule for discovery:
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Discovery shall not be bifurcated and class and merits discovery will take place
simultaneously.
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Fact discovery to close on June 22, 2012.
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FURTHER JOINT CASE MANAGEMENT STATEMENT
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Experts to be disclosed by May 16, 2012, and initial expert reports to be disclosed by
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June 15, 2012; rebuttal experts to be disclosed by June 29, 2012, and rebuttal expert
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reports to be disclosed by July 27, 2012.
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Expert discovery to commence on May 16, 2012, and close on August 17, 2012.
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Although it is premature to anticipate the scope of discovery in this case, the Parties
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do not foresee the need for a modification of the scope of the discovery rules in the
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Federal Rules of Civil Procedure, or the standard discovery limitations thereunder.
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•
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The Parties agree that discovery sought in this case may involve confidential
information. Accordingly, as stated above, the Parties anticipate submitting a
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Stipulated Protective Order to the Court for approval within 60 days.
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The Parties agree that privilege logs need not be served until 60 days after a Party has
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completed its production in response to a set of requests for production. The Parties
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also agree that Rule 502(b) and (d) of the Federal Rules of Evidence shall apply to this
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case. As such, the inadvertent disclosure of privileged material shall not operate as a
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waiver of that privilege. The Parties’ Stipulated Protective Order to be presented to
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the Court for approval will contain a clause regarding the inadvertent production of
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privileged material and the handling of the same.
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9.
Class Actions:
This action is a putative class action and requires the following additions to the Parties’
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Joint Case Management Conference Statement pursuant to Civil Local Rule 16-9(b). The CC
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asserts this matter is maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and (3) and
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defines the Disco Mobile App Class as: “All persons who received the Disco Mobile App Text, or
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a substantially similar text from Defendants, that advertised Disco’s mobile application.” The
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CC further defines the Leave SubClass as: “All persons who received any text message calls
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through the Disco group texting service after texting “leave” to a Disco texting group.” Plaintiffs
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reserve the right to seek leave of Court to revise this definition after sufficient discovery.
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Plaintiffs intend on moving this Court to certify a class under Rule 23(b)(3) of the Federal
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Rules of Civil Procedure after appropriate discovery, and the Parties have agreed to tentatively set
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September 14, 2012, as the date for Plaintiffs to file a class certification motion. Future
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developments in the case (e.g., motion practice, joinder of additional parties) may require that the
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date for filing a class certification motion be delayed.
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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
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individual members of the Class, including: (a) whether the text messages at issue were sent using
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an automatic telephone dialing system; (b) whether Plaintiffs and the Class gave their prior
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express consent to receive the text messages at issues; and (c) whether the transmission of the text
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messages at issue was done in willful violation of the TCPA so that statutorily available treble
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damages are warranted.
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3. Typicality: Plaintiffs allege that Defendants have acted or failed to act on grounds
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generally applicable to the Plaintiffs and other members of the Class by allegedly transmitting en
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masse the text messages at issue to Plaintiffs and the Class in the same or similar manner
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requiring the Court’s imposition of uniform statutory relief.
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4. Adequacy: Plaintiffs will fairly and adequately represent and protect the interests of
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the other members of the proposed Class. Plaintiffs have retained counsel with substantial
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experience in prosecuting complex litigation and class actions. Plaintiffs and their counsel are
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committed to vigorously prosecuting this action on behalf of the members of the Class, and have
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the financial resources to do so. Neither Plaintiffs nor their counsel have any interest adverse to
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those of the other members of the Class.
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5. Requirements under Rule 23(b)(3): The questions of law and fact discussed above
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predominate over any questions affecting only individual members as Defendants’ alleged
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conduct was uniform as to the Plaintiffs and the Class. This class action lawsuit is the most fair
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and efficient way of adjudicating this controversy. The members of the Class would find the cost
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of litigating their claims to be prohibitive, as each individual plaintiff has suffered relatively small
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statutory damages compared to the costs of litigation. A class action is also superior to multiple
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individual actions in that it conserves the resources of the courts and the litigants, and promotes
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consistency and efficiency of adjudication.
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Defendants dispute that this action is maintainable as a class action under Rule 23.
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Defendants anticipate opposing any motion to certify a class in this action.
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10.
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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.
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Relief:
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Plaintiffs seek the following relief:
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(a)
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An order certifying the action as a Class Action and designating Plaintiffs and their
counsel as representatives of the Class;
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(b)
Injunctive relief for the Class on Count I;
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(c)
Actual damages, or statutory damages in the amount of $500 per violation under
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47 U.S.C. § 227(b)(3)(B), whichever is greater, with a possible trebling under §
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227(b)(3)(C);
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(d)
An award of reasonable attorneys’ fees and costs for Plaintiffs and their counsel;
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(e)
Such other and further relief as the Court may deem just and proper.
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12.
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Settlement & ADR:
The Parties have had informal discussions regarding potential ADR, but have not yet
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reached agreement on a specific ADR plan for the case, due largely to the early stage of the
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proceedings. The Parties filed a notice of need for ADR phone conference on September 8, 2011,
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and an ADR call is scheduled for October 6, 2011. (Dkt. Nos. 19, 26).
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13.
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Consent to Magistrate Judge for All Purposes:
All Parties do not consent to proceed before a magistrate judge for all purposes.
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Other References:
The Parties do not believe this case is suitable for reference to binding arbitration, a
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special master, or the Judicial Panel on Multidistrict Litigation.
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15.
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Narrowing of Issues:
The Parties can discuss, through the discovery process and any dispositive motions, the
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potential narrowing of issues. At this stage, it is too early to have a meaningful discussion
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regarding the narrowing of issues.
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Expedited Schedule:
The Parties agree that this case is not suitable for an expedited process or streamlined
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procedures.
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Scheduling:
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The parties propose the following schedule:
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(a)
A trial date of June 1, 2013;
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(b)
Dispositive motions due by January 11, 2013;
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(c)
Motion for class certification due by September 14, 2012;
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(d)
Expert witness disclosures under Fed. R. Civ. P. 26(a)(2) due by May 16, 2012,
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and initial expert reports due by June 15, 2012; rebuttal experts designated by June
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29, 2012, and rebuttal expert reports shall be disclosed by July 27, 2012. Expert
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discovery to be completed by August 17, 2012;
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(e)
Class and merits discovery completed by June 22, 2012; and
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(f)
Amended pleadings due by February 14, 2012.
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Trial:
The Parties anticipate a jury trial that would last approximately three to five days.
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Disclosure of Non-party Interested Entities or Persons:
The Parties have filed their respective Certifications of Interested Entities or Persons.
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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.
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DATED: October 5, 2011
PERKINS COIE LLP
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By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON
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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
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DATED: October 5, 2011
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By: /s/ Sean P. Reis
SEAN P. REIS
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Attorneys for Plaintiffs NICOLE PIMENTAL
and JESSICA FRANKLIN, individually and
on behalf of all others similarly situated
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DATED: October 5, 2011
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Attorneys for Plaintiffs NICOLE PIMENTAL
and JESSICA FRANKLIN, individually and
on behalf of all others similarly situated
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WEISS & LURIE
By: /s/ Jordan Lurie
JORDAN LURIE
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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
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Case No. 11-cv-02585-SBA
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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
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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
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