Fazio v. Apple, Inc

Filing 58

ORDER by Judge Claudia Wilken denying 50 Motion to Change Interim Lead Class Counsel Structure (cwlc2, COURT STAFF) (Filed on 7/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE IPHONE 4S CONSUMER
LITIGATION,
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No. C 12-1127 CW
ORDER DENYING
MOTION TO CHANGE
INTERIM LEAD CLASS
COUNSEL STRUCTURE
(Docket No. 50)

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On March 29, 2012, the Court appointed the firms of Robbins,

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Geller, Rudman & Dowd, LLP, Barnow and Associates, P.C. and Gardy

United States District Court
For the Northern District of California

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& Notis, LLP as interim co-lead class counsel.

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Faruqi & Faruqi, LLP (F&F), counsel for Plaintiff David Jones, now

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moves to modify the Court’s Order and appoint it as co-lead class

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counsel, along with the three firms already serving in that role.

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Having considered the papers filed by the parties, the Court

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DENIES the motion.

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Docket No. 14.

Federal Rule of Civil Procedure 23(g)(3) states, “The court

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may designate interim counsel to act on behalf of a putative class

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before determining whether to certify the action as a class

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action.”

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court consider the following factors:

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Rule 23 requires that, when appointing counsel, the

(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.

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Federal Rule of Civil Procedure Rule 23(g)(1)(A).

“All other

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things being equal,” if an attorney has performed the

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investigatory and analytical tasks necessary to draft the

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complaint, unless that attorney has merely copied a complaint

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from another action, “he or she is in a better position to

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represent the class fairly and adequately than attorneys who

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have not undertaken those tasks.”

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§ 23.120[3][a] (citing Rule 23, advisory committee note of

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2003).

5 Moore’s Federal Practice

The Court may also “consider any other matter

United States District Court
For the Northern District of California

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pertinent to counsel’s ability to fairly and adequately

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represent the interests of the class.”

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Procedure Rule 23(g)(1)(B).

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Federal Rule of Civil

There is no dispute that F&F and the current co-lead class

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counsel all have experience in class actions and complex

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litigation, knowledge of the applicable law and adequate

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resources.

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class counsel.

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actions several weeks before F&F filed its complaint in the Jones

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case, during which time the first lawsuits received substantial

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national attention.

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the Jones complaint contains strikingly similarly allegations to

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those in the original Fazio complaint.

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characterization, the similarities are not limited to quotations

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from Defendant Apple, Inc.’s press releases and advertisements.

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The allegations are organized in almost identical manners, cite

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the same sources in the same order and use similar language

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outside of quotations.

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fact that Siri does not perform as advertised, recent reports have

However, the first factor favors the current co-lead
They filed the original complaints in the separate

A comparison of the complaints reveals that

Contrary to F&F’s

Cf. Fazio Compl. ¶ 32 (“In addition to the

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shown that continuous Siri usage dramatically increases an iPhone

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4S users’ monthly data usage, and can easily push users over their

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data plans.”), with Jones Compl. ¶ 25 (“In addition to the fact

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that the Siri Function does not function as advertised, a recent

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report has warned that continuous usage of the Siri Function

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dramatically increases an iPhone 4S users’ monthly data usage, and

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can easily push users over the allotted data usage on their data

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plans.”).

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F&F shows no deficiency with the current co-lead class

United States District Court
For the Northern District of California

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counsel.

Thus, continuity of counsel, instead of changing counsel

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during the pendency of a potentially dispositive motion, serves

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the interest of providing proper representation for the putative

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class.

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class counsel sought to create the current structure purposefully

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to exclude F&F from participating in the prosecution of the

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action, the Court finds that F&F has offered no evidence to

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support any nefarious purpose.

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lead class counsel filed their stipulation proposing the current

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structure before F&F initiated the Jones action.

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current structure does provide for participation in the litigation

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of all Plaintiffs’ counsel and not just those serving as co-lead

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class counsel.

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lead class counsel.

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to serve in this capacity, instead of one or two of them, because

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they agreed to share the responsibilities, the Court declines to

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impose a more unmanageable and complicated administrative

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structure for class counsel in this relatively straightforward

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litigation.

To the extent that F&F implies that the current co-lead

The Court also notes that the co-

Further, the

Not all of Plaintiffs’ attorneys need to serve as
While the Court allowed the first three firms

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Accordingly, the Court finds that maintenance of the current

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interim class counsel structure best provides proper

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representation of the interests of the putative class, and DENIES

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F&F’s motion (Docket No. 50).

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IT IS SO ORDERED.

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Dated: July 5, 2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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