"The Apple iPod iTunes Anti-Trust Litigation"
Filing
698
Brief [Joint Proposal Regarding Notice Plan] filed bySomtai Troy Charoensak, Mariana Rosen, Melanie Tucker. (Attachments: # 1 Proposed Order)(Bernay, Alexandra) (Filed on 1/9/2012)
1 ROBBINS GELLER RUDMAN
& DOWD LLP
2 JOHN J. STOIA, JR. (141757)
BONNY E. SWEENEY (176174)
3 THOMAS R. MERRICK (177987)
ALEXANDRA S. BERNAY (211068)
4 CARMEN A. MEDICI (248417)
655 West Broadway, Suite 1900
5 San Diego, CA 92101
Telephone: 619/231-1058
6 619/231-7423 (fax)
johns@rgrdlaw.com
7 bonnys@rgrdlaw.com
tmerrick@rgrdlaw.com
8 xanb@rgrdlaw.com
cmedici@rgrdlaw.com
9
Class Counsel for Plaintiffs
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[Additional counsel appear on signature page.]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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THE APPLE IPOD ITUNES ANTI-TRUST ) Lead Case No. C-05-00037-JW
15 LITIGATION
)
) CLASS ACTION
16
)
) JOINT PROPOSAL REGARDING NOTICE
This Document Relates To:
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) PLAN
)
ALL ACTIONS.
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1 I.
INTRODUCTION
2
On November 22, 2011, the Court granted Plaintiffs’ motion for class certification and
3 directed that, on or before December 9, 2011, the parties file a proposed form of class notice and
4 joint proposal for dissemination of the notice for approval by the Court.1
5
Accordingly, the parties jointly propose the following process for dissemination of the class
6 notice.
7 II.
ADMINISTRATOR
8
To facilitate the notice process, Plaintiffs have retained Rust Consulting, Inc.
9 (“Administrator”), an experienced and highly qualified notice administrator, to assist and provide
10 professional guidance in the implementation of the notice program.
11 III.
FORM OF NOTICE
12
The parties jointly submit:2 (1) a proposed summary notice for publication (“Summary
13 Notice”), attached as Exhibit 1; (2) a proposed Notice of Pendency of Class Action to be emailed to
14 those prospective Class Members for whom the parties have email addresses (“Notice”), attached as
15 Exhibit 2; and (3) a proposed long-form notice to be published on a website (“Long-Form Notice”),
16 attached as Exhibit 3.3 The notices define the Class and describe the nature of the action and the
17 binding effect of a later Class judgment on Class Members. In addition, the notices inform the Class
18 Members that, if they do not want to be a Class Member and wish to retain their right to pursue their
19 own independent action at their own expense and appear through their own counsel, they can request
20 to be excluded from the Class. They can do so by mailing a letter to the Administrator setting forth
21 their name and address and requesting exclusion. Any requests for exclusion from Class Members
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1
26
3
The Court subsequently changed the due date to January 9, 2012, following the parties’
request for an extension. Dkt. No. 696.
24
2
references to “Exhibit” are to the exhibits
25 Bernay AllSupport of Joint Proposal Regarding Noticeattached to the Declaration of Alexandra S.
in
Plan, filed concurrently.
The parties are working on securing a domain name, but have not yet reached an agreement
on a website name. The parties expect to come to agreement shortly and will inform the Court of the
27 agreed-upon domain name.
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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1 shall be postmarked via U.S. mail, no later than 75 days after the last day on which the Notice is to
2 be disseminated.
3 IV.
TIMING OF DISSEMINATION OF NOTICE
4
Apple has proposed that dissemination of Notice be deferred until after the Ninth Circuit
5 rules on Apple’s Rule 23(f) petition for interlocutory review of this Court’s November 22, 2011
6 class-certification decision. Because the Ninth Circuit could reverse or modify the certification
7 decision, Apple believes that deferring the dissemination of notices “will avoid the possibility of the
8 Class receiving two conflicting Notices,” thereby serving the public interest by avoiding “the risk of
9 significantly confusing the class consumers.” In re Apple & ATTM Antitrust Litig., No. 5:07-cv10 05152-JW, slip. op. at 6 (N.D. Cal. Sept. 15, 2010), attached as Exhibit 4. As in ATTM, “neither
11 Plaintiffs nor the class will be significantly harmed by a short delay.” Id. Indeed, Class Members
12 may benefit by avoiding the confusion that conflicting notices would cause.
13
Plaintiffs do not object to the deferral.
14 V.
PROPOSED NOTICE PROCESS
15
The parties propose that individual notice be disseminated to potential Class Members via
16 email and publication.
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Apple maintains email addresses for customers who provided them when they purchased
18 iPods directly from Apple through its online and retail stores and when they registered their iPods
19 with Apple. Apple also maintains contact information for resellers who purchased iPods directly
20 from Apple during the Class Period. If the Court approves the Notice Plan, Apple will provide
21 approximately 4.9 million email addresses, plus additional contact information for the resellers, for
22 customers who purchased iPods directly from Apple during the Class Period. The email addresses
23 and other contact information will be designated as Confidential under the Protective Order
24 previously entered into in this case. Class Counsel will provide the email addresses and contact
25 information to the third-party Administrator, which it will use solely for the purposes of
26 disseminating the Notice. The Administrator has signed Attachment A to the Protective Order and
27 given its assurance that it will comply with the provisions of the Protective Order. Notice will be
28 disseminated to the Class within 30 days after the Court of Appeals’ denial of Apple’s 23(f) petition
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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1 or affirmance of this Court’s November 22, 2011 class certification Order becomes final or after this
2 Court approves the notice form and plan, whichever is later.
3
In addition to the direct Notice detailed above, notice will also be disseminated through
4 publication. The Administrator shall cause to be published the Summary Notice in Entertainment
5 Weekly and Wired as a means of reaching prospective Class Members not receiving individual
6 Notice.
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The Administrator shall establish a website, to make available to Class Members the
8 following information: (1) the Order granting class certification; (2) Plaintiffs’ Complaint; (3)
9 Defendant’s Answer; and (4) the Notice and Long-Form Notice and other such documents as the
10 parties may agree or the Court shall require.
The Administrator shall also establish a toll-free telephone number for Class Members to call
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12 if they have questions or to request copies of the Class notices or other documents. The
13 Administrator shall provide staff to answer the telephone, respond to ministerial matters such as
14 requests for copies of the notices and direct any substantive questions to Class Counsel.
15 VI.
THE PROPOSED NOTICE PLAN AND FORM OF NOTICE MEETS THE
REQUIREMENTS OF RULE 23
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A.
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The Proposed Class Notice Provides for the Best Notice Practicable
Under the Circumstances
Rule 23 requires the “best notice that is practicable under the circumstances.” Fed. R. Civ. P.
19 23(c)(2)(B). The notice should be “reasonably calculated, under all the circumstances, to apprise
20 interested parties of the pendency of the action and afford them an opportunity to present their
21 objections.” Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (quoting Mullane v. Central
22 Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652 (1950)). “There is no one ‘right way’
23 to provide notice as contemplated under Rule 23(e).” In re Wireless Tel. Fed. Cost Recovery Fees
24 Litig., No. 4:03-MD-015, 2004 WL 3671053, at *8-*9 (W.D. Mo. Apr. 20, 2004) (citations omitted).
25 Notice plans are not expected to reach every class member; Rule 23 requires the best notice
26 ‘practicable,’ not perfect notice. Fed. R. Civ. P. 23(c)(2)(B). “Due process does not require actual
27 notice, but rather a good faith effort to provide actual notice.” In re Prudential Ins. Co. of Am. Sales
28 Practices Litig., 177 F.R.D. 216, 231 (D.N.J. 1997). As described in detail above, the proposed
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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1 notice plan comprised of direct Notice supplemented by publication notice will reach a wide number
2 of Class Members.
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B.
Each Identified Class Member For Whom the Parties Have an Email
Address Will be Sent Notice
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The notice program provides that Apple will work with Class Counsel and the notice
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Administrator to cause the Notice to be sent by email to each identifiable Class Member by sending
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the Notice to the Class Member’s last known email address in the customer databases of Apple. The
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Notice will consist of a summary of the Long-Form Notice and a link to an official website, where
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the entire Long-Form Notice and other documents related to the case may be viewed and printed by
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Class Members as detailed, above, in §A. The Notice has been designed to minimize the chances
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that it could be blocked by spam filters. For example, the Notice will not include an attachment of
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the Long-Form Notice because such notices are known to sometimes trigger spam filters. Instead,
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the Notice will direct the recipient to the official website for complete information. The notice
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program provides that in the event a Notice is returned to the sender because it could not be
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delivered (“bounced back”), the parties may, if it is deemed useful, resend the Notice.
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Similar programs for notice by email rather than regular first-class mail have been accepted
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in other cases by courts throughout the country. See, e.g., In re Classmates.com Consol. Litig., No.
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C 09-45 RAJ, slip. op. (W.D. Wash. Apr. 19, 2010) (Order attached hereto as Exhibit 5); Cho v.
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Seagate Tech. (US) Holdings, Inc., No. CGC 06-453195, slip. op. (San Francisco Super. Ct. Mar. 1,
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2010) (attached hereto as Exhibit 6); and Barker v. Skype, Inc., No. 2:09-cv-01364-RSM, slip. op.
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(W.D. Wash. Nov. 17, 2009) (attached hereto as Exhibit 7).4 In the specific circumstances of this
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case, because iPod users are likely heavy technology users, email is likely to be a more efficient
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4
See also Browning v. Yahoo! Inc., No. C04-01463-HRL,
WL 4105971,
Cal.
25 Nov. 16, 2007) (citing Lundell v. Dell, Inc., No. C05-3970, 200620073507938, at *1 at *4 (N.D.Dec.
WL
(N.D. Cal.
Browning v. Yahoo! Inc., No. C04-01463-HRL, 2006
26 5, 2006) (approving notice by e-mail);2006); see also Chavez v. Netflix, Inc., 162 Cal. App. 4thWL
3826714, at *8-*9 (N.D. Cal. Dec. 27,
43,
58 (2008); Farinella v. PayPal, Inc., 611 F. Supp. 2d 250, 256 (E.D.N.Y. 2009) (e-mail notice sent
27 to more than 2.2 million PayPal users).
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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1 means of communicating with Class Members than regular first-class mail. As to Resellers, the
2 notice plan calls for email and mail notice to these Members of the Class.
3
C.
4
Apple has provided the contact information it has maintained for the resellers who purchased
Resellers Will Receive Notice Via U.S. Mail and Email
5 iPods directly from Apple during the Class Period. This information includes physical mailing
6 addresses, and for most, email addresses of the contact at each Reseller. In order to ensure the best
7 practicable notice of the Reseller Members of the Class, notice to these entities will be via U.S. mail
8 and email.
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D.
Notice Will Also Be Provided Through Print Media
As noted, the Administrator will cause the Summary Notice to published in Entertainment
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11 Weekly and Wired as a means of reaching prospective Class Members not receiving Notice.
12 Entertainment Weekly is a weekly magazine and online periodical that covers all aspects of pop
13 culture and entertainment including movies, television, music, books and new media. The magazine
14 is
“the
leading
consumer
brand
for
entertainment
and
pop
culture.”
See
15 http://www.ew.com/ew/static/advertising/pdfs/EW_2011MedaiKit.pdf. It has won more than 100
16 photography, design and editorial awards, including the 2010 Ad Age Media Vanguard Award for
17 Best Magazine App with a Purpose as well the 2010 MIN Best of the Web Awards, the 2010 MIN
18 Integrated Marketing Awards, Multiple Magazine Title Program and the 2009 Folio Magazine
19 Awards for Consumer, Entertainment, Full Issue (6/27/2008). Id.
20
Wired is a monthly magazine and online periodical that covers “how ideas and innovation are
21 changing the world” and “the future of business, culture, innovation and science.”
See
22 www.wired.com/services/press/center/about. “AdWeek named WIRED to its 2011 Hot List and
23 made WIRED its first-ever “Magazine of the Decade” in 2010. It was named to Advertising Age’s
24 A-List in 2010, received three National Magazine Awards for general excellence in 2005, 2007, and
25 2009, and was nominated for a National Magazine Award for Magazine of the Year in 2011.” It was
26 also “named 2009’s Best Magazine Website by AdWeek, Best News, Business & Finance Website
27 in 2009 by MPA Digital, and was a 2011 National Magazine Award for Digital Media ‘General
28 Excellence’ finalist.” Id.
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1
The Summary Notice will be published in Entertainment Weekly and Wired within 10 days
2 after completion of the emailing program described above. The Administrator will oversee
3 publication of the Summary Notice and will certify to the Court that publication occurred.
4
E.
5
An official website will feature copies of important case documents including the Long-Form
Notice Will Be Posted on a Designated Website
6 Notice, the Notice, the Court’s Order granting class certification and other documents the parties
7 agree to post or that the Court requires be posted. The documents will be available for Class
8 Members to review and print. The website will be available until at least one-year after settlement or
9 conclusion of trial in this action. No material may be posted to the website without Apple and
10 Plaintiffs’ joint agreement. The website will also feature a toll-free number Class Members may call
11 if they have questions.
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F.
The Proposed Form of Class Notice Adequately Informs Class
Members of Their Rights in This Litigation
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Class notice must “clearly and concisely state in plain, easily understood language” the
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nature of the action; the class definition; the class claims, issues, or defenses; that the class member
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may appear through counsel; that the court will exclude from the class any member who requests
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exclusion; the time and manner for requesting exclusion or for raising objections; and the binding
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effect of a later class judgment on class members. See Fed. R. Civ. P. 23(c)(2)(B). As detailed
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above, the email and Long-Form Notices proposed here comply with each of these requirements.
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The parties respectfully request that the Court approve the proposed forms of notice, and
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direct that Notice be disseminated as proposed.
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DATED: January 9, 2012
Respectfully submitted,
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ROBBINS GELLER RUDMAN
& DOWD LLP
JOHN J. STOIA, JR.
BONNY E. SWEENEY
THOMAS R. MERRICK
ALEXANDRA S. BERNAY
CARMEN A. MEDICI
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674909_2
s/ Alexandra S. Bernay
ALEXANDRA S. BERNAY
JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
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Class Counsel for Plaintiffs
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THE KATRIEL LAW FIRM
ROY A. KATRIEL
1101 30th Street, N.W., Suite 500
Washington, DC 20007
Telephone: 202/625-4342
202/330-5593 (fax)
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BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
ANDREW S. FRIEDMAN
FRANCIS J. BALINT, JR.
ELAINE A. RYAN
TODD D. CARPENTER
2901 N. Central Avenue, Suite 1000
Phoenix, AZ 85012
Telephone: 602/274-1100
602/274-1199 (fax)
BRAUN LAW GROUP, P.C.
MICHAEL D. BRAUN
10680 West Pico Blvd., Suite 280
Los Angeles, CA 90064
Telephone: 310/836-6000
310/836-6010 (fax)
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MURRAY FRANK LLP
BRIAN P. MURRAY
275 Madison Avenue, Suite 801
New York, NY 10016
Telephone: 212/682-1818
212/682-1892 (fax)
GLANCY BINKOW & GOLDBERG LLP
MICHAEL GOLDBERG
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: 310/201-9150
310/201-9160 (fax)
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Additional Counsel for Plaintiffs
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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1 DATED: January 9, 2012
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JONES DAY
ROBERT A. MITTELSTAEDT
CRAIG E. STEWART
DAVID C. KIERNAN
MICHAEL T. SCOTT
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s/ David C. Kiernan
DAVID C. KIERNAN
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555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: 415/626-3939
415/875-5700 (fax)
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Attorneys for Defendant Apple Inc.
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ECF CERTIFICATION
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The filing attorney attests that she has obtained concurrence regarding the filing of this
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document from the signatories to this document.
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14 Dated: January 9, 2012
By:
s/ Alexandra S. Bernay
ALEXANDRA S. BERNAY
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JOINT PROPOSAL REGARDING NOTICE PLAN - C-05-00037-JW
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CERTIFICATE OF SERVICE
I hereby certify that on January 9, 2012, I authorized the electronic filing of the foregoing
3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to
4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I
5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF participants indicated on the attached Manual Notice List.
7
I certify under penalty of perjury under the laws of the United States of America that the
8 foregoing is true and correct. Executed on January 9, 2012.
9
s/ Alexandra S. Bernay
ALEXANDRA S. BERNAY
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ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Telephone: 619/231-1058
619/231-7423 (fax)
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E-mail:
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674909_2
xanb@rgrdlaw.com
CAND-ECF-
Page 1 of 2
Mailing Information for a Case 5:05-cv-00037-JW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case.
Francis Joseph Balint , Jr
fbalint@bffb.com
Alexandra Senya Bernay
xanb@rgrdlaw.com
Michael D Braun
service@braunlawgroup.com
Michael D. Braun
service@braunlawgroup.com,clc@braunlawgroup.com
Todd David Carpenter
tcarpenter@bffb.com,pjohnson@bffb.com,rcreech@bffb.com
Andrew S. Friedman
khonecker@bffb.com,rcreech@bffb.com,afriedman@bffb.com
Alreen Haeggquist
alreenh@zhlaw.com,judyj@zhlaw.com,winkyc@zhlaw.com
Roy Arie Katriel
rak@katriellaw.com,rk618@aol.com
Thomas J. Kennedy
tkennedy@murrayfrank.com
David Craig Kiernan
dkiernan@jonesday.com,lwong@jonesday.com
Carmen Anthony Medici
cmedici@rgrdlaw.com,slandry@rgrdlaw.com
Thomas Robert Merrick
tmerrick@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.com
Caroline Nason Mitchell
cnmitchell@jonesday.com,mlandsborough@jonesday.com
Robert Allan Mittelstaedt
ramittelstaedt@jonesday.com,mlandsborough@jonesday.com
Brian P. Murray
bmurray@murrayfrank.com
George A. Riley
griley@omm.com,lperez@omm.com,cchiu@omm.com
Elaine A. Ryan
https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?60673363111765-L_1_0-1
1/9/2012
CAND-ECF-
Page 2 of 2
eryan@bffb.com,nserden@bffb.com
Jacqueline Sailer
jsailer@murrayfrank.com
Michael Tedder Scott
mike.scott@dlapiper.com,carolyn.ernser@dlapiper.com
Craig Ellsworth Stewart
cestewart@jonesday.com,mlandsborough@jonesday.com
John J. Stoia , Jr
jstoia@rgrdlaw.com
Bonny E. Sweeney
bonnys@rgrdlaw.com,christinas@rgrdlaw.com,E_file_sd@rgrdlaw.com
Helen I. Zeldes
helenz@zhlaw.com
Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require
manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to
create notices or labels for these recipients.
(No manual recipients)
https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?60673363111765-L_1_0-1
1/9/2012
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