Michael Malone v. eBay, Inc.

Filing 425

STIPULATION AND ORDER REGARDING CLASS CERTIFICATION AND SUMMARY JUDGMENT BRIEFING AND DEPOSITION SCHEDULE (approving 418 ). Signed by Judge Jeremy Fogel on 9/11/2009. (jflc2, COURT STAFF) (Filed on 9/11/2009)

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MICHAEL F. TUBACH (S.B. #145955) [e-mail] THOMAS P. BROWN (S.B. #182916) [e-mail] RANDALL W. EDWARDS (S.B. #179053) [e-mail] O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant eBay Inc.

**E-Filed 9/11/2009**

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE EBAY SELLER ANTITRUST LITIGATION Case No. C 07-01882-JF (RS)
STIPULATION AND ------------------ ORDER [PROPOSED] REGARDING CLASS CERTIFICATION AND SUMMARY JUDGMENT BRIEFING AND DEPOSITION SCHEDULE

STIPULATION AND [PROPOSED] ORDER CASE # C 07-01882-JF (RS)

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Following the Court's September 1, 2009 Order that, among other things, set the hearing date for Plaintiffs' motion for class certification and eBay's motion for summary judgment on October 30, 2009, the parties have conferred further about certain scheduling issues related to those motions. The parties have reached the following stipulation with respect to the following matters and request the Court enter it as an order. The stipulation does not affect the October 30 hearing date. 1. Plaintiffs must file their Reply to eBay's Opposition to Plaintiffs' Motion

for Class Certification by September 30, 2009, rather than September 14, 2009, as currently required by the Court's Order dated April 21, 2009. 2. Plaintiffs must file their Opposition to eBay's Motion for Summary

Judgment by October 6, 2009, rather than October 9, 2009, as would be the deadline under the default schedule in the Local Rules, based on the October 30 hearing date. 3. eBay must file its Reply to Plaintiffs' Opposition to eBay's Motion for

Summary Judgment by October 16, 2009, which is the deadline under the default schedule in the Local Rules. 4. eBay may file a supplemental opposition to Plaintiffs' Motion for Class

Certification by September 11, 2009. This supplemental opposition may be no longer than ten pages and will be accompanied by a supporting declaration from Dr. Robert H. Topel. The scope of the Addendum and accompanying declaration shall be limited to the following: (1) discussing the additional testimony provided during the court-ordered continuation of Professor Woroch's August 31, 2009, deposition, which Judge Seeborg permitted after the August 14 deadline for eBay's original opposition; (2) responding to specific questions Plaintiffs raised in Dr. Topel's August 28, 2009, deposition that related to whether Dr. Topel controlled for the introduction of the iPhone when reaching his opinions regarding the cause of the shift in the price format of listings in certain categories during July 2008; (3) correcting exhibits 4 through 6 to Dr. Topel's Declaration in Support of eBay's Opposition to Plaintiffs' Motion for Class Certification, as well as supporting calculations; (4) including a new version of exhibit 5 that includes omitted
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STIPULATION AND [PROPOSED] ORDER CASE # C 07-01882-JF (RS)

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categories; and (5) providing non-substantive errata to Dr. Topel's Declaration. 5. The following depositions, or continuations of depositions, are scheduled on Lee E. Manfred: September 22 in Berkeley, CA. Kevin M. Murphy: September 21 in Chicago, IL. Robert H. Topel, 3 hours of continued deposition on September 24 in Phoenix, AZ. Brant M. Cruz, 3 hours of continued deposition on September 30 in Boston, MA, if Plaintiffs choose to proceed with a continued deposition. Armando Levy: September 28, 2009 in San Francisco, CA. 6. Plaintiffs will hold open October 9, 2009 and October 12, 2009 for eBay to

the following dates:

depose their yet-to-be-disclosed declarants in support of their Opposition to eBay's Motion for Summary Judgment. 7. Whenever either side submits a declaration from an expert to support a

substantive motion, opposition, or reply, the sponsoring party will provide to the other party all information relied upon by that expert declarant within 3 calendar days of the declaration. With respect to any expert declarations filed by Plaintiffs on October 6 in support of their opposition to summary judgment, where the expert will be made available for deposition on October 9, Plaintiffs will provide the information relied upon by that expert by no later than 10 a.m. on October 8.

Dated: September 8, 2009

O`MELVENY & MYERS LLP

By: /s/ Thomas P. Brown Thomas P. Brown Attorneys for Defendant eBay Inc.
STIPULATION AND [PROPOSED] ORDER CASE # C 07-01882-JF (RS)

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Dated: September 8, 2009

HAGENS BERMAN SOBOL SHAPIRO LLP

By: /s/ Jeff D. Friedman Jeff D. Friedman Attorneys for Plaintiffs and Proposed Class

I, Thomas P. Brown, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION AND SUMMARY JUDGMENT BRIEFING AND DEPOSITION SCHEDULE. In compliance with General Order 45, X.B., I hereby attest that Jeff D. Friedman has concurred in this filing.

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STIPULATION AND [PROPOSED] ORDER CASE # C 07-01882-JF (RS)

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ORDER IT IS SO ORDERED.
9/11/2009 Dated: ________________

_________________________________ The Honorable Jeremy D. Fogel United States District Judge Northern District of California

STIPULATION AND [PROPOSED] ORDER CASE # C 07-01882-JF (RS)