Gomelsky v. Apple, Inc.

Filing 76

MOTION for Administrative Relief filed by Reuben Berenblat, Giorgio Gomelsky, Laura Miller, Andrew Personette, Earl Simpson, Deborah J. Vail. (Attachments: # 1 Signature Page (Declarations/Stipulations), # 2 Proposed Order)(Pettit, Eric) (Filed on 4/22/2010)

1 MEISELMAN, DENLEA, PACKMAN, 2 JEFFREY I. CARTON (admitted pro hac vice) 3 JEROME Noll (admitted pro hac vice) 4 MICHAEL A. BERG (admitted pro hac vice) 5 1311 Mamaroneck Avenue

CARTON & EBERZ P.C. [e-mail] [e-mail] [e-mail]

6 Telephone: [phone]

White Plains, New York 10605 Facsimile: [phone]

8 CALDWELL LESLIE & PROCTOR, PC 9 [e-mail] 10 [e-mail]

ROBYN C. CROWTHER, SBN 193840 ERIC S. PETTIT, SBN 234657 1000 Wilshire Blvd., Suite 600 Telephone: [phone]

11 Los Angeles, California 90017-2463 12 Facsimile: [phone] 13 Attorneys for Plaintiffs 14 15 16 17

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION REUBEN BERENBLAT, ANDREW Case No. C-08-04969 JF LAURA MILLER, On behalf of themselves Plaintiffs, v. APPLE INC., Defendant.

18 PERSONETTE, EARL C. SIMPSON, 19 and all others similarly situated, 20 21 22 23 24 25 26 27
CALDWELL LESLIE & PROCTOR

PLAINTIFFS' MOTION FOR ADMINISTRATIVE RELIEF
[Declaration of Michael A. Berg and Proposed Order Submitted Herewith]

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PLAINTIFFS' MOTION FOR ADMINISTRATIVE RELIEF CASE NO. C-08-04969 JF

1

Pursuant to Local Civil Rule 7-11, Plaintiffs respectfully move this Court for

2 an opportunity to conduct limited, narrowly focused discovery of facts known 3 exclusively to defendant Apple, Inc. ("Apple") before filing the Third Amended 4 Complaint contemplated by the Court's order of April 7, 2010. Pursuant to Local 5 Rule 7-12, Plaintiffs, through counsel, have requested that Apple enter into a 6 stipulation providing for the relief requested herein. Apple declined to so stipulate. 7

The Second Amended Complaint ("SAC") alleged in part that Apple

8 committed a fraudulent business practice in violation of California's Unfair 9 Competition Law ("UCL") by marketing PowerBook G4 computers with defective 10 memory slots. The Court, in its April 7 order, dismissed this claim with leave to 11 replead, citing the "reasonable possibility that Plaintiffs could provide additional 12 factual support." Order at 15. The Court also dismissed plaintiffs' unjust 13 enrichment claim with leave to replead. Id. 14

In revising the complaint, Plaintiffs are guided by the Court's recent decision

15 in another consumer class action decided after briefing was completed in the instant 16 case, Tietsworth v. Sears, Roebuck & Co., No. 5:09-CV-00288 JF (HRL) (Mar. 31, 17 2010). A crucial issue in both decisions was whether the complaint adequately 18 alleged a duty to disclose material facts concerning the product's defects. In 19 Tietsworth, the Court held that a duty to disclose arises "when the defendant had 20 exclusive knowledge of material facts not know to the plaintiff," or "when the 21 defendant actively conceals a material fact from the plaintiff." Tietsworth, at 10 22 (citations omitted). 23

In this action, the SAC alleged with as much specificity as practicable Apple's

24 knowledge and deliberate concealment of the memory slot defect. Among other 25 things, the SAC alleged that Apple knew of the defect due to pre-sale testing, a 26 limited warranty program that applied to only certain PowerBooks, numerous 27 complaints that consumers posted on Apple's web site, and Apple's deletion from its
CALDWELL LESLIE & PROCTOR

28 web site of a discussion thread containing over 350 posts about the PowerBook -1PLAINTIFFS' MOTION FOR ADMINISTRATIVE RELIEF CASE NO. C-08-04969 JF

1 memory slot defect. SAC ¶¶ 31-33, 44-48, 86. As Plaintiffs understand it, the Court 2 found these allegations somewhat persuasive, but insufficient to establish corporate 3 knowledge of the memory slot defect. See Order at 13. In Tietsworth, the Court 4 gave great weight to allegations that the defendants jointly developed a protocol for 5 responding to customer complaints about the alleged defect, and agreed to share the 6 cost of replacing the defective parts. The Court also relied on an allegation that a 7 Sears engineer was aware of, and specifically commented on, the alleged defect. See 8 Tietsworth, at 12. 9

Without conceding that the SAC was inadequate, Plaintiffs believe narrowly

10 targeted discovery will enable them to frame sufficient allegations that Apple knew 11 of the memory slot defect and intentionally concealed it, which will survive Apple's 12 inevitable motion to dismiss. Indeed, such discovery may be the only means by 13 which to adduce additional allegations in circumstances where the "defendant had 14 exclusive knowledge of material facts not known to the plaintiff." See id. at 10. 15

Accordingly, to satisfy the Court's requirements for the Third Amended

16 Complaint, Plaintiffs respectfully request (i) an opportunity to serve not more than 17 five document requests on Apple; (ii) a one-day deposition of an Apple designee 18 pursuant to Federal Rule of Civil Procedure 30(b)(6), limited to Apple's knowledge 19 of the alleged defect, the sources of its knowledge, its responses to information and 20 complaints received about the defect, and its concealment thereof; and (iii) sufficient 21 time to amend the complaint based on such discovery. 22 23 24 25 26 27
CALDWELL LESLIE & PROCTOR

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CALDWELL LESLIE & PROCTOR

DATED: April 22, 2010

Respectfully submitted, CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER ERIC S. PETTIT

By

/S/

ERIC S. PETTIT Attorneys for Plaintiffs and all others similarly situated MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ P.C. Jeffrey I. Carton (pro hac vice) Jerome Noll (pro hac vice) Michael A. Berg (pro hac vice) 1311 Mamaroneck Avenue White Plains, New York 10605 [phone] Attorneys for Plaintiffs

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