Hibnick v. Google Inc.

Filing 19

MOTION for Entry of [proposed] pretrial Order No. 1; Memorandum of Points and Authorities in Support of Motion for Entry of Pretrial Order No. 1 filed by Eva Hibnick, Andranik Souvalian. Motion Hearing set for 7/12/2010 10:00 AM in Courtroom 8, 4th Floor, San Jose. (Attachments: # 1 [Proposed] Pretrial Order No. 1)(Ram, Michael) (Filed on 5/7/2010) Modified on 5/10/2010,(counsel selected incorrect event.) (cv, COURT STAFF).

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Gary E. Mason (pro hac vice) [e-mail] Donna F. Solen (pro hac vice) [e-mail] MASON LLP 1625 Massachusetts Ave., NW Washington, DC 20036 Telephone: [phone] Facsimile: [phone] Michael F. Ram (SBN 104805) [e-mail] RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] [Additional Counsel listed on signature page] Attorneys for Plaintiff and the Proposed Class THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EVA HIBNICK and ANDRANIK SOUVALIAN, individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., Defendant. Case No.: 10-CV-00672-JW NOTICE OF MOTION AND PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PRETRIAL ORDER NO. 1 Date: Time: Place: July 12, 2010 10:00am Courtroom 8, 4th Floor [Hon. James Ware]

Original Complaint Filed: 02/17/10 /// /// /// /// ­1­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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PLEASE TAKE NOTICE THAT on July 12, 2010 at 10:00am, or as soon thereafter as the matter may be heard in the United States District Court for the Northern District of California, 280 South 1st Street, San Jose, CA 95113, Plaintiffs will and hereby do move this Court for entry of Proposed Pretrial Order No. 1 consolidating the above-captioned case with the related Feldman v. Google, Inc., 10-cv-01433 (N.D. Cal. April 5, 2010) action, appointing Mr. Gary E. Mason of Mason LLP as Lead Counsel, Michael Ram of Ram & Olson LLP as Liaison Counsel, and establishing a Steering Committee. This motion is made on the grounds that (1) consolidation pursuant to Fed. R. Civ. P. 42 will greatly promote the efficient adjudication of the instant matter and the Feldman case, which involve identical issues of fact and law; (2) Mr. Gary E. Mason and Mr. Michael Ram are well-qualified to serve as Lead Counsel and Liaison Counsel respectively pursuant to Fed. R. Civ. P. 23(g)(3); and (3) the proposed Steering Committee will assist in the representation of Plaintiffs and the Class. All affected parties' counsel, including those representing Plaintiffs in the instant action and the Feldman case and Defendant, have consented to this motion. This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, and the Class Action Complaints on file in the instant case and Feldman. Plaintiffs respectfully request that the Court grant their motion and enter Proposed Pretrial Order No. 1. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs respectfully move for entry of proposed Pretrial Order No. 1 consolidating the above-captioned case with the related Feldman v. Google, Inc., 10-cv-01433 (N.D. Cal. April 5, 2010) action for pretrial purposes, appointing Mr. Gary E. Mason of Mason LLP as Lead Counsel, Mr. Michael Ram of Ram & Olson LLP as Liaison Counsel, and establishing a Steering Committee. As explained herein, consolidation, the appointment of Mr. Mason and Mr. Ram, and the creation of a Steering Committee will fairly and efficiently advance this litigation in an organized manner that is in the best interests of the Plaintiffs, the putative class members, Defendant Google Inc. ("Defendant" or "Google"), and this Court. Notably, Defendant has provided its consent to this motion and all of Plaintiffs' counsel have agreed to the organizational structure set forth in Proposed ­2­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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Pretrial Order No. 1. Plaintiffs' motion should thus be granted. I. STATEMENT OF RELEVANT FACTS Plaintiffs in both the instant case and Feldman v. Google Inc., 10-cv-01433 (N.D. Cal. April 5, 2010) have recently filed class action lawsuits in this Court against Google on behalf of a nationwide class of individuals whose privacy rights were allegedly violated by the actions of Google through its Buzz program. In both actions, Plaintiffs allege that Google automatically added the Buzz service to the accounts of all users of Google's "Gmail" service, thereby making private user information publicly available without the users' knowledge or authorization. Both cases allege that in launching Google Buzz, Google failed to provide its users with clear information detailing the nature of the new service, including the automatic application of the Buzz program and its provisions for default disclosure of personal information. Plaintiffs in each action allege that Google's public disclosure of private user information violates users' rights under the Federal Wiretap Act, the Federal Computer Fraud and Abuse Act, the Federal Stored Communications Act, and California common law. As a result of these alleged breaches, Plaintiffs in both actions seek identical forms of relief. II. ARGUMENT A. Consolidation for Pretrial Purposes Promotes the Efficient Litigation of Common Issues.

Fed. R. Civ. P. 42(a)(2) provides that the Court may consolidate actions that involve a common question of law or fact. Consolidation is also appropriate under Fed. R. Civ. P. 42(a)(3) to avoid unnecessary cost or delay. Here, as shown above, both the instant action and the related Feldman case involve identical core questions of law and fact concerning Google's public disclosure of personal user information through its Buzz application and its consequent effect on the privacy rights of its users. Given the plain factual and legal similarity of these two putative class actions, separate adjudication will certainly involve duplication in motion practice and pre-trial procedures and will thus result in unnecessary costs and inconvenience affecting Plaintiffs, Defendant and the Court. In order to avoid such inefficiency, Plaintiffs' counsel in both actions and Defendant agree that this case and Feldman should be consolidated for pretrial purposes. ­3­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Mr. Mason is Well-Qualified to Serve as Lead Counsel in the Consolidated Action. B. The Proposed Lead Class Counsel, Liaison Counsel, and Steering Committee will Effectively, Fairly, and Adequately Represent the Interests of all Class Members in this Litigation.

As set forth in Fed. R. Civ. P. 23(g)(3), "[t]he court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action." In appointing class counsel, the court must consider the following factors: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action; (3) counsel's knowledge of the applicable law; and (4) the resources counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A). Each of these factors supports the appointment of Gary E. Mason as Lead Counsel and Michael Ram as Liaison Counsel in these action.

Mr. Mason is a highly-skilled and experienced class action attorney who is more than capable of litigating this action on behalf of a nationwide class. At even this preliminary stage of litigation, Mr. Mason has already expended significant time and effort researching, investigating, and identifying the claims belonging to Plaintiffs and putative class members. Mr. Mason has invested the time to understand precisely how the Google Buzz service was introduced by Defendant, how it works, and how it has affected Gmail users. Mr. Mason has also coordinated counsel in the three related federal complaints filed to date. Moreover, as detailed in his firm resume, Mr. Mason has extensive experience-- gained over the course of twenty years-- representing plaintiffs in class actions. See Exhibit 1 to Declaration of Gary E. Mason in Support of Plaintiffs' Unopposed Motion for Entry of Pretrial Order No. 1. He has successfully litigated a variety of complex class actions, including cases involving privacy and civil rights issues similar to those present in the instant litigation, in federal courts throughout the country. Id. Just last year, Mr. Mason, as court-appointed co-lead counsel, settled a nationwide class action in the U.S. District Court of the District Columbia on behalf of veterans whose privacy rights had been compromised by the theft of an external hard drive containing the names, dates of ­4­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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birth, and social security numbers of some 26.5 million veterans and their spouses. In re: Dept. of Veterans Affairs (VA) Data Theft Litig., MDL 1796 (D. D.C.). There, Plaintiffs alleged violations of the Privacy Act, the Administrative Procedure Act, and the Fourth and Fifth Amendments. The settlement resulted in the creation of a $20 million fund for the affected veterans and a cy pres award for two non-profit organizations. Mr. Mason is also involved with the proposed $1.25 billion nationwide settlement of a class action brought on behalf of tens of thousands of black farmers who were denied equal access to U.S. Agriculture Department loan programs. In re Black Farmers Discrimination Litig., 1:08- MC- 0051 (D. D.C.). Mr. Mason has served as co-counsel in a number of other complex class actions that have been resolved in federal courts. See, e.g., Ersler, et. al v. Toshiba America et. al, 07-civ- 2304 (D.N.J. 2009) (settlement of claims arising from allegedly defective television lamps); In re General Motors Corp. Speedometer Prods. Liability Litig., MDL 1896 (W.D. Wash. 2008) (national settlement of claims arising from allegedly defective vehicles); Turner v. General Electric Company, No. 2:05CV-186 (M.D. Fl. 2007) (settlement of claims arising from allegedly defective refrigerators); Galanti v. Goodyear Tire & Rubber Co., No. 03-209 (D.N.J. 2003) (creation of $330 million settlement fund for payment of claims arising from allegedly defective radiant heating systems); Nnadili, et al. v. Chevron U.S.A., No. 02-cv-1620 (D.D.C. 2008) ($6.2 million settlement for owners and residents of 200 properties contaminated with petroleum products); In re Synthetic Stucco (EIFS) Products Liability Litigation, MDL No. 1132 (E.D.N.C.) (national class action involving defective synthetic siding); In re Swanson Creek Oil Spill Litigation, No. 00-1429 (D. Md. 2002) ($2.25 million settlement fund to resolve litigation arising from largest oil spill in history of State of Maryland). Finally, Mr. Mason's law firm, Mason LLP, which consists of four attorneys, each of whom has experience litigating class actions on behalf of plaintiffs, and a full staff, has more than sufficient resources to litigate this case. 2. Mr. Ram is Well-Qualified to Serve as Liaison Counsel in the Consolidated Action

As recognized by Plaintiffs' counsel, Mr. Ram is similarly well-qualified and adequate to ­5­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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serve as Liaison Counsel in this litigation. As a partner at the law firm of Ram & Olson LLP, Mr. Ram has substantial experience litigating a variety of complex class action cases throughout the nation, and notably, in this forum. See, e.g., Keilholtz et al v. Superior Fireplace Co., 4:08-cv00836-CW (N.D. Cal.) (currently serving as co-counsel for the national certified class of half a million owners of allegedly dangerous glass-pane gas fireplaces); Chamberlan v. Ford Motor Co., No. 03-2628 (N.D. Cal.) (settlement of nationwide class claims alleging defective plastic manifolds); Falk v. G.M.C., No. 1C07-1731 (N.D. Cal.) (settlement of class action involving allegations of defective speedometers). Mr. Ram's experience is further and more fully enumerated in the Ram & Olson LLP firm resume. See Exhibit 1 to Declaration of Michael F. Ram in Support of Plaintiffs' Unopposed Motion for Entry of Pretrial Order No. 1. Importantly, Mr. Ram and his firm are based in California and are thus able to quickly and conveniently communicate with this Court as necessary. Like Mr. Mason, Mr. Ram has spent a significant amount of time investigating and identifying the allegations and legal claims asserted in this litigation. He is able and willing to commit the resources necessary to represent the Class. 3. The Steering Committee Will Further Advance the Efficiency and Fairness of this Litigation.

Finally, Plaintiffs request that the Court approve the creation of the proposed Steering Committee, which will provide support to Lead and Liaison Counsel and assist in the fair and efficient litigation of this case. The Steering Committee is comprised of the attorneys who represent each of the named Plaintiffs in the cases to be consolidated under proposed Pretrial Order No. 1. Each of the members of the proposed Steering Committee has assisted with the investigation of the claims belonging to Plaintiffs and Class Members, and is closely familiar with Google's alleged misconduct. Counsel on the Steering Committee also have substantial experience with federal class action litigation. The firm resume of each Steering Committee member is attached hereto as Exhibits A through D.

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NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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III.

CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant entry of Pretrial

Order No. 1. DATED: May 6, 2010 RAM & OLSON LLP By: /s/ Michael F. Ram __ Michael F. Ram (SBN 104805) 555 Montgomery Street, Suite 820 San Francisco, California 94111 Phone: [phone] Fax: [phone] Email: [e-mail] Gary E. Mason (pro hac vice) Donna F. Solen (pro hac vice) MASON LLP 1625 Massachusetts Ave., NW Ste. 605 Washington, DC 20036 Phone: [phone] Fax: [phone] Email: [e-mail] Peter N. Wasylyk (pro hac vice) LAW OFFICES OF PETER N. WASYLYK 1307 Chalkstone Avenue Providence, Rhode Island 02908 Phone: [phone] Fax: [phone] Email: [e-mail] Andrew S. Kierstead (SBN 132105) LAW OFFICE OF ANDREW KIERSTEAD 1001 SW 5th Avenue, Suite 1100 Portland, Oregon 97204 Phone: [phone] Fax: [phone] Email: [e-mail] Michael D. Braun (SBN 167416) Braun Law Group, P.C. 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Phone: [phone] Fax: [phone] Email: [e-mail] /// /// ­7­
NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672

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Of Counsel: William Rubenstein 1545 Massachusetts Avenue Cambridge, MA 02138 Phone: [phone] Attorneys for Plaintiffs and the Proposed Class in the above-captioned case Jonathan Shub (SBN 237708) SHUB LAW LLC 1818 Market Street, 13th Floor Philadelphia, PA 19102 Phone: [phone] Fax: [phone] Email: [e-mail] Christopher A. Seeger SEEGER WEISS LLP One William Street New York, NY 10004 Phone: [phone] Fax: [phone] Email: [e-mail] Lawrence Feldman (pro hac vice) LAWRENCE E. FELDMAN & ASSOCIATES 423 Tulpehocken Avenue Elkins Park, PA 19027 Phone: [phone] Fax: [phone] Email: [e-mail] Eric Freed (SBN 162546) FREED & WEISS LLC 111 West Washington Street, Suite 1311 Chicago, IL 60602 Phone: [phone] Fax: [phone] Email: [e-mail] Howard G. Silverman KANE & SILVERMAN, P.C. 2401 Pennsylvania Ave., Suite 1C-44 Philadelphia, PA 19130 Phone: [phone] Fax: [phone] Email: [e-mail] Attorneys for Plaintiffs and the Proposed Class in the Feldman action

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NOTICE OF MOTION; MPA IN SUPPORT OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF PROPOSED PRETRIAL ORDER NO. 1 10-cv-00672