Lalo v. Apple, Inc et al

Filing 47

EXHIBITS re 46 Brief i/s/o iPhone Plaintiffs' Group Leadership Structure Recommendation filed byJonathan Lalo. (Attachments: # 1 Exhibit Exh 1(A-1) KamberLaw Firm Resume, # 2 Exhibit Exh 1(A-2) Lockridge Grindal Nauen Resume, # 3 Exhibit Exh B Proposed Order, # 4 Exhibit Exh 2 W. Audet Declaration, # 5 Exhibit Exh 3 J. Wilson Declaration)(Related document(s) 46 ) (Stampley, David) (Filed on 3/26/2011)

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Lalo v. Apple, Inc et al Doc. 47 EXHIBIT 1 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 SCOTT A. KAMBER (pro hac vice application pending) DAVID A. STAMPLEY (pro hac vice application pending) KAMBERLAW, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 202-6364 AVI KREITENBERG KAMBERLAW, LLP 1180 South Beverly Drive, Suite 601 Los Angeles, CA 90035 Telephone: (310) 400-1050 Facsimile: (310) 400-1056 ATTORNEYS FOR PLAINTIFF JONATHAN LALO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE IPHONE APPLICATION LITIGATION Case No. 10-cv-5878 LHK (PSG) (Lead) 10-cv-5881-LHK 11-cv-0407-LHK 11-cv-0700-LHK The Honorable Lucy H. Koh SCOTT A. KAMBER DECLARATION IN SUPPORT OF RECOMMENDATION OF LEADERSHIP STRUCTURE OF PLAINTIFFS' COUNSEL I, Scott A. Kamber, declare as follows: 1. I am an attorney admitted to practice in the State of New York and am the managing partner of KamberLaw, LLC ("KamberLaw"), representing Plaintiff Jonathan Lalo and the putative class in the above-captioned matter. I am over the age of 18, have personal knowledge of the matters stated herein except as otherwise noted and, if called upon to do so, would competently testify to the statements made herein and would attest that any exhibits attached hereto are true and correct copies of the documents they purport to be. Declaration of Scott A. Kamber 1 Case No. 10-cv-5878 (LHK) 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 2. As discussed further below, KamberLaw has an unmatched reputation and record for advancing the privacy and information security rights of consumers who face an evolving world of networked devices operated by expanding and nontransparent networks of business interests. We understand consumers concerns, class actions, the technology landscape, and the information-driven business entities involved--which include manufacturers, contentproviders, application developers, advertisers, and even auctioneers of the opportunity to advertise to particular consumers. We understand how people, business values, and technologies are often aligned and in conflict at the same time, and we devote substantial resources to the factual, legal, and forensic investigations required to understand how to prosecute these cases vigorously and resolve them in way that promotes the fair and efficient administration of justice. 3. Also detailed below are the efforts that I have personally expended to advance the Lalo Action and the others consolidated therewith, and to foster a consensus-building effort around a plan for self-organized leadership. I. KamberLaw's Unparalleled Internet Privacy and Technology Expertise 4. One member of the bench of this District recently observed: , "The attorneys of KamberLaw have made a showing that they possess experience and expertise in the areas of consumer privacy and technology matters and have professionally represented the interests of the Class in this matter." The KamberLaw Firm Resume bears out these characteristics, listing some of the technical matters we have handled and highlighting the qualifications of our counsel, is attached hereto as Exhibit A-1. A. 5. Scott A. Kamber This year, I was honored to be the only private plaintiffs' lawyer from the United States to be invited to address the International Conference of Data Protection and Privacy Commissioners and address the world's leading Internet business leaders, policymakers, privacy advocates, and academics. 6. My experience litigating Internet privacy actions began in the late-1990s. I served as class counsel in In Re Geocities, a case alleging a conflict between a website's Declaration of Scott A. Kamber 1 Case No. 10-cv-5878 (LHK) 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 privacy policy and its use of web protocols for sharing consumer information with third parties, and which was resolved through what is generally credited as the first settlement of such a case. 7. Since then, I have served as lead counsel and have been responsible for litigating and successfully resolving a number of noted Internet privacy and technology class actions. These settlements with a number of industry leaders, including Facebook: the Beacon case, involving disclosure to other users of Facebook users' purchases on third-party websites; Sony Entertainment (S.D.N.Y. 2006) and ATI (N.D. Cal. 2009), "root-kit" cases, alleging harm and security compromise to computers arising from digital rights management (DRM) software embedded in music CDs; Netflix (N.D. Cal. 2010), alleging privacy violations arising from Netflix's release of supposedly anonymized data in a million-dollar contest where contestants designed improvements to the site's recommendation engine. Other defendants have included Microsoft, Google, and Yahoo! 8. Currently pending cases including matters involving mobile devices and allegations of intrusions by advertisers; "Flash cookie" cases, involving allegations of advertisers' using consumers' of Adobe Flash to create "pseudo-cookies" that bypass privacy and security controls in consumers' browsers; ISP wiretapping cases, involving allegations of ISPs installation of third-party advertisers' consumer tracking and profiling network devices in the heart of the ISP infrastructure; and social network cases involving unauthorized uses of consumers' email address books to conduct "viral" campaigns to recruit new members. Many of these cases includ legal claims and concepts of first impression. 9. KamberLaw's unique approach to litigation contributes to our consistent pattern of reaching agreements with defendants to terminate the complained-of conduct and, in addition, provide meaningful benefits to the class. 10. Timeliness is an important objective in our settlement efforts. I base this on the likelihood of continuing or even escalating harm to the class, especially given the rapid pace of technology changes. To meet this challenge, I have applied creative litigation and dispute Declaration of Scott A. Kamber 2 Case No. 10-cv-5878 (LHK) 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 resolution techniques, including a commitment to creative ADR processes that include a substantial element of the parties educating each other to facilitate resolution. An key factor in our being able to approach settlement sooner rather than later is the intelligence we gain through pre-complaint and continuing investigation, discussed in paragraphs 17 and 18, below. B. 11. Other KamberLaw Attorneys; Approaches to Case Development Another of the firm's partners, David A. Stampley, led New York and multistate attorney general enforcement actions as an Assistant Attorney General in New York. These included In the Matter of DoubleClick, a ten-state coalition involving notice and choice standards for third-party data collection; In the Matter of Netscape, the Smartdownload spyware case; In the Matter of Ziff Davis Media, a seminal security breach matter in which monetary compensation was paid to consumers' whose online credit card payments for magazine subscriptions were exposed; In the Matter of Eli Lilly, the email breach involving application programming practices. 12. As a privacy officer at a Fortune 1000 technology company, Mr. Stampley participated as an active member of development teams for multi-party, Internet-based applications involving the collection and transfer of sensitive consumer information. He participated in the development of online and electronic interchange systems designed to help business maintain compliance with the Gramm-Leach-Bliley Act, the CAN-SPAM Act, California's S.B. 1 security breach notice law, the Drivers License Privacy Protection Act, and the Canadian Personal Information Protection and Electronic Documents Act. 13. Mr. Stampley participated as an Invited Expert in authoring the Platform for Privacy Preferences (P3P) specification issued by the Worldwide Web Consortium (W3C), a tool for automating the reading of website privacy policies that has been a key component of the privacy controls in Windows Internet Explorer for almost nine years. He has written articles addressed to an audience of information security professionals, explaining the nexus of information security, privacy, and compliance requirements. He was quoted and cited in academic papers as well as by Ann Cavoukian, Ph.D., Information And Privacy Commissioner of Ontario in 20/20: Access & Privacy Excellence... 20 Years In The Making (2007). Mr. Declaration of Scott A. Kamber 3 Case No. 10-cv-5878 (LHK) 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 Stampley maintains strong ties to the privacy advocacy and information security communities both in the public and private sectors. 14. In addition to complex litigation experience, all of KamberLaw's attorneys bring valuable educational, business, and legal experience to bear in the firm's cases, ranging from government prosecution, mediation of consumer complaints of online fraud, consumer and workers' rights in offline contexts. KamberLaw attorneys recognize the importance of fostering and maintaining strong ties to the privacy advocacy, academic, and technology communities both in the public and private sectors. 15. The KamberLaw attorneys have also advised clients on managing, mitigating, and remediating compliance risk associated with information security and privacy practices in the context of e-commerce businesses and major corporate information technology programs. They have also developed Internet applications, performed information security audits and have been responsible for defining and reviewing the criteria and terms of engagement for application code audit and information security audit engagements and been invited to speak and quoted by privacy commissioners and other senior privacy officials in the United States and abroad. II. KamberLaw's Efforts in Advancing the iPhone Application Litigation 16. KamberLaw's efforts in these cases demonstrate the appropriateness of its appointment to a lead counsel role under Rule 23. 17. In preparing and filing the first-filed action, KamberLaw conducted significant legal and factual research, including research into defenses and an analysis of the business relationships and conditions that might affect each defendant's stake in the matter and incentive to seek resolution. KamberLaw also conferred with necessary experts in investigating the claims made in the Action. Disclosure of the identity of experts and their specific work protocols here, in a filing reviewable by defendants would, in my judgment, unnecessarily compromise our efforts. 18. KamberLaw's preparation efforts included expert forensic analysis of devices, including user-facing functions, user communication functions, capability of providing thirdDeclaration of Scott A. Kamber 4 Case No. 10-cv-5878 (LHK) 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 party access to device identifier and geolocation data, and user privacy controls. In addition, we conducted tests that included analysis of active communications flows from mobile devices in the context of various applications and device configurations. 19. In addition, KamberLaw has invested significant resources ideveloping the expert testimony necessary to validate, from an economics perspective, and quantify the economic value--to consumers-- of their personal information at issue in these cases. Based on these preliminary and ongoing investigative efforts, KamberLaw has acquired valuable information in the nature of confirmatory discovery that, as in all our cases, positions us to engage in assertive litigation with an economy of discovery effort or, on the other hand, wellinformed mediation. 20. I personally contacted plaintiffs' counsel in each of the three subsequently filed actions shortly after their respective filing and service of their complaints in order to informally coordinate efforts prior to the determination of leadership. To that end, I personally coordinated communications with defendants, including discussions regarding extensions of time to respond to the complaints. These efforts served the efficient administration of justice by not requiring responses from any defendant to the outstanding four complaints. 21. My firm also suggested to other counsel and subsequently prepared the initial draft of the proposed consolidation and case management order that was eventually entered by the Court on March 15, 2011. KamberLaw obtained all plaintiffs counsels' consent to the language and then worked to shepherd the documents through a review by all defendants that had been served in any of the three actions. My firm was able to accomplish this without incurring duplication of effort by the different plaintiffs' firms. We believe the entry of this order established the operative timeframe for the progression of this matter through the pleadings phase and insured the timely recommendation of interim class counsel by requiring all Plaintiffs' counsel to seek to self-organize and put forward a single interim class counsel recommendation. 22. In the wake of the Courts' entry of the March 15, 2011 Order, I have engaged in extensive discussions with the proposed members of the Executive Committee as to threshold Declaration of Scott A. Kamber 5 Case No. 10-cv-5878 (LHK) 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 issues regarding the consolidated amended complaint so that if the Court follows the recommendation submitted herewith, the plaintiffs will be able to comply with the dates for filing ordered by the Court. Much of our work with experts for this matter as well as our internal firm forensic efforts will greatly enhance our ability to complete the drafting of the consolidated complaint prior to the court-ordered due date. Each of the firms that support KamberLaw's appointment has acceded voluntarily to our efforts to coordinate prior to appointment of lead so that we can limit duplication of efforts. In my experience, plaintiffs' firms all too often engage in wasteful and duplicative expenditures of time and money in order to impress the Court with the efforts that have been undertaken prior to appointment of leadership. Here, I believe that my firm has reduced such duplication, at least among the iPhone Plaintiffs' Counsel Group. 23. If appointed by this Court as lead counsel, KamberLaw will continue to commit the resources necessary to advance this litigation and obtain relief for the putative class and assign work equitably among all plaintiffs counsel and in a manner that maximizes litigation advantages at the lowest possible cost. 24. Technology lawsuits have a different focus from other major class action litigation. Whereas in antitrust, securities, and mass tort cases, the principal objective is monetary relief, the thrust of a technology lawsuit is to achieve a meaningful solution to the Defendant's offending business practice. KamberLaw recognizes that protecting the putative class in this case requires a mechanism through which it can be assured that Apple has ceased improperly collecting the class members' personal information, and that such conduct, to the extent already cured, will not resume in the future. KamberLaw intends to work with the members of the proposed Executive Committee to formulate a litigation strategy aimed at bringing about the necessary revisions to Apple's business practices. III. Scott A. Kamber's Efforts to Build Consensus for Interim Class Counsel in Compliance with Court Order 25. In accordance with this Court's March 15, 2011 order (Docket No. 36), I expended significant effort seeking to build a consensus among plaintiffs' counsel for a plan of Declaration of Scott A. Kamber 6 Case No. 10-cv-5878 (LHK) 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 Interim Class Counsel self-organization under FRCP 23(g) that plaintiffs' counsel could recommend to the Court. 26. Upon entry of the March 15, 2011 Order, I personally spoke to Plaintiffs' Counsel in each of the three subsequently filed cases in order to begin working toward a consensus for a leadership structure. These calls led me to believe that each of the firms wanted to serve as co-lead counsel, along with my firm. Recognizing that more work would be necessary to self-organize the case in a manner that made sense, I requested that plaintiffs' counsel representing each of the four filed cases participate in a conference call to seek a consensus on leadership. 27. On March 22, 2011, the above-referenced call was held. The conference call lasted for approximately one hour. At least one firm from each of the consolidated actions participated. Initially, each firm wanted to serve as co-lead counsel with my firm. Specifically David Parisi of Parisi & Havens, LLP, William Audet of Audet & Partners, LLP, and Jeff Westerman of Milberg each made an argument of why their firms were the appropriate firm to serve as co-lead counsel with my firm. Each of the participating counsel seemed to agree that, based upon its known leadership and expertise in Internet privacy and its efforts thus far in this, that KamberLaw should serve as lead. The focus of the discussion was whether there should be a co-lead and, if so, which firm it should be.. 28. Over the course of the discussion, it was suggested by Mr. Parisi that if everyone wanted to be co-lead we would never be able to reach a recommendation, so it was suggested that I should serve as sole lead counsel and one lawyer from each of the other three cases should serve on an executive committee. Eventually, almost everyone voiced agreement to that proposal, accepting that it would benefit the Class by providing the most effective mechanism for decision-making while making the most efficient use of firms' resources. 29. The group's consensus was to add Robert K. Shelquist from the law firm of Lockridge Grindal Nauen P.L.L.P. and Jeremy R. Wilson of Wilson Trosclair & Lovins to the executive committee. A copy of the firm and personal CV of Mr. Shelquist in support of this request are attached hereto as Exhibit A-2. A copy of the firm resume of Wilson Trosclair & Declaration of Scott A. Kamber 7 Case No. 10-cv-5878 (LHK) 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 Lovins is attached hereto as Exhibit A-3. 30. Jeff Westerman of Milberg was the only dissent from the Parisi proposal. Mr. Westerman took the position that while he was willing to work together with everyone on the case, he was unwilling to agree to any structure that did not include Milberg as the co-lead counsel. In an effort to resolve this issue with a unanimous recommendation to the Court and because the majority engaged in a reasonable and fair processing in arriving at a structure, I spoke to with Mr. Westerman no less than a half dozen times in an effort to break the impasse. 31. In summary, three of four firms have agreed to the recommendation proposed here, believing it to be a fair and equitable structure and consistent with the Court's Order. Therefore seven of the nine Plaintiffs' firms representing three of the four cases and 15 of 16 consolidated Plaintiffs agree to the structure here proposed. The proponents, including myself, remain ready, willing and able to work with all counsel in these actions and carry out the Court's instructions regarding leadership and administration of the action. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on March 25, 2011 at Essex County, New Jersey. SCOTT A. KAMBER Declaration of Scott A. Kamber 8 Case No. 10-cv-5878 (LHK)

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