Lalo v. Apple, Inc et al

Filing 54

Statement JOINT STATUS CONFERENCE STATEMENT by Apple, Inc. (Charlson, Michael) (Filed on 3/30/2011)

Lalo v. Apple, Inc et al

Doc. 54

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Michael L. Charlson (Bar No. 122125) Maren J. Clouse (Bar No. 228726) HOGAN LOVELLS US LLP 525 University Avenue, 4th Floor Palo Alto, California 94301 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Christopher Wolf (Admitted Pro Hac Vice) HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: [phone] Facsimile: [phone] [e-mail] Clayton C. James (Admitted Pro Hac Vice) HOGAN LOVELLS US LLP One Tabor Center, Suite 1500 1200 Seventeenth Street Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant APPLE INC., a California corporation (Additional Counsel On Signature Page) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re iPhone Application Litigation Case No. 10-cv-5878 LHK (PSG) JOINT STATUS CONFERENCE STATEMENT Date: April 6, 2011 Time: 2:00 p.m Honorable Lucy H. Koh

JOINT STATUS CONFERENCE STATEMENT Case No. CV-10-5878 LHK (PSG)
Dockets.Justia.com

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For the status conference set for April 6, 2011, Plaintiffs and Defendants1 (collectively the "Parties") hereby submit this Joint Case Management Statement pursuant to this Court's Order dated March 15, 2011 (the "March 15 Order"). Relevant Procedural Background With its March 15, 2011 Order, the Court consolidated four actions against Apple and 17 other defendants, all of which have been served as of the date of filing of this submission, as well as Doe defendants. The March 15 Order required Plaintiffs to use their "best efforts to self-organize and recommend to the Court counsel to serve as Interim Class Counsel" and to file such recommendation within ten days of entry of the Order (i.e. by March 25, 2011). Pursuant to the Order, any plaintiff could oppose such recommendation by filing an opposition within ten days of consolidation of their case or the filing of said recommendation, whichever is later. Plaintiffs' counsel represent that on March 22, 2011, Plaintiffs' counsel held a conference call to fulfill the Order of the Court to "use best efforts to self-organize." All but counsel for Plaintiff Chiu agreed to a leadership structure to recommend to the Court. On March 25, 2011, the iPhone Plaintiffs' Group and Plaintiff Chiu each filed papers purporting to satisfy the Courts' Order to self-organize and recommend Interim Class Counsel. Dkt. Nos. 45 & 46. As of this writing, the Parties are awaiting Court action to determine who will be Interim Class Counsel and understand that this matter may be decided by the Court after the scheduled April 6, 2011 status conference. At present, there is no single operative complaint in these consolidated actions. The March 15 Order further provided that within 21 days of appointment by the Court, Interim Class Counsel shall file an amended pleading and set forth a briefing schedule for Defendants' motions to dismiss, should any be filed. "Defendants" refers to all named defendants to any of the consolidated actions who have appeared to date: Apple Inc.; Backflip Studios; Dictionary.com/IAC Interactive Corp., LLC; Flurry, Inc.; GOGII, Inc.; Groupon, Inc.; Medialets; New York Times Co.; Pandora Media, Inc.; The Weather Channel; WebMD Health Services Group, Inc.; Yelp!, Inc. 1
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Proposed Schedule In accordance with the Court's March 15, 2011 Order, the Parties held a telephonic meeting of counsel on March 28, 2011 to confer concerning a schedule for the Initial Case Management Conference and related matters. A representative of each of the two competing recommendations for Interim Class Counsel, Scott A. Kamber and Peter Seidman, participated along with Michael L. Charlson on behalf of Defendant Apple, Inc. but also representing the views of the other Defendants. The Parties agreed that it is premature to schedule either the Rule 26 disclosures or the Initial Case Management Conference contemplated by Civil Local Rule 16-10 (the "Initial CMC") because, in advance of both the Court's appointment of Interim Class Counsel and the subsequent filing of a consolidated complaint, there is uncertainty regarding: (i) which firm or firms will represent the alleged Class as Interim Class Counsel; (ii) the claims Interim Class Counsel will ultimately assert on behalf of the alleged Class in the consolidated complaint; and (iii) the parties against whom those claims will be asserted. Accordingly, the Parties agreed that the Rule 26 Disclosures and Initial CMC should be deferred at least until after the filing of a consolidated amended complaint. However, the Parties disagreed about how soon after the filing of the consolidated amended complaint the Rule 26 disclosures and Initial CMC should occur. Their respective positions are set forth below. Plaintiffs' Position: Plaintiffs would agreed to defer the Rule 26 disclosures and Initial CMC until after a decision on the motion to dismiss provided Apple and the other Defendants agreed to immediately cease the privacy invasions alleged in the consolidated complaints. In the absence of such agreement this case should be expedited so that the offending practices ­ which affect millions of people every day ­ are stopped as soon as possible. The Federal Rules of Civil Procedure neither necessitate nor encourage deferring case management and discovery obligations until after a motion to dismiss, nor is staying the litiga2
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tion process pending a possible motion to dismiss the accepted or ordinary practice in this District. Therefore, Plaintiffs recommend the Court adopt the following schedule: 1. The meet and confer obligations under Rule 26(f) shall be satisfied no later than

14 days after the filing of the consolidated complaint; 2. Mandatory initial disclosures shall be made within 21 days of filing the consoli-

dated complaint; and 3. The Initial CMC should be scheduled before this Court within 30 days of ex-

changing mandatory initial disclosures. Defendants' Position: Defendants appreciate Plaintiffs' agreement that Rule 26 disclosures and the Initial CMC should be deferred until after their consolidated complaint is filed given the current uncertainty concerning the claims Plaintiffs intend to pursue and the persons against whom Plaintiffs intend to pursue them. Defendants suggest that under the circumstances here, however, defining the issues more clearly before initial disclosures is appropriate to avoid unnecessary burden and expense. See Manual for Complex Litigation 4th § 11.31 ("The sine qua non of managing complex litigation is defining the issues in the litigation."). In this regard, Defendants note their denial that there is any ongoing invasion of privacy whatsoever. Moreover, although it is currently uncertain what legal theories Plaintiffs may pursue, those asserted in the existing pleadings are legally insufficient in ways that cannot be cured by amendment. The current complaints all allege that Defendants abused supposedly personal identifying information by collecting, transmitting, and using the Unique Device Identifiers ("UDID") associated with each Apple device. Defendants believe that Plaintiffs' allegations about these practices are legally insufficient for myriad reasons, including their failure to allege standing and harm, and are vulnerable to meritorious legal defenses. Defendants suggest that it is unlikely that Plaintiffs will be able to state a valid legal claim. Accordingly, Defendants ask that in these circumstances, initial disclosures and the Initial CMC await the outcome of initial motions to dismiss. Defendants have acted to preserve potentially relevant documents based 3
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on the existing pleadings, and believe that Plaintiffs will not otherwise be prejudiced by this approach.

Dated: March 30, 2011

HOGAN LOVELLS US LLP By: /s/ Michael L. Charlson Attorneys for Defendant APPLE INC. KAMBERLAW, LLP By: /s/ Scott A. Kamber (Admitted Pro Hac Vice) SCOTT A. KAMBER (Admitted Pro Hac Vice) DAVID A. STAMPLEY (Admitted Pro Hac Vice) KAMBERLAW, LLC 100 Wall Street, 23nd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] AVI KREITENBERG KAMBERLAW, LLP 1180 South Beverly Drive, Suite 601 Los Angeles, California 90035 Telephone: [phone] Facsimile: [phone] Proposed Interim Class Counsel and Attorneys for Plaintiff JONATHAN LALO, Member of the iPhone Plaintiffs' Group

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PARISI & HAVENS LLP By: /s/ David C. Parisi DAVID C. PARISI PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: [phone] Facscimile: [phone] [e-mail] JEREMY R. WILSON WILSON TROSCLAIR & LOVINS 302 North Market Street, Suite 501 Dallas, Texas 75202 Telephone: [phone] Facscimile: [phone] [e-mail] NABIL MAJED NACHAWATI, II FEARS NACHAWATI 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Plaintiffs DUSTIN FREEMAN et al., Members of the iPhone Plaintiffs' Group MILBERG LLP By: /s/ Jeff S. Westerman JEFF S. WESTERMAN SABRINA S. KIM MILBERG LLP One California Plaza 300 South Grand Avenue, Ste 3900 Los Angeles, California 90071 Telephone: [phone] Facsimilie: [phone] [e-mail] [e-mail]

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SANFORD P. DUMAIN PETER E. SEIDMAN ANDREI V. RADO ANNE MARIE VU (Bar No. 238771) MILBERG LLP One Pennsylvania Plaza, 49th Floor New York, New York 10119 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] MICHAEL R. REESE (Bar No. 206773) KIM RICHMAN REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Proposed Interim Class Counsel by Plaintiff Chiu and Attorneys for Plaintiff ANTHONY CHIU AUDET & PARTNERS, LLP By: /s/ William M. Audet WILLIAM M. AUDET JONAS P. MANN MICHAEL A. MCSHANE AUDET & PARTNERS LLP 221 Main Street, Suite 1460 San Francisco, California 94105 Telephone: [phone] Facscimile: [phone] [e-mail] [e-mail] [e-mail] JOSEPH H. MALLEY LAW OFFICE OF JOSEPH H. MALLEY 1045 North Zang Boulevard Dallas, Texas 75208 Telephone: [phone] [e-mail]

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RICHARD A. LOCKERIDGE ROBERT K. SHELQUIST Lockridge Grindal Nauen P.L.L.P. 100 Washington Ave., S., Suite 2200 Minneapolis, Minnesota 55401 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs DANIEL RODIMER et al. Members of the iPhone Plaintiffs' Group COOLEY LLP By: /s/ Michael G. Rhodes MICHAEL G. RHODES MATTHEW D. BROWN COOLEY LLP 101 California Street, 5th Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants BACKFLIP STUDIOS, THE WEATHER CHANNEL, and MEDIALETS

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DURIE TANGRI LLP By: /s/ Michael H. Page MICHAEL H. PAGE JOSEPH C. GRATZ DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants DICTIONARY.COM, LLC/IAC INTERACTIVE CORP., PANDORA STUDIOS, INC., and YELP!, INC. SHEPPARD MULLIN RICHTER & HAMPTON LLP By: /s/ Sascha Henry SASCHA HENRY JONATHAN D. MOSS SHEPPARD MULLIN RICHTER & HAMPTON LLP 333 South Home Street, 43d Floor Los Angeles, California 90071-1422 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant GOGII, INC.

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FENWICK & WEST LLP By: /s/ Laurence F. Pulgram LAURENCE F. PULGRAM TYLER G. NEWBY FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant GROUPON, INC. SHEARMAN & STERLING LLP By: /s/ James Donato JAMES DONATO JIYOUN CHUNG SHEARMAN & STERLING LLP 525 Market Street, Suite 1500 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant WEBMD HEALTH SERVICES GROUP, INC.

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ZWILLINGER GENETSKI LLP By: /s/ Marc Zwillinger MARC ZWILLINGER JENNIFER STISA GRANICK ZWILLINGER GENETSKI LLP 425 Market Street, 22nd Floor San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant NEW YORK TIMES CO. GIBSON, DUNN & CRUTCHER LLP By: /s/ Gail E. Lees GAIL E. LEES S. ASHLIE BERINGER JOSHUA A. JESSEN GIBSON, DUNN & CRUTCHER LLP 1881 Page Mill Road Palo Alto, California 94304 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendant FLURRY, INC.

I, Michael L. Charlson, attest that the above-listed counsel have read and approved the JOINT STATUS CONFERENCE STATEMENT and consent to its filing in this action.

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