Lalo v. Apple, Inc et al

Filing 64

Memorandum of Law in Further Support of 45 Recommendation that Milberg LLP be Appointed Interim Class Counsel, and in Opposition to the Motion Filed by the Kamberlaw Group filed by Anthony Chiu. (Attachments: # 1 Declaration)(Related document(s) 45 ) (Westerman, Jeff) (Filed on 4/4/2011) Modified text on 4/7/2011 (dhm, COURT STAFF).

Lalo v. Apple, Inc et al

Doc. 64

1 MILBERG LLP JEFF S. WESTERMAN (SBN 94559) 2 [e-mail] SABRINA S. KIM (SBN 186242) 3 [e-mail] One California Plaza 4 300 S. Grand Avenue, Suite 3900 Los Angeles, California 90071 5 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiff 7 [Additional Counsel on Signature Page] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE IPHONE APPLICATION LITIGATION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NOS. CV-10-5878-LHK (PSG); CV-10-5881-LHK; CV-11-0407-LHK; CV-10-0700-LHK PLAINTIFF ANTHONY CHIU'S MEMORANDUM OF LAW IN FURTHER SUPPORT OF HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED INTERIM CLASS COUNSEL, AND IN OPPOSITION TO THE MOTION FILED BY THE KAMBERLAW GROUP Date: TBA Time: TBA Judge: Hon. Lucy H. Koh Status Conference: April 6, 2011

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TABLE OF CONTENTS Page

3 RELEVANT FACTS .......................................................................................................................1 4 STATEMENT OF ISSUES TO BE DECIDED ..............................................................................1 5 RECOMMENDATION / ARGUMENT .........................................................................................2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i
PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, SUBMITTED PURSUANT TO COURT ORDER DATED MARCH 15, 2011,C.A. No. 5:10-cv-05878-LHK (PSG)

I.

MILBERG HAS DEMONSTRATED AN EDGE ON THE RULE 23(g) FACTORS................................................................................................................2 A. B. C. D. Milberg Has More Class Action Experience And Privacy/High Tech Case Experience Than KamberLaw.............................................................2 Milberg Has Superior Resources That Will Benefit The Class In This Litigation......................................................................................................3 Milberg Has Achieved Monetary And Remedial Recoveries In Many Cases ............................................................................................................4 The Reese Richman Firm Supports Milberg's Appointment ......................4

II.

THE KAMBERLAW GROUP'S "MOTION" SHOULD BE DENIED.................4 A. The KamberLaw Group Mischaracterized Communications Which It Requested, And Agreed, To Be Off The Record .........................................5

III.

CONCLUSION........................................................................................................6

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RELEVANT FACTS Plaintiff Anthony Chiu respectfully submits this Memorandum of Law and accompanying

3 Declaration of Jeff S. Westerman ("Westerman April 4 Decl.") in further support of his 4 Recommendation that Milberg LLP ("Milberg") be appointed Interim Class Counsel in the 5 consolidated In re iPhone Application Litigation, and in opposition to the Motion submitted by the 6 group, led by KamberLaw LLC ("KamberLaw," or collectively the "KamberLaw Group"). 7 Although self-ordering by counsel is encouraged by courts in consumer class cases, any

8 arrangement must be scrutinized under Rule 23(g) of the Federal Rules of Civil Procedure ("Rule 9 23(g)"). Fed. R. Civ. P. 23(g)(2)(B); see also Parkinson v. Hyundai Motor Am., No. SACV 06-345 10 AHS, 2006 U.S. Dist. LEXIS 59055, at *6 (C.D. Cal. Aug. 7, 2006). If self-ordering is not 11 possible, the Court should still conduct an analysis to select "[t]he lawyer best able to represent the 12 class's interests" from the applicants competing for appointment. Manual For Complex Litigation 13 (the "Manual") § 21.272 (4th ed. 2004). An objective review of the firm résumés of Milberg and 14 KamberLaw, the facts that support each proposal, and the conduct of the KamberLaw Group to 15 date, show that Milberg's experience and resources give it the edge in the Rule 23(g) analysis. 16 17 STATEMENT OF ISSUES TO BE DECIDED Before the Court are two competing recommendations for appointment of Interim Class

18 Counsel in the consolidated iPhone action submitted by Milberg and KamberLaw Group. As the 19 content, quality and completeness of the submissions filed with the Court by Milberg shows, it has 20 demonstrated the type of leadership that warrants appointment as Interim Class Counsel within the 21 meaning of Rule 23(g). As presented in Mr. Chiu's March 25 Recommendation, and further 22 detailed here, Milberg has both far-reaching experience and expertise in class actions and privacy 23 litigation. 24 The KamberLaw Group makes the lesser showing under the Rule 23(g) requirements, by

25 indicating a weaker bargaining position to defendants, and by taking a puzzling detour outside the 26 parameters of this Court's March 15, 2011 Order ("March 15 Order"), the Court's procedures, and 27 the local rules. The KamberLaw Group claims that its proposed stipulation for selecting Interim 28 Class Counsel, which all counsel approved, and the Court entered on as the March 15 Order -1PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

1 demonstrates "the importance of efficiency to KamberLaw." (ECF No. 46 at 11.) But oddly, the 2 KamberLaw Group did not follow its own suggested procedure. Instead of filing the

3 recommendation for Interim Class Counsel as ordered, it filed an improperly noticed motion for 4 appointment of Interim Class Counsel for which there is no properly noticed, or court reserved, 5 hearing date. 6 This conduct is symptomatic of KamberLaw's approach to this litigation, which involves

7 Mr. Kamber making agreements in an attempt to appear cooperative only to bend his interpretation 8 in practice. In addition, (a) Mr. Kamber agreed that all discussions regarding the self-ordering of 9 proposed Interim Class Counsel were to be "off the record," but he then discussed one of those 10 discussions in his moving papers in a manner that was incomplete and inaccurate (ECF No. 46 at 111 2; 4-6; ECF No. 47 at ¶¶ 25-30); and (b) Mr. Kamber requested and obtained an agreement that both 12 firms would file their respective opening papers at the same time, to avoid disadvantaging either 13 group, and but he then filed the KamberLaw Group's papers more than two hours later than the 14 agreed-upon time, and appears to have used the delay to its advantage, i.e. by confirming Milberg 15 adhered to the agreement that the discussions were off-the-record, and then submitting his own self16 serving, incorrect and incomplete account. Mr. Kamber's conduct in only selectively dishonoring 17 his agreement is especially puzzling in light of the extensive discussions about a co-lead 18 arrangement and his repeated comments that he did not have a problem with Milberg being co-lead 19 counsel with his firm. (Westerman April 4 Decl.) 20 21 I. 22 RECOMMENDATION / ARGUMENT MILBERG HAS DEMONSTRATED AN EDGE ON THE RULE 23(g) FACTORS Milberg presented in its initial recommendation concrete facts why it is well suited to lead

23 this litigation. 24 25 26 and experience in privacy and other high-tech cases. (ECF No. 45 at 8-10.) In contrast, Mr. 27 Kamber's submission characterizes KamberLaw firm as a "boutique" firm, and presents its smaller 28 -2PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

A.

Milberg Has More Class Action Experience And Privacy/High Tech Case Experience Than KamberLaw

Milberg has a demonstrable 40-year history in consumer class and other complex litigation

1 size and resources as an advantage over Milberg's broader class action experience. (ECF No. 46 2 passim.) But the ability to apply tried-and-true methods and approaches to an emergent area of law, 3 and bring substantial resources to bear, is a valuable asset, not a liability. As demonstrated by its 4 firm résumé, Milberg pioneered many areas of class action law over four decades, and has been 5 responsible for numerous precedent-setting decisions and billions in recoveries. (ECF No. 45-5.) 6 Milberg has both broad class action experience and experience in privacy and high technology 7 actions. 8 9 10 11 12 13 14 lead this case have these, or comparable, resources. While the KamberLaw Group says it possesses in-house expertise and resources relevant to B. Milberg Has Superior Resources That Will Benefit The Class In This Litigation

Milberg is a pioneer in the e-discovery field and has in-house e-discovery capabilities that would be invaluable to this Digital Age litigation against a high-tech defendant and benefit the Class. (ECF No. 45 at 4-5, 7, 11; ECF No. 45-4.) In contrast, none of the other firms that seek to

15 this litigation, it provides no specific example. (ECF No. 46 at 7.) Milberg has successfully 16 spearheaded numerous complex class actions against some of the most powerful corporations in the 17 world, sometimes in litigations that spanned many years and required the expenditure of tens of 18 19 attrition litigation obviously is never a goal for plaintiffs, a plaintiff's bargaining position is 20 21 improved immensely when defendants know that they cannot outspend or outlast their adversaries. millions of dollars, in hard costs and attorney time, both domestically and internationally. While

22 It is often this understanding that compels defendants to agree to resolutions that are as beneficial to 23 class members as they are efficiently achieved. A review of the record demonstrates that none of 24 the KamberLaw Group firms, singly or in the aggregate, can match Milberg's history of 25 successfully litigating big cases against big companies like Apple. 26 27 important to its litigation strategy. (ECF No. 46 at 9:11-15; ECF No. 47 at 6:16-19 (¶ 23).) While 28 -3PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

To the contrary, KamberLaw signaled to Apple that early and moneyless settlements are

1 settlement should be explored, and privacy rights often involve remedial relief in addition to money, 2 it is hard to understand how the class is served by this public statement of settlement strategy at this 3 4 qualified under 23(g) than a firm with a demonstrated track record of both monetary and non5 6 7 8 monetary recoveries, for class members. (ECF No. 45-5.) C. Milberg Has Achieved Monetary And Remedial Recoveries In Many Cases preliminary stage. It is also hard to understand how, as this was intended, it makes a movant more

Any signal that this case can be settled for non-monetary relief is premature and a

9 questionable negotiating technique, at best. Kamber states that unlike other class actions (implicitly 10 of the types Milberg has been spearheading for decades), the point of privacy actions is to end the 11 bad conduct, not to recover money for violations of law. (ECF No. 47 at 6.) While ending the 12 conduct is obviously important, the ability to credibly obtain money not only increases the 13 negotiating leverage for when the conduct stops, it is also leverage for the nature, strength and 14 breadth of the preventative relief. More importantly, the message conveyed to defendants is that if 15 certain counsel is appointed to spearhead this litigation, the case will at most settle for non16 monetary relief. This alone diminishes KamberLaw Group's motion pursuant to Rule 23(g). 17 Consumer cases sometimes achieve justice through purely remedial relief. However, it is

18 difficult to understand why a proposed class counsel would take monetary relief for the Class off 19 the table at the outset of the case. The Class would be best represented by aggressive litigators who 20 can maximize the benefits to the Class, and who have the willingness and ability to pursue all types 21 of relief. 22 23 D. The Reese Richman Firm Supports Milberg's Appointment

Contrary to the KamberLaw Group's assertions that Milberg is the only law firm that

24 opposes the group's leadership proposal, Milberg also has the support of consumer class action law 25 firm, Reese Richman LLP. (See ECF No. 45, at 11-12, and Westerman April 4 Decl. Ex. 1: Reese 26 Richman LLP Declaration.) 27 II. 28 THE KAMBERLAW GROUP'S "MOTION" SHOULD BE DENIED Having chosen to file a "motion" rather than following its own proposed stipulation that the -4PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

1 Court ordered, the KamberLaw Group's motion should be denied because it did not follow the 2 March 15 Order, and was not in compliance with this Court's rules. It improperly noticed the 3 motion for a hearing on April 5, far less than 35 days from the service date, without first having 4 obtained a date from the Court, and on a day that the court does not generally hear motions. The 5 KamberLaw Group then filed an "errata" but the errata only purported to change the hearing date 6 from April 5, 2011 to April 6, 2011, which resolves none of the confusion created by the 7 KamberLaw Group's self created motion practice. (ECF No. 48.) Though Milberg does not argue 8 that these violations by themselves undermine counsel's fitness under Rule 23(g), when viewed 9 with other factors, it weakens the KamberLaw Group's request. 10 Should the Court be inclined to excuse these errors and treat the KamberLaw Group's

11 "motion" as the recommendation called for in the March 15 Order, the recommendation should be 12 declined. 13 14 15 A. The KamberLaw Group Mischaracterized Communications Which It Requested, And Agreed, To Be Off The Record

The Manual provides that "[t]he added demands and burdens of complex litigation place a

16 premium on attorney professionalism, and the judge should encourage counsel to act responsibly." 17 Manual § 10.21. 18 At the outset of discussions relating to self-organizing among the parties, and throughout

19 numerous discussions, Kamber requested that plaintiffs' counsel keep the content of the 20 conversations "off the record," and repeatedly made assurances that he would do the same. 21 Westerman April 4 Decl. Prior to the day of the filing he asked for "Rules of Engagement" for the 22 filing. On the day of the filing, at Kamber's request, it was agreed with Milberg that both

23 recommendations would be filed concurrently at 9:00 p.m. (PST), so as to not give a later filing 24 party an advantage to make adjustments upon reviewing the other's submission. Milberg honored 25 both agreements and commenced its filing of Mr. Chiu's March 25 Recommendation at 9:00 p.m. 26 (PST). However, the KamberLaw Group did not file its motion until nearly three hours after the 27 agreed upon time. 28 The later filing is significant because Kamber was able to confirm that Milberg honored its -5PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

1 agreement to keep conversations off the record, which Kamber then appears to have taken 2 advantage of to present his one-sided, inaccurate and incomplete characterization. Milberg

3 objectively honored both the agreement for the filing time and for keeping discussions private. 4 Westerman April 4 Decl. 5 III. 6 CONCLUSION Milberg, has the resources to prosecute this action and took the time to develop the case by

7 consulting with experts and performing its own investigation before filing. 8 Plaintiff respectfully requests that the Court enter the Proposed Order appointing Milberg as

9 Interim Class Counsel. 10 DATED: April 4, 2011 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

Respectfully Submitted, /s/ Jeff S. Westerman JEFF S. WESTERMAN MILBERG LLP JEFF S. WESTERMAN SABRINA S. KIM One California Plaza 300 S. Grand Avenue, Suite 3900 Los Angeles, CA 90071 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] [e-mail] Attorneys for Plaintiff MILBERG LLP SANFORD P. DUMAIN PETER E. SEIDMAN ANDREI V. RADO ANNE MARIE VU (SBN 238771) One Pennsylvania Plaza, 49th Floor New York, NY 10119 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff

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REESE RICHMAN LLP MICHAEL R. REESE (SBN 206773) KIM RICHMAN 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] [e-mail] Attorneys for Plaintiff

-7PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

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DECLARATION OF SERVICE BY CM/ECF AND/OR MAIL I, the undersigned, declare: 1. That declarant is and was, at all times herein mentioned, employed in the County of

Los Angeles, over the age of 18 years, and not a party to or interest in the within action; that declarant's business address is One California Plaza, 300 South Grand Avenue, Suite 3900, Los Angeles, California 90071-3149. 2. Declarant hereby certifies that on April 4, 2011, declarant served PLAINTIFF

ANTHONY CHIU'S MEMORANDUM OF LAW IN FURTHER SUPPORT OF HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED INTERIM CLASS COUNSEL, AND IN OPPOSITION TO THE MOTION FILED BY THE KAMBERLAW GROUP, by electronically filing the foregoing document listed above by using the Case Management/ Electronic Case filing system. 3. Declarant further certifies: All participants in the case are registered CM/ECF users and that service will be accomplished by the court's CM/ECF system Participants in the case who are registered CM/ECF users will be served by the court's CM/ECF system. Participants in the case that are not registered CM/ECF users will be served by First-Class Mail, postage pre-paid or have dispatched to a third-party commercial carrier for delivery to the non-CM/ECF participants as addressed and listed below: Michael L. Charlson HOGAN LOVELLS US LLP 525 University Avenue 4th Floor Palo Alto, California 94301 P: 650.463.4000 F: 650.463.4199 [e-mail] 4. Howard S. Caro HOGAN LOVELLS US LLP 4 Embarcadero Center 22nd Floor San Francisco, California 94111 P: 415.374.2300 F: 415.374.2499 [e-mail]

That there is a regular communication by mail between the place of mailing and the

26 places so addressed. 27 28 -8PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

1

I declare under penalty of perjury that the foregoing is true and correct. Executed this 4th

2 day of April, 2011, at Los Angeles, California. 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 -9PLTF CHIU'S MOL IFSO HIS RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, AND IN OPPOSITION OF THE MOTION OF KAMBERAW GROUP, Case No. CV-10-5878-LHK (PSG)

CECILLE CHAFFINS