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 Att. 1

1 MILBERG LLP JEFF S. WESTERMAN (SBN 94559) 2 [e-mail] 300 S. Grand Avenue, Suite 3900 3 Los Angeles, California 90071 Telephone: [phone] Facsimile: [phone] 5 Attorneys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECL. OF WESTERMAN IFSO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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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 DECLARATION OF JEFF S. WESTERMAN IN FURTHER SUPPORT OF PLAINTIFF ANTHONY CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED INTERIM CLASS COUNSEL Date: TBA Time: TBA Judge: Hon. Lucy H. Koh Status Conference: April 6, 2011

Dockets.Justia.com

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I, Jeff S. Westerman, declare: 1. I am a member of the Bar of the State of California and this Court, and member of

3 the law firm of Milberg LLP ("Milberg" or the "firm"). I make this declaration in further 4 support of Plaintiff Anthony Chiu's Recommendation That Milberg LLP Be Appointed as 5 Interim Class Counsel. 6 2. The matters stated herein are true to my personal knowledge or information and

7 belief and, if called upon, I would competently testify thereto. 8 3. Attached as Exhibit 1 is a true and correct copy of the Declaration of Kim

9 Richman in support of Plaintiff Anthony Chiu's Recommendation That Milberg LLP Be 10 Appointed Interim Class Counsel, and the accompanying firm résumé of Reese Richman LLP. 11 4. Prior to the filing of the recommendations for Plaintiffs' Interim Lead Counsel,

12 Scott Kamber, of the other firm seeking appointment, and I had numerous conversations to try to 13 work out an arrangement by agreement. During the course of those conversations, we also 14 discussed our respective upcoming filings with the Court in the event we did not reach 15 agreement. On several of those conversations Mr. Kamber requested, and/or asked me to

16 confirm, that all of our conversations would be off the record and not depicted in either counsels' 17 filings. I agreed each time. 18 Paragraphs 27-30 of Mr. Kamber's declaration does not conform to the agreement that he

19 requested and confirmed in those numerous discussions with me. It is also incomplete and 20 misleading, because among other things Mr. Kamber told me in other conversations that he did 21 not object to Milberg being co-lead counsel, and the "consensus" he describes in paragraph 29 of 22 his declaration did not take place on the March 22nd group call that I was on. In fact, at least 23 two of the participants on the March 22nd call, Messrs. Parisi and Audet, left the call before it 24 was over. When that March 22nd group call ended, it was agreed that we would talk further and 25 it was still unclear which of the several firms would actually be proposed for an executive 26 committee, and this was not revealed to me until I saw their filing. 27 28
DECL. OF WESTERMAN IFSO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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5.

There are other inaccuracies and omissions to Mr. Kamber's and Mr. Audet's

2 declarations about our discussions, but I prefer to adhere to the purpose of the "off the record 3 agreement," which my prior declaration objectively shows that I honored. I honor, and often 4 propose, similar agreements with counsel in all my cases, because it promotes open

5 communication, and the ability to get things done without the distractions of "he said ­ she said." 6 6. At Mr. Kamber's request for "rules of engagement" to facilitate the filings and

7 prevent someone from delaying their lead counsel filing to view the other's filing, on March 25th 8 we agreed to both file our papers around 9:00 p.m. Pacific. My firm adhered to the agreement. 9 Mr. Kamber filed closer to midnight, and appears to have used that delay to confirm that I 10 honored the off the record agreement and did not reveal the content of our discussions, before he 11 put in his version and incorrect characterization of the discussions. 12 I declare under penalty of perjury under the laws of the United States that the foregoing is

13 true and correct. Executed this 4th day of April, 2011, at Los Angeles, California. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECL. OF WESTERMAN IFSO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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/s/ Jeff S. Westerman Jeff S. Westerman

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EXHIBIT 1

1 RICHMAN LLP MICHAEL R. REESE (SBN 206773) 2 KIM RICHMAN 875 Avenue of the Americas, 18th Floor 3 New York, NY 10001 Telephone: [phone] [phone] 4 Facsimile: E-mail: [e-mail] 5 [e-mail] 6 Attorneys for Plaintiff 7 UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECL. OF RICHMAN ISO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. CV-10-5878 LHK (PSG) DECLARATION OF KIM RICHMAN IN SUPPORT OF PLAINTIFF ANTHONY CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED INTERIM CLASS COUNSEL Date: Time: TBA TBA

IN RE IPHONE APPLICATION LITIGATION

Judge: Hon. Lucy H. Koh

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I, Kim Richman, declare: 1. I am a member of the Bar of the State of New York and a founding partner of the

3 law firm of Reese Richman LLP ("Reese Richman"). I make this declaration in support of 4 Plaintiff Anthony Chiu's Recommendation That Milberg LLP ("Milberg") Be Appointed Interim 5 Class Counsel, Submitted Pursuant to Court Order Dated March 15, 2011 (ECF No. 36). 6 2. The matters stated herein are true to my personal knowledge or information and

7 belief and, if called upon, I would competently testify thereto. 8 3. My firm is additional counsel for Plaintiff Anthony Chiu in Chiu v. Apple, Inc.,

9 CV-11-0407-LHK. 10 4. My firm represents investors, consumers, and employees in a wide-array of class

11 action litigation throughout the nation. 12 5. During my legal career, I have worked at both a small think tank in San Francisco

13 and a large class action firm. I have handled cases ranging from the protection of the privacy 14 rights of consumers and the protection of fair use rights of the public, to the prosecution of 15 corporate fraud and insider trading. 16 6. Milberg has all of the qualifications required by Rule 23(g) (1)(A): (i) Milberg

17 has worked diligently to identify and investigate the potential claims in the Chiu action; (ii) 18 Milberg has significant experience in handling class actions, other complex litigation, and the 19 types of privacy claims asserted in the Chiu action; (iii) Milberg has superior knowledge of the 20 applicable laws; and (iv) Milberg has extensive resources and has a proven record of litigating its 21 cases to conclusion. 22 7. For the reasons stated above, I support the appointment of Milberg as sole Interim

23 Class Counsel, and my firm is prepared to work under the leadership of Milberg to vigorously 24 prosecute this case under the terms set forth in the Court's March 15 Order (ECF No. 36). 25 26 27 28
DECL. OF RICHMAN ISO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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8.

Attached as Exhibit A is the firm résumé of Reese Richman LLP.

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1 I declare under penalty of perjury under the laws of the United States that the foregoing is true 2 and correct. 3
th 4 Executed this 4 day of April, 2011, at New York, New York.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECL. OF RICHMAN ISO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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Kim Richman

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EXHIBIT A

REESE RICHMAN LLP
Reese Richman LLP represents investors, consumers and employees in a wide-array of class action litigation throughout the nation. The attorneys of Reese Richman LLP are skilled litigators with years of experience in federal and state court. Reese Richman LLP is based in New York, New York with attorneys also in Austin, Texas and San Francisco, California. Recent and current cases litigated by the attorneys of Reese Richman LLP on behalf of investors and consumers include the following: Yoo v. Wendy's International, Inc., 07-cv-04515 FMC (C.D. Cal.): class action for violation of California's consumer protection laws; Ackerman v. The Coca-Cola Co. et al., 09-cv-0395 (JG) (RML) (E.D.N.Y.): class action for violation of California and New York's consumer protection laws; Chin v. RCN Corporation, 08-cv-7349 RJS (S.D.N.Y.): class action for violation of Virginia's consumer protection law; Gaines v. Home Loan Center Inc., 08-cv-667 DOC (C.D. Cal.): class action for violation of the Racketeer Influenced and Corrupt Organizations Act; Bodoin v. Impeccable L.L.C., Index. No. 601801/08 (N.Y. Sup. Ct.): individual action for conspiracy and fraud; Tan v. Comcast Corp., 2:08-cv-02735 LDD (E.D. Pa.): class action for violation of the federal Computer Abuse and Fraud Act; Young v. Wells Fargo & Co. et al., 08cv-507 (S.D. Iowa): class action for violation of the Racketeer Influenced and Corrupt Organizations Act; Murphy v. DirecTV, Inc., 07-cv-06545 FMC (C.D. Cal.): class action for violation of California's consumer protection laws; Bain v. Silver Point Capital Partnership LLP, Index No. 114284/06 (N.Y. Sup. Ct.): individual action for breach of contract and fraud; Siemers v. Wells Fargo & Co. et al., No. C-05-4518 WHA (N.D. Cal.): class action for violation of §10(b) of the Securities Exchange Act of 1934; Kastin v. AMR Corp. et al., 06-CV-5726 (S.D.N.Y.): class action for violation of the Sherman Antitrust Act; In re Orbitz Taxes and Fees Litigation, No 05 CH 00442 (Cook County, Illinois): class action for violation of Illinois' consumer protection laws; In re Korean Air Antitrust Litigation, 07-cv-01891 SJO (C.D. Cal.): class action for violation of the Sherman Antitrust Act; Dover Capital Ltd. v. Galvex Estonia OU, Index No. 113485/06 (N.Y. Sup. Ct.): individual action for breach of contract involving an Eastern European steel company; All-Star Carts and Vehicles Inc. v. BFI Canada Income Fund et. al., 2:08-cv-1816 LDW (E.D.N.Y.): class action for violation of the Sherman Antitrust Act; In re American Funds Securities Litigation, CV-06-7815-GAF (C.D. Cal): class action for violations of §12(a)(2) of the Securities Act of 1933 and §10(b) of the Securities Exchange Act of 1934; Fink v. Time Warner Cable, 08-cv-9628 LTS (S.D.N.Y.): class action for violation of New York's consumer protection law; Serrano v. Cablevision Systems Corporation, 09-cv-1056 DI (E.D.N.Y.): class action for violation of the Computer Abuse and Fraud Act and New York's consumer protection law; S.K. v. General Nutrition Corporation, 08-cv-9263 LAK (S.D.N.Y.): class action for violation of New York's consumer protection laws; Kreek v. Wells Fargo Securities, 08-cv-1830 WHA (N.D. Cal.): class action for violation of §10(b) of the Securities Exchange Act of 1934; Petlack v. S.C. Johnson & Son, Inc., 08-cv-00820 CNC (E.D. Wisconsin): class action for violation of Wisconsin consumer protection law; Hill v. Roll International Corp., CGC-09-487547 (San Francisco County Superior Court): class action for violation of California's consumer protection laws; and L'Ottavo Ristorante v. Ingomar Packing Co. et al., 09-cv-01427 (E.D. Cal.): class action for violation of the Sherman Antirust Act.

The Attorneys of Reese Richman LLP Michael R. Reese Mr. Reese litigates securities, consumer and antitrust cases as class actions and on behalf of individual clients. Prior to joining private practice in 2000, Mr. Reese served as an assistant district attorney at the Manhattan District Attorney's Office where he served as a trial attorney prosecuting both violent and white-collar crime. Mr. Reese has extensive trial experience. Achievements by Mr. Reese on behalf of consumers span a wide array of actions. For example, in Yoo v. Wendy's International Inc., 07-cv-04515 FMC (C.D. Cal.) Mr. Reese was appointed class counsel by the court and commended on achieving a settlement that eliminated trans-fats from a popular food source. See Yoo v. Wendy's International Inc. CV-04515-FMC (JCx) (C.D. Cal. 2007) (stating that counsel "has conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). In Chin v. RCN Corp., 08-cv-7349 RJS (S.D.N.Y.), Mr. Reese was appointed class counsel and commended by the court for stopping RCN's practice of throttling its internet customers through adverse network management practices. Chin v. RCN Corp., 08-cv-7349 RJS, 2010 U.S. Dist. LEXIS 96302 (S.D.N.Y. Sept. 8, 2010) (stating that "class counsel is qualified, experienced, and able to conduct the litigation"). Victories by Mr. Reese on behalf of investors include Siemers v. Wells Fargo, Inc. CV05-4518 (WHA) (N.D. Cal.) that resulted in settlement soon after the class was certified; In re Sears Roebuck and Co. Securities Litigation, No. 02 C 07527 (N.D. Ill.) which resulted in a $215 million recovery for shareholders; In re American Express Financial Services Securities Litigation, No. 04 Civ. 1773 (S.D.N.Y.) and Spahn v. Edward D. Jones & Co. L.P., 04-cv-0086HEA (E.D. Mo.), both of which were actions against brokerages for alleged receipt of kickbacks from mutual fund companies that resulted in settlements of $100 million and $127.5 million, respectively. Mr. Reese also has had great success at the appellate level advocating for consumers and investors. For example, in Olmstead v. Pioneer Electronics (USA), Inc., No. BC257222 (Los Angeles Superior Court)), Mr. Reese successfully litigated before the Supreme Court of California on behalf of consumers in a ground breaking case that gave named plaintiffs the right to obtain unredacted records of similarly situated consumers who had complained to defendants about deceptive practices. See Pioneer Electronics (USA), Inc., v. the Superior Court of Los Angeles County, 40 Cal. 4th 360 (2005). Likewise, in Masters v. DirecTV, Inc., Mr. Reese successfully litigated before the Ninth Circuit that California laws can apply to consumers nationwide when the defendant corporation is headquartered within the state. See Masters v. DirecTV, Inc. 08-55825, 2009 U.S. App. LEXIS 25479 (9th Cir. 2009). Mr. Reese is a member of the state bars of New York and California as well as numerous federal courts. Mr. Reese received his juris doctorate from the University of Virginia in 1996 and his bachelor's degree from New College in 1993.

Kim E. Richman Mr. Richman is with the New York offices of Reese Richman LLP from where he litigates consumer and securities fraud class actions. Mr. Richman also specializes in civil rights litigation. Mr. Richman is an accomplished trial attorney with experience both in federal and state courts. Mr. Richman draws his class action expertise from previously working at both a small think tank in San Francisco and a large class action firm. His experience includes litigating cases ranging from protecting the privacy rights of consumers and fair use rights of the public to corporate fraud and insider trading. Mr. Richman is experienced in handling both state and federal matters and has litigated dozens of trials to verdict. Mr. Richman has also handled various federal civil rights claims, representing clients both individually and on a class-wide basis. These matters have spanned from protecting the wrongfully accused and victims of excessive force to the human rights of factory laborers and civil liberties of hundreds of protestors arrested at a political march. Mr. Richman is a member of the state bar of New York and the federal bars of the Southern and Eastern Districts of New York. Mr. Richman received his juris doctorate from Brooklyn Law School in 2001 and his bachelor's degree from the University of Massachusetts in 1996, from where he graduated summa cum laude.

Belinda L. Williams Ms. Williams is based in New York from where she focuses her practice on class actions on behalf of defrauded consumers and investors. Ms. Williams has extensive experience in litigating complex commercial cases. Ms. Williams is admitted to the bars of several federal courts as well as the state bars of New York and Maryland. Ms. Williams received her juris doctorate from the University of Virginia School of Law in 1986 and her undergraduate degree from Harvard University in 1982.

Kate J. Stoia Ms. Stoia is based in San Francisco from where she litigates securities and consumer class actions. Ms. Stoia previously worked at the law firms of Brobeck Phleger & Harrison LLP and Gibson Dunn & Crutcher LLP. Prior to her work as a civil litigator, Ms. Stoia clerked for the Hon. Charles A. Legge of the Northern District of California. Ms, Stoia is a member of the state bar of California and several federal courts. Ms. Stoia received her juris doctorate from Boalt Hall School of Law, University of California at Berkeley and her bachelor's degree from Columbia University.

Lance N. Stott Mr. Stott is based in Austin, Texas from where he litigates consumer class actions. Previous and current consumer fraud class actions litigated by Mr. Stott include Davis v. Toshiba America Consumer Products for allegedly defective DVD players; Bennight v. Pioneer Electronics (USA) Inc. et al. for allegedly defective television sets; Spencer v. Pioneer Electronics (USA) Inc. et al. for allegedly defective DVD players; and, Okland v. Travelocity.com, Inc., for deceptive pricing for online hotel reservations. Mr. Stott is a member of the state bar of Texas. Mr. Stott received his juris doctorate from the University of Texas in 1996 and his bachelor's degree from New College in 1993.

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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

4 of Los Angeles, over the age of 18 years, and not a party to or interest in the within action; that 5 declarant's business address is One California Plaza, 300 South Grand Avenue, Suite 3900, Los 6 Angeles, California 90071-3149. 7 2. Declarant hereby certifies that on April 4, 2011, declarant served the

8 DECLARATION OF JEFF S. WESTERMAN IN FURTHER SUPPORT OF PLAINTIFF 9 ANTHONY CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS 10 INTERIM CLASS COUNSEL by electronically filing the foregoing document listed above by 11 using the Case Management/ Electronic Case filing system. 12 13 3. Declarant further certifies: All participants in the case are registered CM/ECF users and that service will be

14 accomplished by the court's CM/ECF system 15 Participants in the case who are registered CM/ECF users will be served by the

16 court's CM/ECF system. Participants in the case that are not registered CM/ECF users will be 17 served by First-Class Mail, postage pre-paid or have dispatched to a third-party commercial 18 carrier for delivery to the non-CM/ECF participants as addressed and listed below: 19 20 21 22 23 24 25 26 27 28
DECL. OF WESTERMAN IFSO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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Michael L. Charlson Norman J. Blears HOGAN LOVELLS US LLP 525 University Avenue 4th Floor Palo Alto, California 94301 P: 650.463.4000 F: 650.463.4199 [e-mail] [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 places so addressed.

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
DECL. OF WESTERMAN IFSO PLTF CHIU'S RECOMMENDATION THAT MILBERG LLP BE APPOINTED AS INTERIM CLASS COUNSEL, Case No. CV-10-5878 LHK (PSG)
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CECILLE CHAFFINS