Lalo v. Apple, Inc et al

Filing 80

MOTION to Relate Case filed by Flurry, Inc.. (Attachments: # 1 Exhibit King Complaint)(Beringer, Susan) (Filed on 5/11/2011)

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GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
S. ASHLIE BERINGER, SBN 263977
[e-mail]
JOSHUA A. JESSEN, SBN 222831
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: 650.849.5333
Attorneys for Defendant
FLURRY, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CASE NO. 5:10-CV-05878 LHK (PSG)

In re iPhone Application Litigation

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ADMINISTRATIVE MOTION TO
CONSIDER WHETHER CASES SHOULD
BE RELATED

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The Honorable Lucy H. Koh

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Gibson, Dunn &
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Administrative Motion to Consider Whether Cases Should Be Related – Case No. CV 10-5878 LHK

Pursuant to Local Rule 3-12, Defendant Flurry, Inc. (“Flurry”) hereby submits this

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Administrative Motion to Consider Whether Cases Should Be Related to give notice of the following

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action: Juliann King, Individually and on Behalf of a Class of Similarly Situated Individuals,

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Plaintiff, v. Google, Inc; Flurry, Inc.; Mobclix, Inc., Defendants, Case No. 5:11-CV-02167-PSG,

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filed in this District on May 3, 2011.1
Flurry brings the King filing to the Court’s attention so that the Court may determine whether

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King is sufficiently related to the above-captioned consolidated action, In re iPhone Application

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Litigation, Case No. 5:10-CV-05878, under Local Rule 3-12 such that, as a result of certain common

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legal issues and some overlapping factual issues, some duplication of labor may be avoided if the two

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cases are heard by the same judge.

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Each claim for relief asserted by the King Plaintiffs is likewise pleaded in In re iPhone

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Litigation.2 (In re iPhone Litigation also alleges, in addition, violations of Negligence, the Consumer

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Legal Remedies Act - Cal. Civ. Code § 1750, and Breach of Implied Covenant of Good Faith and

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Fair Dealing, which are not pleaded in King). Moreover, the defendants in the King action—Flurry,

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MobClix, Inc., and Admob, Inc. (through Google, Inc.)3—all are named defendants in In re iPhone

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Litigation. Further, Plaintiffs’ counsel in the King action is Interim Plaintiffs’ Class Counsel in In re

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iPhone Litigation.

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The claims common to both Complaints also originate from the same core allegations

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concerning the alleged gathering and misuse of personal information and will involve certain

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overlapping legal and factual issues. Common core legal issues in the two Complaints include

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A copy of the King Complaint is attached hereto as Exhibit A.

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Note that the last claim in the King Complaint, Breach of Implied Contract, is alleged in In re
iPhone Litigation as Unjust Enrichment.

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Google, Inc., which is a named defendant in the King action, is not a named defendant in In re
iPhone Litigation. Similarly, Admob, Inc., which is a named defendant in In re iPhone
Litigation, is not a named defendant in the King action. However, it appears that the King
Complaint names Google as a defendant based on its ownership of AdMob. See King
Complaint, ¶ 6 (“Google is the owner of AdMob, a mobile advertising network”).
Accordingly, as a practical matter, there is complete overlap among the defendants in both
matters.

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Administrative Motion to Consider Whether Cases Should Be Related – Case No. CV 10-5878 LHK

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whether plaintiffs have suffered injury and loss of money or property sufficient to confer standing

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under the United States Constitution and California’s Unfair competition Law (as amended by

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Proposition 64) , the extent of Defendants’ disclosure obligations under the California consumer

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protection statutes, and the meaning of statutory references to “information” and related concepts.

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The common legal issues will be raised in motions to dismiss the claims with prejudice in both cases.

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If such motions were to be unsuccessful, the legal issues would be addressed again in both cases in

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motions for summary judgment, briefing on class certification, and, if the prior referenced motions

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and opposition were to be unsuccessful, again in briefing at trial. For these reasons, the cases may be

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deemed related under Local Rule 3-12(a)(2) because “it appears likely that there will be an unduly

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burdensome duplication of labor and expense or conflicting results if the cases are conducted before

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different judges.”

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Accordingly, Flurry respectfully requests that the Court approve transfer of the King action to

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this Court. In accordance with Local Rule 3-12(b), Flurry is serving a copy of this Motion on all

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parties in the King action and In re iPhone Litigation.

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DATED: May 11, 2011

GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Gail E. Lees
Gail E. Lees

Attorneys for Defendant
FLURRY, INC.

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Administrative Motion to Consider Whether Cases Should Be Related – Case No. CV 10-5878 LHK

DECLARATION OF SERVICE

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I, Lorraine Nishiguchi, declare that I am employed in the County of Santa Clara, State of

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California; I am over the age of 18 years and am not a party to this action; my business address is

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1881 Page Mill Road, Palo Alto, California 94304, in said County and State. On May 11, 2011, I

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served the within:

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE

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RELATED

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to all named counsel of record as follows:

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Scott A. Kamber
David A. Stampley
KAMBERLAW, LLC
100 Wall Street, 23rd flr
New York, NY 10005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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David C. Parisi
PARISI & HAVENS LLP
15233 Valleyheart Drive
Sherman Oaks, CA 91403
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiff Juliann King

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BY ECF (ELECTRONIC CASE FILING): I e-filed the above-detailed documents
utilizing the United States District Court, Northern District of California’s mandated ECF (Electronic
Case Filing) service on May 11, 2010. Counsel of record are required by the Court to be registered efilers, and as such are automatically e-served with a copy of the documents upon confirmation of efiling.

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I certify under penalty of perjury that the foregoing is true and correct, that I am employed in

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the office of a member of the bar of this Court at whose direction the service was made, and that this

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declaration is executed by the undersigned on May 11, 2011, at Palo Alto, California.

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/s/ Lorraine Nishiguchi
LORRAINE NISHIGUCHI

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101074242_3.DOC

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Gibson, Dunn &
Crutcher LLP

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Administrative Motion to Consider Whether Cases Should Be Related – Case No. CV 10-5878 LHK