Milans v. Netflix, Inc.

Filing 59

ORDER by Judge Edward J. Davila granting (15),(46) Motion to Consolidate Cases; granting (22),(47) Motion to Appoint Counsel in case 5:11-cv-00379-EJD; granting (5), (13) Motion to Consolidate Cases in case 5:11-cv-00820-EJD. Signed by Judge Edward J. Davila on 8/12/2011. (ejdlc1S, COURT STAFF) (Filed on 8/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JASON BERNAL,

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MICHAEL RURA,
For the Northern District of California

United States District Court

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PETER COMSTOCK,
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MICHAEL SEVY,
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NO. 5:11-cv-00820 EJD
NO. 5:11-cv-01075 EJD
NO. 5:11-cv-01218 EJD
NO. 5:11-cv-01309 EJD
NO. 5:11-cv-01359 EJD
NO. 5:11-cv-00379 EJD

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ORDER GRANTING PLAINTIFFS’
MOTION TO CONSOLIDATE;
APPOINTING INTERIM CLASS
COUNSEL

ERIC WIZENBERG,
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JEFF MILANS,
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Plaintiff(s),
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v.
NETFLIX, INC.,
Defendant(s).
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Presently before the court are two matters. The first is the joint motion of Plaintiffs Jason

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Bernal (“Bernal”) and Michael Rura (“Rura”) who seek to consolidate their currently-related cases

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against Defendant Netflix, Inc. (“Netflix”) with another related case pending before this court,

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namely Milans v. Netflix, Inc. Bernal and Rura also request the appointment of their respective

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attorneys as co-lead interim class counsel.1 The second matter is the competing motion of Plaintiff

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Jeff Milans (“Milans”) to appoint his own attorneys as interim class counsel.2 Having had the

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benefit of a hearing on these matters, they are each addressed by the court in turn.

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I.

THE MOTION TO CONSOLIDATE

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The district court may consolidate actions involving common questions of law and fact. Fed.

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R. Civ. P. 42(a)(2). The court exercises “broad discretion to decide how cases on its docket are to be

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tried so that the business of the court may be dispatched with expedition and economy while

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providing justice to the parties.” Morin v. Turpin, 778 F. Supp. 711, 733 (S.D.N.Y 1991) (citing 6

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C. Wright & A. Miller, Federal Practice and Procedure § 1471, at 359 (1971)). In exercising this
discretion, the court “weighs the saving of time and effort consolidation would produce against any

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For the Northern District of California

United States District Court

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inconvenience, delay, or expense that it would cause.” Huene v. United States, 743 F.2d 703, 704

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(9th Cir. 1984). Consolidation may occur upon motion by a party or sua sponte. In re Adams

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Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987).

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Here, Bernal and Rura seek to consolidate their actions with Milans. Upon review of the

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Complaints in each action, the court finds that each case presents virtually identical factual and legal

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issues. The plaintiffs allege in both actions that Netflix is improperly retaining their personal

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identification information and video viewing history after termination of their accounts in violation

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of the same federal and state statutes, save for one additional claim brought by Bernal and Rura.

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The three actions are in the same procedural stage as Netflix has not yet filed an Answer per

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stipulation of the parties. Moreover, since the claims for each case arise from the same nucleus of

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activity, discovery issues relating to each action will be parallel. Based on the circumstances

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presented, there is no basis to find that consolidation would cause inconvenience, delay or expense,

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especially since Milans, Netflix and all other parties seemingly agree with the consolidation request.

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The joint motion appears as Docket Item Nos. 5 and 13 in the Bernal action (5:11-cv00820) and Docket Item Nos. 15 and 46 in the Milans action (5:11-cv-00379). All references to this
motion will be to the most recent filing, Docket Item No. 46.
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Milans’ motion appears as Docket Item Nos. 22 and 47 in the Milans action (5:11-cv00379). As above, all references to this motion will be to Docket Item No. 47.
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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)

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As such, the court finds consolidation appropriate. The joint motion of Bernal and Rura will

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therefore be granted.

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The question that remains is whether the court should sua sponte consolidate the remaining

- with the consolidated Bernal, Rura and Milans actions.3 The court has reviewed the Complaints

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underlying these three actions and has determined they each present identical factual and legal issues

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as those raised in Bernal, Rura and Milans. The six cases also are in the same stage procedurally.

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Although the Complaint in Wizenberg has not yet been served, Netflix does not object to

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consolidation on that ground and, in fact, supports consolidation. See Def. Netflix Inc.’s Response

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to Motions to Consolidate and to Appoint Interim Lead Class Counsel, Docket Item No. 52, at p. 3.

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For the Northern District of California

three related actions - Comstock v. Netflix, Inc., Sevy v. Netflix, Inc., and Wizenberg v. Netflix, Inc.

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United States District Court

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Thus, court finds consolidation of all six related cases is appropriate as the time and effort saved

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through consolidation outweighs any potential inconvenience, delay, or expense that may result.

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Accordingly, having granted the motion to consolidate Bernal, Rura, and Milans, the court

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sua sponte consolidates Comstock, Sevy and Wizenberg with those cases, as detailed in the order

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which follows.

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II.

APPOINTMENT OF INTERIM CLASS COUNSEL

Bernal and Rura move to appoint their attorneys, Bursor & Fisher, P.A. and Faruqi & Faruqi,

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LLP, as co-lead interim class counsel. In a rival motion, Milans moves to appoint his attorney, Jay

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Edelson of Edelson McGuire, LLC as lead interim class counsel. For their part, Sevy and

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Wizenberg support the appointment of Edelson, and while Netflix takes no position on the identity

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of interim counsel, it requests the court choose one of the competing firms rather than appoint the

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three as joint counsel.

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Pursuant to Federal Rule of Civil Procedure 23(g)(3), the court “may designate interim

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counsel to act on behalf of a putative class before determining whether to certify the action as a class

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The Comstock action has been assigned case number 5:11-cv-01218 EJD. The Sevy and
Wizenberg actions are case numbers 5:11-cv-01309 EJD and 5:11-cv-01359 EJD respectively.
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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)

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action.” “Instances in which interim class counsel is appointed are those in which overlapping,

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duplicative, or competing class suits are pending before a court, so that appointment of interim

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counsel is necessary to protect the interests of class members.” White v. TransUnion, LLC, 239

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F.R.D. 681, 683 (C.D. Cal. 2006) (citing Manual for Complex Litigation (Fourth) § 21.11 (2004)).

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Although Rule 23(g)(3) does not provide a standard for appointment of interim counsel, the court

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may consider the factors contained in Federal Rule of Civil Procedure 23(g)(1). Under that section,

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the court considers: “(I) the work counsel has done in identifying or investigating potential claims in

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the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types

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of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the
resources that counsel will commit to representing the class.” Fed. R. Civ. Proc. 23(g)(1)(A). The

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For the Northern District of California

United States District Court

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court may also “consider any other matter pertinent to counsel’s ability to fairly and adequately

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represent the interests of the class.” Fed. R. Civ. Proc. 23(g)(1)(B).

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Both Bursor & Fisher, P.A. and Faruqi & Faruqi, LLP are experienced class action firms.

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See Declaration of Timothy Fisher (“Fisher Decl.”), Docket Item No. 46, at ¶ 2; see also Declaration

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of Vahn Alexander (“Alexander Decl.”), Docket Item No. 47, at ¶¶ 2, 3. Bursor & Fisher, P.A. have

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been previously appointed to represent customers of Verizon Wireless, AT&T Wireless, Cingular

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Wireless, Sprint and T-Mobile, as well we purchasers of Avacor and Xenadrine in other class action

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suites. See Fisher Decl. at ¶ 2. Faruqi & Faruqi, LLP have also served as lead or co-lead counsel in

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numerous high-profile class action cases. See Alexander Decl. at ¶ 3. For this case, the firms have

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conducted extensive investigation of the potential class action claims through document review,

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research, and interviews with potential class members. See Fisher Decl. at ¶ 4; see also Alexander

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Decl. at ¶ 4.

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Edelson McGuire, LLP is a similarly experienced class action law firm, and specializes in

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class actions relating to consumer technology and privacy issues. See Declaration of Jay Edelson,

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Docket Item No. 47, at ¶¶ 2, 6, 9. The firm maintains its own information technology practice group

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that focuses on consumer data protection, privacy and related claims. Id. at ¶ 6. Specific to this

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case, Edelson McGuire, LLP has interviewed dozens of current and former Netflix subscribers,

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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)

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analyzed Netflix’s information retention practices, and is prepared to commit significant resources to

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this litigation. Id. at ¶¶ 17, 18. The firm has also made an effort to bring together all counsel

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representing the various plaintiffs on these related cases. Id. at ¶¶ 26-33.

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Upon review of the extensive papers filed for these motions, the court finds that Jay Edelson

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of Edleson McGuire, LLP is the appropriate choice here. While the court commends all three firms

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on their impressive resumes and litigation experience, the efforts already expended by Edelson

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McGuire, LLP to identify and investigate the claims, coupled with that firm’s significant and

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particularly specialized expertise in electronic privacy litigation and class actions, renders them

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superior to represent the putative class. Accordingly, the court appoints Jay Edelson of Edelson
McGuire, LLP as Interim Class Counsel.

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For the Northern District of California

United States District Court

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III.

ORDER

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Based on the foregoing, the joint motion of Bernal and Rura to consolidate their actions with

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the Milans action is GRANTED. With these three actions, the court also sua sponte consolidates the

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Comstock, Sevy and Wizenberg actions as follows:

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The court consolidates case numbers 5:11-cv-00820 EJD, 5:11-cv-01075 EJD,

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5:11-cv-01218 EJD, 5:11-cv-01309 EJD, 5:11-cv-01359 EJD, 5:11-cv-00379 EJD

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into one action. The Clerk of the Court shall consolidate these actions such that the

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earliest-filed action, 5:11-cv-00379 EJD, is the lead case. All future filings shall be

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in 5:11-cv-00379 EJD and shall bear the caption: “In re Netflix Privacy Litigation.”

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All future related cases shall be automatically consolidated and administratively

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closed. Since the later actions are now subsumed by the first-filed action, the Clerk

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shall administratively close 5:11-cv-00820 EJD, 5:11-cv-01075 EJD, 5:11-cv-01218

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EJD, 5:11-cv-01309 EJD, and 5:11-cv-01359 EJD.

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2.

Counsel for the putative class.

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The court appoints Jay Edelson of Edelson McGuire, LLP as Interim Lead Class

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On or before September 12, 2011, Plaintiffs in In re Netflix Privacy Litigation shall
filed a Consolidated Amended Class Action Complaint.
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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)

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The courts sets a Case Management Conference in In re Netflix Privacy Litigation for

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October 7, 2011, at 9:00 a.m. The parties shall file a Joint Case Management Statement on or before

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September 27, 2011.

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This order terminates Docket Item Nos. 5 and 13 in the Bernal action (5:11-cv-00820) and

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Docket Item Nos. 15, 22, 46 and 47 in the Milans action (5:11-cv-00379).

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IT IS SO ORDERED.

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Dated: August 12, 2011
EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Vahn Alexander [e-mail]
Rafey Sarkis Balabanian [e-mail]
Jay Edelson [e-mail]
Lawrence Timothy Fisher [e-mail]
Marc Lawrence Godino [e-mail]
William C Gray [e-mail]
David Christopher Parisi [e-mail]
Sean Patrick Reis [e-mail]
Benjamin Harris Richman [e-mail]
Ari Jonathan Scharg [e-mail]
Joseph Jeremy Siprut [e-mail]
Rodney Grant Strickland, Jr [e-mail]
Sarah Nicole Westcot [e-mail]
Dale Richard Bish [e-mail]
Keith E. Eggleton [e-mail]
Suzanne L. Havens Beckman [e-mail]
Azita Moradmand [e-mail]

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Dated: August 12, 2011
For the Northern District of California

United States District Court

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Richard W. Wieking, Clerk

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By:

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/s/ EJD Chambers
Elizabeth Garcia
Courtroom Deputy

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NO. 5:11-cv-00379 EJD
ORDER GRANTING PLAINTIFFS’ MOTION TO CONSOLIDATE; APPOINTING INTERIM CLASS COUNSEL
(EJDLC1)