Chiu v. Apple, Inc

Filing 12

STIPULATION and [Proposed] Case Management Order No. 1 by Anthony Chiu. (Westerman, Jeff) (Filed on 3/9/2011)

1 2 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 APPLE, INC., a Delaware Corporation; GOGII, INC., a Delaware Corporation; PANDORA MEDIA, INC., a California CorporaCASE MANAGEMENT ORDER NUMBER 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JONATHAN LALO, individually and On Behalf of a Class of Similarly Situated Individuals, Plaintiff, v.

Case No. CV-10-5878 LHK (PSG) STIPULATION AND [Proposed] CASE MANAGEMENT ORDER NO. 1

APPLE INC, a California Corporation; BACKFLIP, a Delaware Corporation; DICTIONARY.COM, a California Corporation; PANDORA, INC., a California Corporation; THE WEATHER CHANNEL, a Georgia Corporation, Defendants. DUSTIN FREEMAN, JARED PARSLEY, COLE PARR, and PRECIOUS ARRINGTON, on behalf of themselves and all similarly situated, Plaintiffs, v. Case No. CV-10-5881 LHK (PSG)

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tion; BACKFLIP STUDIOS, INC., a Delaware Corporation; THE WEATHER CHANNEL, INC., a Georgia Corporation; DICTIONARY.COM, LLC., a California Corporation; OUTFIT7 LTD, a Foreign Corporation; ROOM CANDY, INC., a California Corporation; SUNSTORM INTERACTIVE, Inc., an Indiana Corporation, Defendants.

ANTHONY CHIU, individually and on behalf Case No. CV-11-0407 LHK of all others similarly situated, Plaintiff, v. APPLE, INC., a California Corporation, and DOES 1 to 50 inclusive, Defendants. DANIEL RODIMER, et al. Case No. CV-11-0700 PSG

14 Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] CASE MANAGEMENT ORDER NUMBER 1 Subject to the Court's review and approval, IT IS HEREBY STIPULATED AND AGREED AND ORDERED as follows: WHEREAS, the related actions Lalo, et al. v. Apple Inc., et al., CV-10-5878-LHK; Freeman, et al. v. Apple Inc., et al., CV-10-5881-LHK, Chiu v. Apple, Inc., et al., CV-11-0407LHK and Rodimer v. Apple, Inc., et al., CV 11-0700 PSG (collectively, the "Actions") are pending before this Court; and,
CASE MANAGEMENT ORDER NUMBER 1

v. APPLE, INC., FLURRY, INC., MEDIALETS, INC., PINCH MEDIA, INC., QUATTRO WIRELESS, INC., IAC/INTERACTIVE CORP., DICTIONARY.COM, PANDORA, INC., and THE WEATHER CHANNEL Defendants.

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WHEREAS, counsel for the various plaintiffs have each concluded that it is in the best interests of the respective parties and absent putative class members that the above-captioned actions be consolidated for all purposes and proceed as contemplated herein; and, WHEREAS, all parties that have appeared, through their respective counsel have stipulated to the terms provided herein; WHEREAS, it is anticipated that additional related actions may be transferred to, removed to, or filed in this Court; and, WHEREAS, the existence of common questions of law and fact in the Actions now pending before this Court, the interests of fair and efficient administration of the Actions, the avoidance of unnecessary duplicative efforts and the avoidance of inconsistency in outcomes, warrants the consolidation of the Actions, establishment of an organizational structure for plaintiffs' counsel, and the setting of a status conference to discuss, among other things, schedules for the filing of pleadings, motion practice and discovery, and good cause appearing therefore: IT IS HEREBY ORDERED AS FOLLOWS: I. 1. CONSOLIDATION AND TREATMENT OF SUBSEQUENT ACTIONS The Court finds that Lalo, et al. v. Apple Inc., et al., CV-10-5878-LHK; Free-

man, et al. v. Apple Inc., et al., CV-10-5881-LHK, Chiu v. Apple, Inc., CV-11-0407-LHK and Rodimer, et al. v. Apple, Inc., et al. CV-11-0700-PSG present substantially similar issues of law and fact, have been previously related, and are hereby consolidated into Lalo, et al. v. Apple Inc., et al., CV-10-5878, and are referred to herein as the Consolidated Action. Each document filed by a party to this litigation shall bear the following caption: ____________________________________ In re iPhone Application Litigation ____________________________________ 2. The terms of this Order shall apply to the Consolidated Action and to any and all No. CV-10-5878 LHK (PSG)

actions later instituted in, removed to, or transferred to this Court that involve the same or substantially similar issues of law and fact, subject to the following procedures:
CASE MANAGEMENT ORDER NUMBER 1

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a.

When such a case is filed in, removed to, or transferred to this Court, the

Clerk of Court shall: (1) (2) place a copy of this Order in the separate file for such action; provide a copy of this Order by mail or electronically pursuant to the

local rules to counsel for plaintiff(s) in the newly filed or transferred action and to any defendant(s) in the newly filed or transferred action; and (3) b. make an appropriate entry on the docket for the Consolidated Action.

Each new case that arises out of the subject matter of the Consolidated Action

which is filed in this Court or transferred to this Court, shall be consolidated with the Consolidated Action and this Order shall apply thereto, unless a party in such newlyfiled or transferred action objects to consolidation, as provided for herein, or any provision of this order, within ten (10) days after the date upon which a copy of this Order is served on counsel for such party, by filing an application for relief and this Court deems it appropriate to grant such application. 3. Counsel shall call to the attention of the Court and the Clerk the filing or trans-

fer of any case that might properly be consolidated with the Consolidated Action. Mailing or other delivery of a copy of this Order by Defendants' counsel or Plaintiffs' Interim Class Counsel (see II. Below), as appropriate, to the counsel in any newly filed or transferred actions shall constitute valid notice thereof for purposes of establishing its applicability to such action in accordance herewith. II. 1. ORGANIZATION OF PLAINTIFFS' COUNSEL Plaintiffs shall use their best efforts to self-organize and recommend to the Such recommendation

Court counsel to serve as Interim Class Counsel under FRCP 23(g).

shall be submitted to the Court with papers supporting the qualifications for such Interim Class Counsel within ten days of the entry of this Order. Any Plaintiff may oppose such recommendation by filing an opposition within 10 days of notice of consolidation of their case or the filing of said recommendation, whichever is later.

CASE MANAGEMENT ORDER NUMBER 1

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1 2 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 duties:

2.

Interim Class Counsel, acting on behalf of Plaintiffs, shall have the following

a.

To coordinate all proceedings, including preparing, structuring, and presenting pretrial and other management related orders;

b. c.

To encourage full cooperation and efficiency among all counsel; To create any necessary committees and appoint committee chairs and otherwise delegate responsibilities for specific tasks in a manner to assure that pretrial and trial preparation is conducted effectively, efficiently, and economically;

d.

To delegate work responsibilities and monitor the activities of counsel to assure that schedules are met and unnecessary expenditures of time and expense are avoided;

e. f.

To act as spokespersons at all court conferences; To call meetings of themselves and/or other counsel as appropriate or necessary from time to time;

g.

To initiate and conduct settlement negotiations with counsel for the various Defendants;

h.

To determine Plaintiffs' position on all matters arising during this litigation (after such consultation with other counsel as they deem appropriate) and present such position orally and/or in writing to the Court and opposing parties;

i. j. k. l.

To consult with and employ experts, as necessary; To initiate, coordinate and conduct discovery; To represent Plaintiffs at trial and on any appeal of this matter; To negotiate and execute agreements with local counsel or other cooperating attorneys;

CASE MANAGEMENT ORDER NUMBER 1

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m.

To determine the appropriate fee allocation among Plaintiffs' counsel as they contributed to resolution or otherwise provided benefit to the class; and

n.

To perform such other duties as are necessary in connection with the prosecution of this litigation.

3.

Interim Class Counsel shall be the contact between Plaintiffs' counsel

and Defendant's counsel as well as the spokesperson for Plaintiffs' counsel. All agreements reached with the Interim Class Counsel shall be binding on all other Plaintiffs' counsel in the Consolidated Action. 4. Interim Class Counsel are hereby designated as the counsel for Plaintiffs

in the Consolidated Action upon whom all notices, orders, pleadings, motions, discovery, and memoranda relating to the Consolidated Action shall be served, and Defendants shall effect service of papers on Plaintiffs in the Consolidated Action by serving Interim Class Counsel. 5. No motion or request for discovery shall be served or filed by Plaintiffs,

or other pretrial proceedings initiated by Plaintiffs, except by or with the authorization of Interim Class Counsel. 6. The organizational structure set forth in this section applies to all Plain-

tiffs' counsel in the Consolidated Action, including any action subsequently governed by this Order. 7. No communications among Plaintiffs' counsel shall be taken as a waiver

of any privilege or protection to which they would otherwise be entitled. III. FILING OF PLEADINGS

Within 30 days of appointment by the Court, Interim Class Counsel shall file an amended consolidated pleading. Defendants' shall move or respond to the consolidated complaint within 45 days thereafter. If defendants shall move to dismiss, Interim Class Counsel shall have 30 days to respond and Defendants shall have 20 days thereafter to file a reply. Defendants shall have no obligation to respond to any prior filed pleading in the actions consolidated herein. No other deadlines shall be superseded by entry of this Order.
CASE MANAGEMENT ORDER NUMBER 1

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IV.

STATUS CONFERENCE

The Case Management Conference previously set by Court for April 6, 2011 shall remain on calendar as a status conference, and not the Initial Case Management Conference contemplated by Civil Local Rule 16-2. In advance of the April 6 status conference, the parties will meet and confer concerning a schedule for the Initial Case Management Conference and related matters and will either present a proposed schedule to the Court or present their respective positions for resolution by the Court at the April 6 status conference. V. MODIFICATION OF THIS ORDER

This Order may be modified, supplemented, or superseded by order o the Court or upon any party for good cause shown. Dated: March 3, 2011 KAMBERLAW, LLP

By: ____s/Avi Kreitenberg_______________ Avi Kreitenberg One of the Attorneys for Plaintiff Lalo, Individually, and on Behalf of a Class of Similarly Situated Individuals SCOTT A. KAMBER (admitted pro hac vice) DAVID A. STAMPLEY (admitted pro hac vice) [e-mail] [e-mail] KAMBERLAW, LLC 100 Wall Street, 23nd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] AVI KREITENBERG KAMBERLAW, LLP 1180 South beverly Drive, Suite 601 Los Angeles, CA 90035 Telephone: [phone] Facsimile: 1.310.400.1056

CASE MANAGEMENT ORDER NUMBER 1

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1 2 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 JEFF S. WESTERMAN SABRINA S. KIM [e-mail] [e-mail] MILBERG LLP One California Plaza 300 South Grand Avenue, Ste 3900 Los Angeles, California 90071 Telephone: [phone] Facsimilie: [phone]
CASE MANAGEMENT ORDER NUMBER 1

PARISI & HAVENS LLP

Dated: March 3, 2011

By: ____s/David C. Parisi________________ DAVID C. PARISI One of the Attorneys for Plaintiff Freeman, Individually and on Behalf of a Class of Similarly Situated Individuals

DAVID C. PARISI [e-mail] PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone [phone] Facscimile [phone] JEREMY R. WILSON [e-mail] WILSON TROSCLAIR & LOVINS 302 N. Market St., Suite 501 Dallas, Texas 75202 Telephone: [phone] NABIL MAJED NACHAWATI, II [e-mail] FEARS NACHAWATI 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 Telephone: [phone] Facsimile: [phone] MILBERG LLP

Dated: March 7, 2011

By: _____s/Jeff S. Westerman_____________ Jeff S. Westerman One of the Attorneys for Plaintiff Chiu, Individually, and on Behalf of a Class of Similarly Situated Individuals

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CASE MANAGEMENT ORDER NUMBER 1

AUDET & PARTNERS LLP

Dated: March 4, 2011

By: ___s/William M. Audet________________ William M. Audet One of the Attorneys for Plaintiff Rodimer, Individually, and on Behalf of a Class of Similarly Situated Individuals

WILLIAM M. AUDET JONAS P. MANN MICHAEL A. MCSHANE [e-mail] [e-mail] [e-mail] AUDET & PARTNERS LLP 221 Main Street, Suite 1460 San Francisco, California 94105 Telephone: [phone] Facscimile: [phone] JOSEPH H. MALLEY [e-mail] LAW OFFICE OF JOSEPH H. MALLEY 1045 North Zang Blvd. Dallas, Texas 75208 Telephone: [phone] RICHARD A. LOCKERIDGE ROBERT K. SHELQUIST [e-mail] [e-mail] Lockridge Grindal Nauen P.L.L.P. 100 Washington Ave., S., Suite 2200 Minneapolis, MN 55401 Telephone [phone] Facsimile [phone] ATTORNEYS FOR PLAINTIFFS

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1 2 3 Dated: March 4, 2011 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 MICHAEL G. RHODES [e-mail] MICHAEL D. BROWN [e-mail] COOLEY LLP 101 California Street, 5th Fl San Francisco, CA 94111
CASE MANAGEMENT ORDER NUMBER 1

HOGAN LOVELLS US LLP

By: ____s/Michael L. Charlson_____________ Michael L. Charlson On Behalf of Defendant Apple, Inc.

MICHAEL L. CHARLSON (Cal. Bar No. 122125) HOGAN & HARTSON [e-mail] 525 University Avenue, 4th Fl Palo Alto, CA 94301 Telephone: [phone] Facsimile: [phone] CHRISTOPHER WOLF (Admitted Pro Hac Vice) HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: [phone] CLAYTON C. JAMES (Admitted Pro Hac Vice) HOGAN LOVELLS US LLP One Tabor Center 1200 Seventeenth Street Denver, CO 80204 Telephone: [phone] ATTORNEYS FOR DEFENDANT APPLE, INC.

COOLEY LLP

Dated: March 7, 2011

By: ___s/Michael G. Rhodes_____________ Michael G. Rhodes On Behalf of Defendants Backflip Studios, The Weather Chanel, and Medialets

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Telephone: Facsimile:

[phone] [phone]

ATTORNEYS FOR DEFENDANTS BACKFLIP STUDIOS, THE WEATHER CHANNEL, AND MEDIALETS DURIE TANGRI LLP

Dated: March 4, 2011

By: ___s/Michael H. Page________________ Michael H. Page On Behalf of Defendant Pandora, Inc., IAC/Interactive Corp., Dictionary.com, LLC and Yelp

MICHAEL H. PAGE JOSEPH C. GRATZ [e-mail] [e-mail] DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT PANDORA, INC., IAC/INTERACTIVE CORP., DICTIONARY.COM, LLC AND YELP

CASE MANAGEMENT ORDER NUMBER 1

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1 2 3 Dated: March 8, 2011 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
CASE MANAGEMENT ORDER NUMBER 1

SHEPPARD MULLIN RICHTER & HAMPTON LLP

By: _____s/Sacha Von Mende Henry_______ Sascha Von Mende Henry On behalf of Defendant Gogii, Inc.

SASCHA VON MENDE HENRY JONATHAN D. MOSS [e-mail] [e-mail] SHEPPARD MULLIN RICHTER & HAMPTON LLP 333 South Home Street, 43d Fl Los Angeles, CA 90071-1422 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT GOGII, INC.

FENWICK & WEST LLP

Dated: March 9, 2011

By: ___s/Laurence F. Pulgram______________ Laurence F. Pulgram On Behalf of Defendant Groupon, Inc.

LAURENCE F. PULGRAM [e-mail] FENWICK & WEST LLP 555 California Street, 12th Fl San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT GROUPON, INC.

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CASE MANAGEMENT ORDER NUMBER 1

SHERMAN & STERLING LLP

Dated: March 9, 2011

By: __s/James Donato____________________ James Donato On Behalf of Defendant Webmd Health Services Group, Inc

JAMES DONATO [e-mail] SHERMAN & STERLING LLP 515 Market Street San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT WEBMD HEALTH SERVICES GROUP, INC.

PURSUANT TO THE STIPULATION, IT IS SO ORDERED.

Dated:_________________

____________________________________ UNITED STATES DISTRICT COURT JUDGE

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