Ung et al v. Facebook, Inc.

Filing 34

MOTION to Appoint Counsel Plaintiffs' Motion To Designate Interim Class Counsel filed by Chi Cheng, Alice Rosen, Ryan Ung. (Westerman, Jeff) (Filed on 10/28/2011)

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Jeff S. Westerman (SBN 94559)
Sabrina S. Kim (SBN 186242)
MILBERG LLP
One California Plaza
300 South Grand Avenue, Suite 3900
Los Angeles, CA 90071
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiffs
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[Additional Counsel on Signature Page]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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RYAN UNG, CHI CHENG, and ALICE ROSEN,
on Behalf of Themselves and All Others Similarly
Situated,
Plaintiffs,

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v.

Case No. CV-11-02829-JSW
PLAINTIFFS’ MOTION TO
DESIGNATE INTERIM CLASS
COUNSEL
FED R. CIV. P. 23(g)(3)

FACEBOOK, INC.,
Defendants

Date: February 3, 2012
Time: 9:00 a.m.
Judge: Jeffrey S. White
Courtroom 11

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PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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TABLE OF CONTENTS

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Page
TABLE OF AUTHORITIES ....................................................................................................... ii

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I.

INTRODUCTION ............................................................................................................. 2

II.

MILBERG AND REESE RICHMAN SHOULD BE DESIGNATED AS
INTERIM CLASS COUNSEL .......................................................................................... 3

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A.

Legal Standards for Designation Under Rule 23(g) .............................................. 3

B.

Milberg and Reese Richman Satisfy The Requirements of Rule
23(g)(1)(A)............................................................................................................. 4

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1.

Milberg and Reese Richman Have Taken Steps to Expedite the
Action......................................................................................................... 4

2.

Milberg and Reese Richman Have Extensive Consumer and Other
Complex Class Action Experience ............................................................ 5

3.

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Milberg and Reese Richman Have Committed, and Will Continue
to Commit, Significant Resources on Behalf of the Class......................... 9

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III.

CONCLUSION................................................................................................................ 11

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-iPLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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TABLE OF AUTHORITIES

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Page(s)

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REPORTED CASES

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Branick v. Downey Sav. & Loan Ass’n,
39 Cal. 4th 235 (2006) ...............................................................................................................6

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Chin v. RCN Corp.,
No. 08-7349, 2010 U.S. Dist. LEXIS 96302 (S.D.N.Y. Sept. 8, 2010).....................................8
Four in One Co. v. SK Foods, L.P.,
No. 08-3017, 2009 U.S. Dist. LEXIS 28657 (E.D. Cal. Mar. 19, 2009) ...................................3
Jordan v. Cnty. of L.A.,
669 F.2d 1311 (9th Cir. 1980), vacated on other grounds, 459 U.S. 810 (1982)......................4
Masters v. DirecTV, Inc.,
No. 08-55825, 2009 U.S. App. LEXIS 25479 (9th Cir. Nov. 19, 2009) ...................................8
Parkinson v. Hyundai Motor Am.,
No. 06-345, 2006 U.S. Dist. LEXIS 59055 (C.D. Cal. Aug. 7, 2006).......................................3
Pioneer Elecs. (USA) Inc. v. Super. Ct. (Olmstead),
40 Cal. 4th 360 (2007) ...............................................................................................................6
In re Terazosin Hydrochloride Antitrust Litig.,
220 F.R.D. 672 (S.D. Fla. 2004)................................................................................................5
Waudby v. Verizon Wireless Servs., LLC,
248 F.R.D. 173 (D.N.J. 2008)....................................................................................................3
DOCKETED CASES
Ackerman v. Coca-Cola Co.,
No. 09-CV-0395 (JG) (RML) (E.D.N.Y.) .................................................................................8
All-Star Carts & Vehicles Inc. v. BFI Canada Income Fund,
No. 08-CV-1816 LDW (E.D.N.Y.)............................................................................................9
In re Am. Express Fin. Servs. Sec. Litig.,
No. 04-CV-1773 (S.D.N.Y.)......................................................................................................8
Chin v. RCN Corp.,
No. 08-cv-7349 RJS (S.D.N.Y.) ................................................................................................8
In re DoubleClick Inc. Privacy Litig.,
Master File No. 00-CIV-0641 (NRB) (S.D.N.Y.) .....................................................................6

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- ii PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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Fink v. Time Warner Cable,
No. 08-cv-9628 LTS (S.D.N.Y.)................................................................................................9
Gaines v. Home Loan Ctr. Inc.,
No. 08-CV-667 DOC (C.D. Cal.) ..............................................................................................8
In re iPhone Application Litig.,
No. 11-MD-02250 (LHK) (N.D. Cal.).......................................................................................6
Kastin v. AMR Corp.,
No. 06-CV-5726 (S.D.N.Y.)......................................................................................................9
Messick v. Pioneer Elecs. (USA), Inc.,
No. BC 323499 (Cal. Super. Ct. L.A. Cnty. 2007)....................................................................5
Mikhail v. Toshiba Am. Info. Sys., Inc.,
No. BC 278163 (Cal. Super. Ct. L.A. Cnty. 2005)....................................................................5
Murphy v. DirecTV, Inc.,
No. 07-CV-06545 FMC (C.D. Cal.) ..........................................................................................9
In re NVIDIA GPU Litig.,
No. 08-04312 (N.D. Cal. 2010) .............................................................................................5, 6
In re Orbitz Taxes and Fees Litig.,
No. 05 CH 00442 (Cook Cnty., Ill.) ..........................................................................................9
In re Sears Roebuck and Co. Sec. Litig.,
No. 02-CV-07527 (N.D. Ill.) .....................................................................................................8

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Serrano v. Cablevision Sys. Corp.,
No. 09-CV-1056 DI (E.D.N.Y.) ................................................................................................9
Siemers v. Wells Fargo, Inc.,
No. 05-CV-4518 (WHA) (N.D. Cal.) ........................................................................................8
Spahn v. Edward D. Jones & Co. L.P.,
04-CV-0086-HEA (E.D. Mo.) ...................................................................................................8

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Tan v. Comcast Corp.,
No. 2:08-cv-02735 LDD (E.D. Pa.)...........................................................................................9
Yoo v. Wendy’s Int’l, Inc.,
No. 07-CV-04515 FMC (C.D. Cal.) ..........................................................................................7
Young v. Wells Fargo & Co.,
No. 08-cv-507 (S.D. Iowa) ........................................................................................................9

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- iii PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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OTHER AUTHORITIES

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Fed. R. Civ. P. 23(g) .............................................................................................................. passim

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Fed. R. Civ. P. 23 Advisory Committee Notes (2003) ....................................................................3

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- iv PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE THAT on Feb. 3, 2012 at 9:00 a.m. or as soon thereafter as

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counsel may be heard by the above-captioned Court, located at 450 Golden Gate Avenue, 19th

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Floor, San Francisco, CA 94102, in the courtroom of Judge Jeffrey S. White, Plaintiffs Ryan

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Ung, Chi Cheng, and Alice Ryan will and hereby do move the Court for an order designating

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Milberg LLP (“Milberg”) and Reese Richman LLP (“Reese Richman”) as interim class counsel

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pursuant to Fed. R. Civ. P. 23(g)(3).

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This motion is based on the accompanying Memorandum of Law and Declaration of Jeff

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S. Westerman, the pleadings and papers on file herein, and upon such matters as may be

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presented to the Court at the time of the hearing.

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STATEMENT OF RELIEF SOUGHT

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Plaintiffs Ryan Ung, Chi Cheng and Alice Rosen seek an order pursuant to Federal Rule

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of Civil Procedure 23(g)(3) designating Milberg LLP and Reese Richman LLP as interim class

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counsel.
STATEMENT OF ISSUE TO BE DECIDED

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Do Milberg LLP and Reese Richman LLP meet the Federal Rule of Civil Procedure
23(g)(3) requirements for designation as interim class counsel?

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-1PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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Plaintiffs commenced this class action on behalf of Internet users against Facebook, Inc.

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in the Superior Court of California, County of Santa Clara on May 9, 2011. Defendant removed

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the action to the Northern District of California on June 9, 2011. Dkts. # 1 and 4. The case was

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reassigned to the Hon. Jeremy Fogel on June 21, 2011 (Dkt. # 25) and reassigned to this Court

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on September 27, 2011.

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Facebook’s use of the Facebook “Like” button and Facebook Connect to track Internet users as

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they browse the Internet and collect and store their sensitive, private, and personally identifiable

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information. Plaintiffs assert two claims against Facebook -- a claim for violation of the right to

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privacy in the California Constitution and a claim for unjust enrichment.

Dkt. # 25.

The Complaint alleges privacy violations related to

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Defendant moved to dismiss the Complaint on July 20, 2011 (Dkt. # 10), and the motion

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has been fully briefed. Dkts. # 16 and 31. Defendant noticed the motion for Dec. 2, 2011 (Dkt.

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# 33) and the Court has scheduled an initial case management conference for Dec. 16, 2011.

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Dkt. # 30.

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As detailed herein, Milberg and Reese Richman should be designated interim lead
counsel for the following reasons:
(i)

Milberg and Reese Richman extensively researched this action and consulted with

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industry experts before filing Plaintiffs’ complaint, and have continued their development of the

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case in consultation with industry experts and in-house professionals.

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(ii)

Milberg has a decades-long history of successfully prosecuting consumer class

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actions and Milberg and Reese Richman have extensive experience in the niche areas of

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consumer and Internet litigation.

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(iv)

Milberg and Reese Richman have substantial experience with privacy-related

consumer litigations such as this one.
(v)

Milberg and Reese Richman have California offices and the firms have the

resources and staying power required to obtain the best results for the class.
(vi)

Milberg and Reese Richman otherwise meet the criteria for Rule 23(g).
-2PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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As Interim Class Counsel, Milberg and Reese Richman would foster the efficient and

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orderly handling of the litigation and secure the best possible representation for the proposed

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class. Accordingly, Milberg and Reese Richman should be appointed interim class counsel.

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ARGUMENT
II.

MILBERG AND REESE RICHMAN SHOULD BE DESIGNATED AS
INTERIM CLASS COUNSEL
A.

Legal Standards for Designation Under Rule 23(g)

Under Federal Rule of Civil Procedure 23(g)(3), a “court may designate interim counsel
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to act on behalf of the putative class before determining whether to certify the action as a class
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action.” Although the rule states the court “may” designate an interim counsel, courts that have
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construed Rule 23(g)(3) have relied on the Advisory Committee Notes (hereafter, “Notes”)
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accompanying the rule to hold that interim counsel should be designated when necessary to
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protect the interests of the putative class. See, e.g., Parkinson v. Hyundai Motor Am., No. 0613
345, 2006 U.S. Dist. LEXIS 59055, at *5 (C.D. Cal. Aug. 7, 2006).

Further, the Notes

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contemplate that “[t]ime may be needed to explore designation of counsel under Rule 23(g)” and
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recognize “that in many cases the need to progress toward the certification determination may
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require designation of interim class counsel.” Fed. R. Civ. P. 23 Notes (2003).
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While neither Rule 23(g) nor the Notes explicitly set forth the standards to be applied in
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choosing Interim Class Counsel, courts have held that the same factors that apply in choosing
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class counsel at the class certification stage apply in choosing interim class counsel. See Four in
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One Co. v. SK Foods, L.P., No. 08-3017, 2009 U.S. Dist. LEXIS 28657, at *7-8 (E.D. Cal. Mar.
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19, 2009) (“Courts have held that the same standards applicable to choosing class counsel at the
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time of class certification apply in choosing interim class counsel.”) (quoting In re Air Cargo
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Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006)); see also Waudby v. Verizon
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Wireless Servs., LLC, 248 F.R.D. 173, 175 (D.N.J. 2008); Parkinson, 2006 U.S. Dist. LEXIS
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59055, at *6 (“Rule 23(g) provides criteria to consider when appointing class counsel, without
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distinguishing interim counsel. Presumably the same factors apply, however.”).
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-3PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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Fed. R. Civ. P. 23(g)(1)(A) specifies that in designating class counsel the court must

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consider:

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(i)

the work counsel has done in identifying or investigating potential claims in the

(ii)

counsel’s experience in handling class actions, other complex litigation, and the

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action;

types of claims asserted in the action;

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(iii)

counsel’s knowledge of the applicable law; and

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(iv)

the resources that counsel will commit to representing the class.

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In general, a class is fairly and adequately represented where counsel is qualified,

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experienced and generally capable of conducting class action litigation. Jordan v. Cnty. of L.A.,

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669 F.2d 1311 (9th Cir. 1980), vacated on other grounds, 459 U.S. 810 (1982).

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considerations set forth below in detail support the designation of Plaintiffs’ chosen counsel as

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interim class counsel.

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B.

The

Milberg and Reese Richman Satisfy The Requirements of Rule
23(g)(1)(A)
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Milberg and Reese Richman Have Taken Steps to Expedite the
Action

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Pursuant to Rule 23(g)(1)(A), a court, in selecting interim class counsel, must consider

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“the work counsel has done in investigating potential claims in the action.” Unlike other privacy-

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related litigation that is commenced following media or regulatory exposure of wrongful

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conduct, Milberg and Reese Richman conducted extensive proprietary investigation in

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consultation with experts of the mechanisms through which Facebook unlawfully tracked

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Internet users. This was followed by extensive legal research, resulting in Milberg’s filing of the

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Complaint on May 9, 2011.

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Defendant filed its motion to dismiss on July 20, 2011 (Dkt. # 10). On September 1,

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2011, Milberg and Reese Richman filed a thoroughly researched response.

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Defendant has noticed a Dec. 2, 2011 hearing date on the motion and the Court has scheduled an

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initial case management conference for Dec. 16, 2011.

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-4PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

Dkt. # 16.

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2.

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Milberg and Reese Richman Have Extensive Consumer and
Other Complex Class Action Experience

The second and third Rule 23(g)(1)(A) factors (which courts consider together because of
their overlap) are “counsel’s experience in handling class actions, other complex litigation, and
the types of claims asserted in the action” and “counsel’s knowledge of the applicable law,” and
have been noted as most persuasive factors in choosing lead counsel.

Fed R. Civ. P.

23(g)(1)(A)(ii) and (iii); see also In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672,
702 (S.D. Fla. 2004) (explaining that the “most persuasive” factor in choosing lead counsel
pursuant to Rule 23(g) is proposed counsel’s “experience in, and knowledge of, the applicable
law in [the] field.”). Milberg and Reese Richman easily satisfy these factors.

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a.
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Milberg has, for decades, represented plaintiffs in consumer and shareholder class actions
and other complex litigation such as mass torts and antitrust, achieving recoveries of more than
$55 billion since the firm’s inception. See Westerman Decl. Ex. A (firm résumé).1

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Milberg has successfully prosecuted a number of consumer class actions in this District
and other California courts, including: In re NVIDIA GPU Litig., No. 08-04312 (N.D. Cal. 2010)
(settlement for repair or replacement of computers); Messick v. Pioneer Elecs. (USA), Inc., No.
BC 323499 (Cal. Super. Ct. L.A. Cnty. 2007) (settlement for new firmware upgrade or refund of
monies previously paid for said upgrades); and Mikhail v. Toshiba Am. Info. Sys., Inc., No. BC
278163 (Cal. Super. Ct. L.A. Cnty. 2005) (settlement for payment or voucher for defective
laptop computer).

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Milberg

Milberg has served in pioneering leadership roles in numerous high-profile, privacyrelated litigations. Milberg was Co-Lead Settlement Counsel in an early privacy class action
against DoubleClick in 2000, which alleged that the company had placed web cookies on
computer hard drives of Internet users who accessed DoubleClick-affiliated web sites, in
violation of three federal laws: the Stored Communications Act (“SCA”), the Wiretap Statute,

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“Westerman Decl.” refers to the Declaration of Jeff S. Westerman dated October 28, 2011, that
is filed with this motion.
-5PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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and the Computer Fraud and Abuse Act. In re DoubleClick Inc. Privacy Litig., Master File No.

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00-CIV-0641 (NRB) (S.D.N.Y.). The case settled, and as a part of the settlement agreement

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negotiated by Milberg and other plaintiffs’ counsel, DoubleClick agreed to explain its privacy

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policy in “easy-to-read” language; conduct a public information campaign consisting of 300

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million banner ads inviting consumers to learn more about protecting their privacy; and institute

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data purging and opt-in procedures among other requirements. Milberg was instrumental in

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settling that privacy class action and coordinated with 31 plaintiffs’ law firms that represented

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plaintiffs. Milberg and Reese Richman also litigated a similar privacy case against MySpace,

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Inc., relating to the unauthorized transmission of personal identifiable information (“PII”) to

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third parties. Milberg is currently a member of the Plaintiffs’ Executive Committee in In re

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iPhone Application Litig., No. 11-MD-02250 (LHK) (N.D. Cal.).

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Milberg’s California partner on this case, Jeff S. Westerman, is well-qualified to lead it.

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Mr. Westerman was the partner in charge of the NVIDIA GPU Litigation, which received final

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settlement approval in December 2010, and as reflected in his accompanying biography, is active

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in complex litigation in California and moderates and speaks on panels of lawyers and judges on

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the topic as a past Chair and panelist of the L.A. County Bar Complex Court Symposium

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Program.

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California partner on leave, but available for consultation, is a former California Deputy

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Attorney General for the Consumer Law Section and has extensive experience in public and

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private prosecution of consumer actions. Ms. Kim, along with Mr. Westerman, were two of the

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principal attorneys responsible for two major California Supreme Court consumer class action

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rights cases (both 7-0 in favor of consumers) involving class action procedure: Pioneer Elecs.

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(USA) Inc. v. Super. Ct. (Olmstead), 40 Cal. 4th 360 (2007) and Branick v. Downey Sav. & Loan

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Ass’n, 39 Cal. 4th 235 (2006).

(See Westerman Decl. Ex. B: Complex Court Symposium.) Sabrina S. Kim, a

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With more than 40 years of experience litigating hundreds of complex litigation actions,

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Milberg is well qualified to serve as Interim Class Counsel. In 2009 and 2010 the National Law

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Journal acknowledged Milberg’s “exemplary, cutting-edge work” by including the firm in its

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prestigious 2010 Plaintiffs’ Hot List. (See Westerman Decl. Ex. C: Plaintiffs’ Hot List 2010 and
-6PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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2009.) Milberg is consistently ranked at the top of the field of class action litigation in the

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securities field by RiskMetrics Group’s Securities Class Action Services (“SCAS”). On March

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21, 2011, SCAS ranked Milberg as one of the top firms, with settlements totaling approximately

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$137.5 million achieved in 2010, and also recognized Milberg as one of the top-five firms in the

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nation for number of settlements achieved (nine), in its “Top SCAS 50 for 2010” list. Milberg

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had previously been recognized by SCAS for top lead counsel participation with 28 total

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settlements in the top 100 securities class action settlements of all time. The previous SCAS

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report for 2009 ranked Milberg as one of the top-50 plaintiffs’ firms, with settlements totaling

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$1.44 billion and averaging $144 million per settlement, and also recognized Milberg as one of

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the top-five firms in the nation for number of settlements achieved (ten). (See Westerman Decl.

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Ex. D: SCAS Reports.) In 2010, Law360 selected Milberg as one of its “plaintiff-side securities

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firms of the year,” citing the firm’s $586 million recovery in the Initial Public Offering

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Litigation, among other significant accomplishments. (See Westerman Decl. Ex. E: “Plaintiffs

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Securities Firms Of The Year,” Law360, Jan. 1, 2010.)

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As reported by Law360 in September 2010, Milberg was one of the few plaintiffs’ law

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firms recognized as an “awesome opponent” in a survey of corporate counsel conducted for BTI

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Consulting Group’s 2011 Litigation Outlook report.

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corporate counsel about which firms they feel are the most formidable litigation opponents,

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revealed that corporate counsel view Milberg as “[one of the law firms] they prefer to steer clear

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of in litigation.” Milberg has for decades represented plaintiffs in class actions and complex

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litigation in the fields of consumer protection, privacy, securities, shareholder rights, and mass

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torts, achieving recoveries of more than $55 billion since the firm’s inception. See Westerman

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Decl. Ex. A (firm résumé). The legal community has long recognized Milberg’s outstanding

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results in these areas.

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b.

The survey, which questioned 240

Reese Richman

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The attorneys of Reese Richman have represented consumers, investors, and employees

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in a wide-array of class action litigation throughout the nation. See Westerman Decl. Ex. F (firm

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résumé). For example, in Yoo v. Wendy’s International, Inc., No. 07-cv-04515 FMC (C.D. Cal.),
-7PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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a class action for violation of California’s consumer protection laws, Mr. Reese was appointed

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class counsel by the court and commended on achieving a settlement that eliminated trans fats

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from a popular food source. The court noted that counsel “conducted the litigation and achieved

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the Settlement with skill, perseverance and diligent advocacy.” In Chin v. RCN Corp., No. 08-

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cv-7349 RJS (S.D.N.Y.), a class action against an Internet Service Provider (ISP) for its practice

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of “throttling” (i.e., limiting) its customers’ Internet access, Mr. Reese was appointed class

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counsel and commended after achieving a settlement that provided for an injunction of the

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adverse network management practice. See Chin v. RCN Corp., No. 08-7349, 2010 U.S. Dist.

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LEXIS 96302 (S.D.N.Y. Sept. 8, 2010) (stating, in regard to Rule 23 requirements, that “class

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counsel is qualified, experienced, and able to conduct the litigation.”).

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Victories by Mr. Reese on behalf of investors include Siemers v. Wells Fargo, Inc.,

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No. 05-CV-4518 (WHA) (N.D. Cal.), a class action for violation of §10(b) of the Securities

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Exchange Act of 1934, which resulted in settlement soon after the class was certified; In re Sears

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Roebuck and Co. Securities Litigation, No. 02-CV-07527 (N.D. Ill.), which resulted in a $215

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million recovery for shareholders; and In re American Express Financial Services Securities

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Litigation, No. 04-CV-1773 (S.D.N.Y.), and Spahn v. Edward D. Jones & Co. L.P., 04-CV-

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0086-HEA (E.D. Mo.), both of which were actions against brokerages for alleged receipt of

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kickbacks from mutual fund companies that resulted in settlements of $100 million and $127.5

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million, respectively.

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Mr. Reese also has had great success at the appellate level advocating for consumers and

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investors. In Masters v. DirecTV, Inc., Mr. Reese successfully litigated before the Court of

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Appeals for the Ninth Circuit that California laws can apply to consumers nationwide when the

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defendant corporation is headquartered within the state. See Masters v. DirecTV, Inc., No. 08-

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55825, 2009 U.S. App. LEXIS 25479 (9th Cir. Nov. 19, 2009).

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Other cases litigated by the attorneys of Reese Richman include: Ackerman v. Coca-Cola

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Co., No. 09-CV-0395 (JG) (RML) (E.D.N.Y.), a class action for violation of California’s and

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New York’s consumer protection laws; Gaines v. Home Loan Center Inc., No. 08-CV-667 DOC

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(C.D. Cal.), a class action for violation of the Racketeer Influenced and Corrupt Organizations
-8PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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(RICO) Act; Tan v. Comcast Corp., No. 2:08-cv-02735 LDD (E.D. Pa.), a class action for

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violation of the federal Computer Fraud and Abuse Act (CFAA); Young v. Wells Fargo & Co.,

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No. 08-cv-507 (S.D. Iowa), a class action for violation of the RICO Act; Murphy v. DirecTV,

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Inc., No. 07-cv-06545 FMC (C.D. Cal.),.a class action for violation of California’s consumer

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protection laws; Kastin v. AMR Corp., No. 06-CV-5726 (S.D.N.Y.), a class action for violation

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of the Sherman Antitrust Act; In re Orbitz Taxes and Fees Litigation, No. 05 CH 00442 (Cook

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Cnty., Ill.), a class action for violation of Illinois’ consumer protection laws; All-Star Carts and

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Vehicles Inc. v. BFI Canada Income Fund, No. 08-CV-1816 LDW (E.D.N.Y.), a class action for

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violation of the Sherman Antitrust Act; Fink v. Time Warner Cable, No. 08-cv-9628 LTS

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(S.D.N.Y.), a class action for violation of New York’s consumer protection law; and Serrano v.

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Cablevision Systems Corp., No. 09-CV-1056 DI (E.D.N.Y.), a class action for violation of the

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CFAA and of New York’s consumer protection law.

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3.

Milberg and Reese Richman Have Committed, and Will
Continue to Commit, Significant Resources on Behalf of the
Class.

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The last mandatory Rule 23(g) factor examines the “resources that counsel will commit

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to represent the parties.” Fed. R. Civ. P. 23(g)(1)(A)(iv). Milberg and Reese Richman have

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devoted significant resources to this litigation and will continue to do so.

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a.

Milberg Has Exceptional In-House Litigation Support
Tools

In a case in which the main allegations concern the misuse of electronic data, taking
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forward-looking measures to establish appropriate protocols for the handling of such evidence is
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of utmost importance to achieving a benefit for putative Class members. Milberg’s exceptional
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internal resources with respect to litigation support tools and management systems will add a
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significant benefit to the e-discovery of this litigation.
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Milberg is a recognized leader in the field of e-discovery. (See Westerman Decl. Ex. G:
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Milberg e-discovery brochure.) The firm’s in-house Litigation Support Department (established
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nearly a decade ago) has enabled the firm to go toe-to-toe with its adversaries when tackling
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challenges presented by the evolution of electronically stored information, also known as ESI.
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-9PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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Milberg’s well-established e-discovery infrastructure allows the firm to rapidly adapt to the

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expanding work in the field, often leading the industry in e-discovery advancements. Milberg’s

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internal capabilities include access to an experienced team of litigation support professionals

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who offer a wide array of services such as: developing legal strategies and plans for pursuing and

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responding to discovery, shaping data preservation, spoliation and data collection issues,

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controlling data, managing data, and conducting computer forensic analysis. Milberg also has a

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state-of-the-art e-discovery infrastructure that supports the firm’s rapidly expanding work in the

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field, allowing it to host innovative document review tools such as Relativity™ and cutting edge

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document hold management systems such as Method; and the capability to run advanced

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software such as analytical document review software Cataphora; analytic index engine Content

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Analyst (which allows grouping of documents and predictive coding); deposition digest program

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LiveNote; case analysis and complex litigation organization tool Casemap; and other more

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traditional document review programs such as Summation and Concordance; among many

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others.

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Milberg’s in-house e-discovery team is headed by Milberg partner Ariana J. Tadler, who

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serves on the Sedona Conference’s® Business Advisory Board, and is also Co-Chair of the

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Steering Committee for Working Group I on Electronic Document Retention and Production, the

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leading “think tank” on e-discovery. Ms. Tadler is also on the Advisory Board of Georgetown

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University Law Center’s Advanced E-Discovery Institute. Among the first plaintiffs’ firms in

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the country to assemble and train a dedicated team of lawyers and litigation support professionals

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to meet the e-discovery demands of major national litigation, Milberg has developed e-discovery

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capabilities exceptional among U.S. law firms. The firm’s e-discovery team has been retained

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even in actions in which Milberg is not directly involved as counsel, including assisting in the

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management of international discovery in Colombia on behalf of numerous Departments of the

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Colombian government.

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- 10 PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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b.

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Complex litigation often hinges on obtaining pre-discovery facts to support allegations of
wrongdoing, or to correctly analyze and organize discovery materials.

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From the firm’s

experience, outsourcing of these services, which numerous other firms do in whole or in part, is
less efficient and more expensive, to the detriment of the client. Milberg’s non-attorney, inhouse professionals have been critical to the firm’s ability to achieve excellent results for its
clients. Such professionals include seven in-house investigators (who are managed by a 27-year
veteran of the Federal Bureau of Investigation), two forensic accountants, two financial analysts,
four litigation support analysts and eleven information technology technicians and engineers.
Milberg has the capital and human resources necessary to prosecute this complex litigation for as
long as it takes to achieve the best recovery for the class. See Fed. R. Civ. P. 23(g)(1)(A)(ii).

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Milberg and Reese Richman Have Additional Resources
to Ensure Effective Prosecution of the Case

Milberg’s recent trial victory in In re Vivendi Securities, S.A. Litigation, in the Southern
District of New York, exemplifies Milberg’s commitment to its clients and ability to match the
resources of well-heeled defendants for as long as necessary. (See Westerman Decl. Ex. H:
Vivendi.) In early 2010, Milberg, as trial counsel in the four-month Vivendi jury trial, won a
plaintiffs’ verdict in a securities class action against French media conglomerate Vivendi, S.A.
Milberg, with co-counsel, had litigated the case since 2002. The litigation involved a review of
more than 4 million pages of documents, many of which had to be translated from French, and
depositions of over 60 witnesses, many of which occurred overseas.

Milberg and Reese

Richman are ready to commit the similar resources of capital, personnel, and time to this
litigation.

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III.
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CONCLUSION
In the interest of judicial economy and for the reasons set forth above, Plaintiffs

respectfully requests that the Court designate Milberg LLP and Reese Richman as interim class
counsel.

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- 11 PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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Dated: October 28, 2011

Respectfully Submitted,

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/s/ Jeff S. Westerman
JEFF S. WESTERMAN

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MILBERG LLP
Jeff S. Westerman
Sabrina S. Kim
One California Plaza
300 South Grand Avenue, Suite 3900
Los Angeles, CA 90071
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Plaintiffs and Proposed Interim
Class Counsel
MILBERG LLP
Sanford P. Dumain
Peter E. Seidman
Melissa Ryan Clark
Charles Slidders
One Pennsylvania Plaza
New York, NY 10119
Telephone:
[phone]
Facsimile
[phone]
E-mail:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs and Proposed Interim
Class Counsel
REESE RICHMAN LLP
Michael R. Reese (SBN 206773)
Kim E. Richman
875 Avenue of the Americas
New York, NY 10001
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Plaintiffs and Proposed Interim
Class Counsel
- 12 PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

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CERTIFICATE OF SERVICE
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I hereby certify that on October 28, 2011, I electronically filed the foregoing with the

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Clerk of the Court using the CM/ECF system, which will send notifications of such filing to all

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parties registered for electronic notification in this matter.

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/s/ Jeff S.Westerman
Jeff S. Westerman

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- 13 PLAINTIFFS’ MOTION TO DESIGNATE INTERIM CLASS COUNSEL

EXHIBIT A

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Jeff S. Westerman (SBN 94559)
Sabrina S. Kim (SBN 186242)
MILBERG LLP
One California Plaza
300 South Grand Avenue, Suite 3900
Los Angeles, CA 90071
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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RYAN UNG, CHI CHENG, and ALICE ROSEN,
on Behalf of Themselves and All Others Similarly
Situated,

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v.
FACEBOOK, INC.,
Defendant.

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[PROPOSED] ORDER DESIGNATING MILBERG LLP AND
REESE RICHMAN LLP AS INTERIM CLASS COUNSEL
PURSUANT TO FED R. CIV. P. 23(g)(3)
DOCS\576274v1

CLASS ACTION
[PROPOSED] ORDER DESIGNATING
MILBERG LLP AND REESE
RICHMAN LLP AS INTERIM CLASS
COUNSEL PURSUANT TO FED R.
CIV. P. 23(g)(3)

Plaintiffs,

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Case No. CV-11-02829-JSW

-1-

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Plaintiffs’ motion for the designation of Milberg LLP and Reese Richman LLP as Interim

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Class Counsel was filed on October 28, 2011. Having considered all the papers filed in support

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of the Motion, and all other pleadings and papers on file, the Court finds that Milberg LLP and

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Reese Richman LLP meet the Fed. R. Civ. P. 23 requirements for designation as Interim Class

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Counsel.

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Good cause appearing therefore, IT IS HEREBY ORDERED THAT:

Plaintiffs’

Motion to Designate Interim Class Counsel is GRANTED.

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Dated:

___________________________________

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The Honorable Jeffrey S. White

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[PROPOSED] ORDER DESIGNATING MILBERG LLP AND
REESE RICHMAN LLP AS INTERIM CLASS COUNSEL
PURSUANT TO FED R. CIV. P. 23(g)(3)

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