Noll v. eBay, Inc et al

Filing 116

ORDER GRANTING 114 Stipulation Regarding Class Certification filed by Richard Noll, eBay Inc., Rhythm Motor Sports, LLC. Signed by Judge Edward J. Davila on 7/16/2014. (ecg, COURT STAFF) (Filed on 7/16/2014)

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VERA BROOKS
([e-mail])
THOMPSON & BROOKS
412 E. Madison Street, Suite 900
Tampa, Florida 33602
ISTRIC
Tel: [phone]
ES D
TC
AT
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Fax: [phone]
(Admitted Pro Hac Vice)

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ATTORNEYS FOR PLAINTIFFS RICHARD
NOLL AND RHYTHM MOTOR SPORTS, LLC

RT

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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RICHARD NOLL AND RHYTHM
MOTOR SPORTS, LLC, Individually and
on behalf of all others similarly situated,,

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Plaintiff,
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v.
EBAY, INC.,
Defendant.

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Judge E

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ERED
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IT IS S

NO

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RT
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SHAWN T. LEUTHOLD
([e-mail])
LAW OFFICE OF SHAWN T. LEUTHOLD
1671 The Alameda #303
San Jose, California 95126
Tel: [phone]
Fax: [phone]

dward J.

Davila

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KEITH R. VERGES ([e-mail])
PARKER D. YOUNG ([e-mail])
RAYMOND E. WALKER ([e-mail])
FIGARI & DAVENPORT, L.L.P.
901 Main Street, Suite 3400
Dallas, Texas 75202
Tel: [phone]
Fax: [phone]
(Admitted Pro Hac Vice)

UNIT
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N

C
F
D IS T IC T O
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7/16/2014

CASE NO. 5:11-cv-04585-EJD

STIPULATION REGARDING CLASS
CERTIFICATION
Date:
Time:
Judge:
Courtroom:
Trial Date:

February 21, 2014
10:00 a.m.
Honorable Edward J. Davila
4, 5th Floor
Not yet set

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Plaintiffs Richard Noll and Rhythm Motor Sports, LLC (“Plaintiffs”) and Defendant
eBay, Inc. (“eBay”) file this Stipulation Regarding Class Certification and state:

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The following definitions apply to this Stipulation:

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“Class Period” means the time period September 16, 2008 through June 19, 2012.

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“GTC Listing” means a listing placed with the duration of “Good ‘Til Cancelled.”

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STIPULATION REGARDING CLASS CERTIFICATION

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“Insertion Fee” is the basic fee a person is charged when they list an item on eBay.

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“Optional Feature Fee” means any of the fees described below the heading “Optional

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feature fees” on the Fees Schedule pages that are hyperlinked to the User Agreement.
”Core” means listings placed on eBay.com.

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“Motors” means listings placed on ebaymotors.com or ebay.com/motors.
“Stores” means listings placed via the listing format called Store Inventory format.
“Renewal Fees” means Insertion Fees and any Optional Feature Fees charged 30 days or
more after the original placement of a GTC Listing.
Counsel for Plaintiffs and eBay have conferred and the Parties each agree, for the sole
purpose of Plaintiffs’ anticipated motion for class certification, not to contest the following

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assertions:
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The proposed Class consists of all persons who placed a GTC listing during the Class

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Period, and incurred one or more Renewal Fees, except for persons who placed only Stores GTC

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listings from September 16, 2008 through March 29, 2010, and who did not place any other GTC

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Listings in Core, Motors or at any other time during the Class Period.

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The profits earned by proposed Class Members for any sale resulting from a GTC Listing
would require evidence of the cost of each item sold and potentially the shipping and other costs

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associated with completing the sale, which evidence would be individualized for each proposed
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Class Member and potentially each item sold and which evidence might not be available should

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the proposed Class Member not recall or not have records of the costs. Therefore, Plaintiffs have

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no source of Class-wide evidence of profits, if any, derived by each proposed Class Member

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from GTC Listings. In addition, Plaintiffs do not have sufficient evidence to determine the

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profits (if any) from their own sales associated with their GTC listings.

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STIPULATION REGARDING CLASS CERTIFICATION

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eBay’s electronic data generally contains contact information for the User ID(s) of sellers

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who placed GTC Listings during the Class Period and were charged Renewal Fees. The identity

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and number of Class Members can therefore be determined. This is subject to limited exceptions
where sellers have requested that their contact information be deleted or where there is an

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unexpected glitch in the data.
The number of unique User IDs of Proposed Class Members exceeds 1 million.

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The amount of Renewal Fees incurred and paid by each unique User ID is determinable

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from eBay’s electronic data by querying that data for each unique User ID’s GTC Listings during

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the proposed Class Period and identifying and adding together the associated Renewal Fees.
The Renewal Fees incurred and paid by each unique User ID can be segregated by type

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of fee (i.e., Insertion Fee and each Optional Feature Fee), the date of each Renewal Fee relative
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to the original listing date, and the platform or format for each listing (e.g., Core, Motors or
Stores).

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Renewal Fees can be calculated from eBay’s electronic data for each proposed unique

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User ID for the proposed Class Period and segregated into combinations of (1) type of fee (i.e.,

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Insertion Fee or Optional Feature Fee); (2) date and date range of fees (e.g., fees for listings

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placed between September 16, 2008 and December 15, 2008); (3) number of renewals (e.g., only

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the first renewal 30 days after the original listing or multiple renewals after the original listing);
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and (4) dates and date ranges the Renewal Fees were charged and/or paid (e.g., fees charged
and/or paid between October 16, 2008 and January 15, 2009).

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The Parties further agree that this Stipulation satisfies their respective discovery

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obligations on the issues set forth above, and the Parties will not seek further discovery on these

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issues prior to or in connection with the class certification process.

Notwithstanding the

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STIPULATION REGARDING CLASS CERTIFICATION

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foregoing, the Parties agree to meet and confer following the Court’s ruling on Plaintiffs’

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anticipated class certification motion to determine the extent to which additional discovery on

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the issues referenced herein may be necessary in light of the Court’s ruling.

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By: /s/ Whitty Somvichian
Counsel for Defendant

By: /s/ Keith R. Verges
Counsel for Plaintiffs

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FILER’S ATTESTATION:
Pursuant to General Order No. 45, § X(B) regarding signatures, Keith Verges hereby
attests that concurrence in the filing of this document has been obtained.
/s/ Keith R. Verges
Keith R. Verges

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CERTIFICATE OF SERVICE

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I hereby certify that all counsel of record will be served with a copy of this document via
the Court’s CM/ECF system pursuant to the local rules of this Court, on this 14th day of July,
2014.
/s/ Keith R. Verges
Keith R. Verges

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STIPULATION REGARDING CLASS CERTIFICATION

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