Campbell et al v. Facebook Inc.

Filing 167

REPLY (re 138 MOTION to Certify Class ) filed byMatthew Campbell, Michael Hurley. (Attachments: # 1 Declaration of David Slade, # 2 Declaration Supplemental Declaration of Melissa Gardner)(Sobol, Michael) (Filed on 2/19/2016)

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,

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Plaintiff,
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Case No. C 13-05996 PJH (MEJ)
SUPPLEMENTAL DECLARATION OF
MELISSA GARDNER IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

v.
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FACEBOOK, INC.,
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Hearing: March 16, 2016, 9:00 a.m.
Location: Courtroom 3, 3rd Floor
Judge:
Honorable Phyllis J. Hamilton

Defendant.
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF MOT. FOR CLASS CERT.
CASE NO. 13-CV-05996-PJH (MEJ)

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I, Melissa Gardner, declare:

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1.

I am an attorney in the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP,

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and a member of the State Bar of California. I am admitted to practice before this Court. I am

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one of the counsel for Plaintiffs in this action. I make this declaration based upon my own

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personal knowledge. If called upon to testify, I could and would testify competently to the truth

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of the matters stated herein.

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2.

I submit this declaration regarding David Shadpour’s representation by Lieff

Cabraser Heimann & Bernstein (LCHB), and Carney Bates and Pulliam (CBP).
3.

LCHB and CBP had no relationship with Mr. Shadpour at the time he filed his

original complaint in this action.
4.

After Mr. Shadpour and his counsel, Pomerantz LLP, became involved in this

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action, LCHB and CBP sent copies of major pleadings to Pomerantz prior to filing, including the

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Consolidated Amended Complaint, and Plaintiffs’ Opposition to Facebook’s Motion to Dismiss.

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5.

On February 5, I emailed counsel at Pomerantz to coordinate the process of

responding to discovery that had been served on January 26.
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On March 2, LCHB and CBP learned for the first time that Mr. Shadpour wished

to withdraw as a plaintiff.
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On March 17 during a meet and confer, David Rudolph of LCHB informed

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defense counsel that Mr. Shadpour intended to withdraw, and asked if Facebook would stipulate

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to his withdrawal. Facebook’s counsel responded that they needed to confer with their client, but

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that Facebook could not stipulate to Mr. Shadpour’s withdrawal until he responded to outstanding

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discovery requests and sat for a deposition. Discovery responses were secured from Mr.

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Shadpour and provided to Facebook on April 1.

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8.

Shadpour, which LCHB forwarded to Mr. Portnoy. However,

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On April 16, Facebook sent LCHB and CBP a notice of deposition for Mr.

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In the interest of avoiding unnecessary delay, LCHB drafted a stipulation to effect

Mr. Shadpour’s dismissal. Mr. Rudolph emailed the stipulation to defense counsel on April 30.
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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF MOT. FOR CLASS CERT.
CASE NO. 13-CV-05996-PJH (MEJ)

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On May 5, defense counsel responded that they would not stipulate to Mr. Shadpour’s dismissal

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until he sat for a deposition.

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Following that refusal, LCHB promptly drafted a motion to dismiss Mr.

Shadpour’s claims without discovery conditions.
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Subsequently on May 28, I, along with Nick Diamand of LCHB and Hank Bates

of CBP, spoke directly with Mr. Shadpour. On May 31, Mr. Shadpour

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From late May until Mr. Shadpour retained separate counsel

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Also until Mr. Shadpour retained separate counsel, LCHB and CBP continued to

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litigate Mr. Shadpour’s right to dismiss his claims without providing additional discovery or a

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deposition. For example, on June 3, 2015, when Facebook initiated a joint discovery letter brief

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seeking to compel Mr. Shadpour’s discovery and deposition testimony, interim class counsel

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challenged Facebook’s assumption that it was entitled to impose discovery conditions on a

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plaintiff under these circumstances. (See Dkt. 89). I emailed drafts of the letter brief to Mr.

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Shadpour as the parties exchanged their positions. The introduction in Facebook’s initial draft

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stated, “Plaintiffs’ counsel has been unable to reach Mr. Shadpour and oppose the requested

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relief.” I believe that this is why,

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Because it was erroneous, LCHB

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deleted that statement by Facebook in the draft of the joint letter brief sent to Facebook’s counsel

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on June 9. It did not appear in the letter brief filed with the Court. (Dkt. 89).

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF MOT. FOR CLASS CERT.
CASE NO. 13-CV-05996-PJH (MEJ)

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Executed this 19th day of February, 2016, in New York, New York.

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LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:

/s/Melissa Gardner
Melissa Gardner

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DECLARATION OF MELISSA GARDNER IN
SUPPORT OF MOT. FOR CLASS CERT.
CASE NO. 13-CV-05996-PJH (MEJ)