Campbell et al v. Facebook Inc.

Filing 18

MOTION to Consolidate Cases 13-CV-05996 and 14-CV-00307 filed by Matthew Campbell, Michael Hurley. Responses due by 4/4/2014. Replies due by 4/11/2014. (Attachments: # 1 Declaration Michael W. Sobol, # 2 Exhibit A to Sobol Declaration, # 3 Declaration Hank Bates, # 4 Exhibit A to Bates Declaration, # 5 Declaration Jeremy Lieberman, # 6 Exhibit A to Lieberman Declaration, # 7 Proposed Order)(Gardner, Melissa) (Filed on 3/21/2014)

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Michael W. Sobol (State Bar No. 194857)
[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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Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: 212.661.8665
Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: 312.377.1184
Attorneys for Plaintiff David
Shadpour

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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 Matthew Campbell and Michael
Hurley

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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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Plaintiffs,

Case No. C 13-5996 PJH
PLAINTIFFS’ MOTION TO
CONSOLIDATE RELATED ACTIONS
AND APPOINT INTERIM COUNSEL
Judge:

v.

Honorable Phyllis J. Hamilton

FACEBOOK, INC.,

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Defendant.

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1162216.1
MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL

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Plaintiffs in the related actions Shadpour v. Facebook, No. 14-CV-00307 (N.D. Cal.), and

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Campbell et al. v. Facebook, No. 13-CV-05996 (N.D. Cal.) (hereinafter “Plaintiffs”), through

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their counsel of record, hereby submit this Motion to Consolidate Related Actions and Appoint

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Interim Counsel, and request entry of the concurrently submitted [Proposed] Order No. 1

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(“Proposed Order”).

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I.

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CONSOLIDATION OF THE ACTIONS PURSUANT TO RULE 42(a)
Under Federal Rule of Civil Procedure 42(a), this Court has discretion to consolidate

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actions if they “involve a common question of law or fact.” The Shadpour and Campbell actions,

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which the Court has already ordered be related under Local Rule 3-12, should now be

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consolidated. See 2.3.2014 Order (Campbell Dkt. No. 15). These actions are predicated on

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substantially similar factual allegations, and they assert the same state law claims. Consolidation

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will save the Court and the parties considerable time and expense.

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II.

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ORGANIZATION OF PLAINTIFFS’ COUNSEL
To facilitate the efficient and ordered management of the consolidated actions, Plaintiffs

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seek entry of an order appointing Plaintiffs’ Executive Committee, Co-Lead Counsel, and

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Plaintiffs’ Liaison Counsel.

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A.

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Plaintiffs seek to appoint an Executive Committee composed of representatives from the

Plaintiffs’ Executive Committee

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following three law firms: Lieff, Cabraser, Heimann & Bernstein, LLP (“LCHB”); Carney, Bates,

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& Pulliam, PLLC (“CBP”), and Pomerantz, LLP (“Pomerantz”).

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The Plaintiffs’ Executive Committee shall:

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1.

Consult on all major strategic decisions in this litigation;

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2.

Fund the necessary and appropriate costs of discovery and other common benefit

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efforts;

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3.

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Maintain adequate time and disbursement records covering services as designated
counsel; and

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4.

Encourage full cooperation and efficiency among all Plaintiffs’ counsel.

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1162216.1

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B.

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Plaintiffs seek to appoint CBP and LCHB as Co-Lead counsel. Co-Lead Counsel shall be

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responsible for coordinating the activities of Plaintiffs at all stages of the consolidated Campbell

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and Shadpour actions, and any subsequently filed cases which are related (“the Litigation”). Co-

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Lead Counsel shall also have the following responsibilities:

Co-Lead Counsel

1. Serve as the sole spokespersons on behalf of the Plaintiffs and the class at all court

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appearances or mediation sessions in the Litigation;

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2. Serve as the sole contact persons between Plaintiffs’ counsel and Defendant’s counsel

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regarding the prosecution, mediation, or settlement of the Litigation.

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3. Serve as the sole spokespersons for Plaintiffs’ counsel appearing in any subsequently

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filed cases which are related, coordinated, or consolidated with the Litigation;

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4. Schedule and lead meetings of Plaintiffs’ Executive Committee or of other Plaintiffs’

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counsel;

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5. Enter into stipulations with opposing counsel, as necessary, for the conduct of the

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Litigation.

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6. Coordinate and assign all work among Plaintiffs’ counsel, including responsibilities

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for:

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a. briefing and argument of motions;

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b. the initiating and obtaining discovery propounded by Plaintiffs;

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c. responding to discovery propounded to Plaintiffs;

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d. briefing and conducting mediation or settlement;

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e. pretrial preparation;

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f. trial;

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g. post-trial proceedings; and

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h. prosecuting or defending any appeal.

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C.

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Plaintiffs seek to appoint LCHB as Plaintiffs’ Liaison Counsel, which shall:

Plaintiffs’ Liaison Counsel

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1162216.1

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1.

Maintain an up-to-date, comprehensive Service List of Plaintiffs in the Litigation

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and promptly advise the Court and Defendant’s counsel of changes to Plaintiffs’

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Service List;

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2.

Receive and distribute to Plaintiffs’ counsel, as appropriate, Orders, notices, and

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correspondence from the Court, to the extent such documents are not electronically

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filed;

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3.

Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery pleadings

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and correspondence and other documents from Defendant’s counsel that are not

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electronically filed;

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4.

Maintain a file-endorsed copy of the Proposed Order, if adopted by the Court, and

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serve the same on the parties and/or their attorneys in any actions later instituted

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in, removed to, or transferred to, these proceedings; and

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5.

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Communicate with the Court, on behalf of the Plaintiffs’ Executive Committee,
concerning scheduling and other administrative matters.

No motion or other pleading shall be filed by any Plaintiff except through Plaintiffs’

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Liaison Counsel.

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D.

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Plaintiffs request that this Court appoint LCHB, CBP, and Pomerantz to serve as Interim

Interim Class Counsel

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Class Counsel pursuant to Federal Rule of Civil Procedure 23(g). The appointment of Interim

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Class Counsel will benefit the Court, Defendant and the proposed class because it will provide an

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organized, managed structure that can only be achieved through the appointment of a unified

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voice to advocate the interests of the several plaintiffs. As described below, these firms are more

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than qualified to be appointed Interim Class Counsel, and have already demonstrated key

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qualities for the position.

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Rule 23(g)(3) provides that, “[t]he court may designate interim counsel to act on behalf of

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the putative class before determining whether to certify the action as a class action.” See, e.g., In

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re Bank of Am. Credit Prot. Mktg. & Sales Practices Litig., 2011 U.S. Dist. LEXIS 135674, *17

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(N.D. Cal. Nov. 23, 2011) (Henderson, J.) (“The members of Plaintiffs' Executive Committee
1162216.1
-4MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL

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shall serve as Interim Class Counsel pursuant to Fed. R. Civ. P. 23(g)(2)(A) until further order of

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the Court.”). Rule 23(g), which was added to the Federal Rules of Civil Procedure in 2003,

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provides that:

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(1)

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In appointing class counsel, the court:
(A)

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must consider:
(i)

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

(ii)

counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted
in the action;

(iii)

counsel’s knowledge of the applicable law; and

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the resources that counsel will commit to
representing the class.

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Fed. R. Civ. P 2(g)(1)(A).
The Advisory Committee Notes on Rule 23(g) provide context for its application: “Rule

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23(g) is new. It responds to the reality that the selection and activity of counsel are often

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critically important to successful handling of a class action . . . .This subdivision recognizes the

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importance of class counsel, states the obligation to represent the interest of the class, and

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provides a framework for selection of class counsel.” Fed. R. Civ. P. 23(g) advisory committee

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note. LCHB, CBP, and Pomerantz meet the requirements of Rule 23(g) for appointment as

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Interim Class Counsel.
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Proposed Interim Class Counsel Identified and Investigated the
Potential Claims in this Action

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LCHB, CBP, and Pomerantz identified the problems at issue, have been in contact with,

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or have been contacted by, dozens of prospective class members, and began investigating the

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claims and law that comprise the various actions.
Before filing the initial complaint, in addition to in-depth legal research, proposed Interim

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Class Counsel conducted extensive factual research relating to relevant technical capabilities of

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Defendant, the Defendant’s course of conduct, as well any agreements that Defendant may claim
1162216.1

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govern the transactions. This multifaceted investigation became the basis for the detailed factual

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and legal analysis being developed among members of the Executive Committee to formulate a

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master consolidated complaint. Through this effort, proposed counsel has developed a detailed

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and sophisticated understanding of the factual and legal issues involved in this matter.1

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2.

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Proposed Interim Class Counsel Bring a Wealth of Experience to This
Matter

As individuals, the proposed Interim Class Counsel represent a vast depth of experience in

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class action and complex litigation. Each firm offers the expertise of extensive experience in

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nationwide class actions and complex multidistrict matters. As demonstrated in more detail in

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each firm’s individual declaration, proposed Interim Class Counsel have served as lead counsel or

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in executive committee positions for some of the largest class actions in the country over the last

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30 years. Accordingly, proposed Interim Class Counsel provide excellent experience in handling

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class and complex litigation, as well as in-depth knowledge of the applicable law that are the

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hallmarks of class counsel under Rule 23(g).2

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3.

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Proposed Interim Class Counsel Have Proven Knowledge of the
Applicable Law

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The proposed Interim Class Counsel have many years of experience litigating cases

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involving the privacy rights of consumers. For example, attorneys from LCHB acted as co-

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counsel for multiple cases involving the federal Wiretap Act, including In re Google Inc. Street

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View Electronic Communications Litigation, No. 3:10-md-021784-CRB (N.D. Cal.), Hepting v.

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AT&T Corp., Case No. C-06-0672-VRW (N.D. Cal.), and In re Carrier IQ Privacy Litigation,

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MDL No. 2330.3

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See Sobol Decl. ¶ 8; Bates Decl. ¶ 3; Lieberman Decl. ¶ 4.
See Sobol Decl. ¶¶ 2-4, Ex. A (LCHB Firm Resume); Bates Decl. ¶ 2, Ex. A (CBP Firm
Resume); Lieberman Decl. ¶ 2, Ex. A (Pomerantz Firm Resume).
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Sobol Decl. ¶ 3.
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1162216.1

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4.

Proposed Interim Class Counsel Will Commit The Resources
Necessary To Prosecute This Matter

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Once again, individually, the firms’ resources are established by past successes. As a

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group, there is no question that LCHB, CBP, and Pomerantz have more than adequate resources

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to commit to this matter. Each of the firms has a practice built around class and complex

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litigation, and a history of committing all resources necessary to generate a recovery for the

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putative Class in this matter.4

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III.

Plaintiffs respectfully request that this Court enter the concurrently submitted [Proposed]

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CONCLUSION

Pre-Trial Order No. 1, or such relief as the Court may deem proper.

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See Sobol Decl. ¶¶ 8-10; Bates Decl. ¶¶ 5-6; Lieberman Decl. ¶ 6.

1162216.1

-7MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL

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Dated: March 21, 2014

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By: /s/ Michael W. Sobol
Michael W. Sobol
Michael W. Sobol (State Bar No. 194857)
[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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Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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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 Matthew Campbell and Michael
Hurley

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1162216.1

-8MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL

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Dated: March 21, 2014

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By:

/s/ Jeremy A. Lieberman

Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: [phone]
Facsimile: 212.661.8665

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: [phone]
Facsimile: 312.377.1184

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Jon Tostrud (State Bar No. 199502)
[e-mail]
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2125
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310.278.2640

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Attorneys for Plaintiff David Shadpour

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1162216.1

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