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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Michael W. Sobol (State Bar No. 194857) Melissa Gardner (State Bar No. 289096) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 Rachel Geman Nicholas Diamand LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 Jeremy A. Lieberman Lesley F. Portnoy POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212.661.1100 Facsimile: 212.661.8665 Patrick V. Dahlstrom POMERANTZ, LLP 10 S. La Salle Street, Suite 3505 Chicago, Illinois 60603 Telephone: 312.377.1181 Facsimile: 312.377.1184 Attorneys for Plaintiff David Shadpour Hank Bates (State Bar No. 167688) Allen Carney David Slade CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive Little Rock, AR 72212 Telephone: 501.312.8500 Facsimile: 501.312.8505 Attorneys for Plaintiffs Matthew Campbell and Michael Hurley 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 21 22 MATTHEW CAMPBELL and MICHAEL HURLEY, on behalf of themselves and all others similarly situated, Plaintiffs, 23 24 DECLARATION OF MICHAEL SOBOL IN SUPPORT OF PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM COUNSEL v. 25 Case No. C 13-5996 PJH FACEBOOK, INC., Judge: Honorable Phyllis J. Hamilton Defendant. 26 27 28 1163838.1 DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 I, Michael W. Sobol, declare as follows: 2 I am a member in good standing of the California State Bar and a partner in 3 the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP (“LCHB”), counsel for 4 the plaintiffs in Campbell et al. v. Facebook, Inc., and, along with Carney Bates & 5 Pulliam, PLLC and Pomerantz LLC, proposed Interim Class Counsel in the 6 consolidated proceedings. I have personal knowledge of the matters set forth 7 herein, and could and would testify competently thereto if called upon to do so. 8 BACKGROUND AND EXPERIENCE 9 LCHB is one of the oldest, largest, most respected, and most successful law 10 firms in the country representing plaintiffs in class actions. LCHB has been 11 repeatedly recognized over the years as one of the top plaintiffs’ law firms in the 12 country by both The National Law Journal and The American Lawyer. See, e.g., 13 The Plaintiffs’ Hot List, National Law Journal (Oct. 1, 2013) (LCHB has received 14 this same award each year from 2003 through 2013); J. Triedman, A New Lieff, 15 The American Lawyer (Dec. 2006), at 13 (“one of the nation’s premier plaintiffs’ 16 firms”); A. Frankel, Sweet Sixteen, Litigation 2004, Supplement to The American 17 Lawyer & Corporate Counsel (Dec. 2004), at 8-10. 18 LCHB has litigated hundreds of consumer class actions, and has significant 19 experience in litigating to vindicate the privacy rights of consumers. For example, 20 LCHB has held leadership positions in the following cases brought under the 21 Wiretap Act and Electronic Communications Privacy Act: 22 • 23 Litigation, No. 3:10-md-021784-CRB (N.D. Cal.). LCHB, along with 24 co-counsel, represents plaintiffs in a class action alleging that Google 25 intentionally equipped its Google Maps “Street View” vehicles with 26 Wi-Fi antennas and software that collected data transmitted by Wi-Fi 27 networks located in homes within range of the vehicles’ receptors. 28 Google collected not only basic identifying information about 1163838.1 In re Google Inc. Street View Electronic Communications -1- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 individuals’ Wi-Fi networks, but also personal, private data being 2 transmitted over their Wi-Fi networks such as emails, usernames, 3 passwords, videos, and documents. Plaintiffs allege that Google’s 4 actions violated the federal Wiretap Act. On September 10, 2013, the 5 Ninth Circuit Court of Appeals agreed with Plaintiffs that Google’s 6 actions are not exempt from the Wiretap Act. 7 • 8 represents plaintiffs in class action litigation alleging that Carrier IQ, 9 Inc., and other smartphone manufacturers have violated the Wiretap In re Carrier IQ Privacy Litigation, MDL No. 2330. LCHB 10 Act and other privacy laws by installing Carrier IQ’s user tracking 11 software, called IQ Agent, on millions of cell phones and other mobile 12 devices that use the Android operating system. Without notifying 13 users or obtaining consent, IQ Agent records and transmits user data, 14 including personally identifiable information, to cellular carriers. The 15 data are then analyzed and segmented, including by equipment and 16 subscriber identification numbers. IQ Agent cannot be removed and 17 cannot be detected by users lacking advanced computing skills. LCHB has vindicated the rights of and recovered hundreds of millions of 18 19 dollars for consumers in other class litigation, as well, including the results in the 20 following consumer protection cases: 21 • 22 Gutierrez v. Wells Fargo Bank, No. C 07-05923 WHA (N.D. Cal.), a 23 class action alleging unfair practices and false representations by Wells 24 Fargo in connection with its imposition of overdraft charges. 25 Following a two week bench trial, an appeal, and subsequent post- 26 appeal proceedings, U.S. District Court Judge William H. Alsup 27 awarded $203 million in restitution to the certified class. For our work 28 in the case, the Consumer Attorneys of California named myself and 1163838.1 LCHB serves as Co-Class Counsel and Lead Trial Counsel in -2- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 my partner Richard M. Heimann as Finalists for the Consumer 2 Attorney of the Year Award. 3 • 4 Plaintiffs’ Executive Committee in In re Chase Bank USA, N.A. 5 “Check Loan” Contract Litigation, MDL No. 2032 (N.D. Cal.), a 6 Multi-District, nationwide class action charging that Chase violated the 7 implied covenant of good faith and fair dealing by modifying the terms 8 of fixed rate loans. In 2012, after the class was certified, U.S. District 9 Judge Maxine M. Chesney approved a $100 million class-wide LCHB serves as Plaintiffs’ Liaison Counsel and on the 10 settlement. 11 • 12 Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.), a 13 Multi-District Litigation involving actions against more than two 14 dozen national banks, where the banks are alleged to have engaged in 15 practices resulting in the imposition of excessive overdraft charges. 16 Settlements totaling hundreds of millions of dollars have been reached 17 in the litigation, including a $410 million settlement involving Bank of 18 America, which was approved by the presiding Court. 19 • 20 of federal court cases against some of the nation’s largest credit card 21 issuers, challenging the imposition of charges for so-called “payment 22 protection” or “credit protection” programs. 23 • 24 Multi-District Litigation, In re Neurontin Marketing and Sales 25 Practices Litigation, No. 04-CV-10739-PBS (D. Mass.), arising out of 26 the sale and marketing of the prescription drug Neurontin. LCHB was 27 also Of Counsel to Kaiser Foundation Health Plan, Inc. and Kaiser 28 Foundation Hospitals (“Kaiser”) in the litigation. On March 25, 2010, 1163838.1 LCHB serves on the Plaintiffs’ Executive Committee in In re LCHB, along with co-counsel, represents consumers in a series LCHB served on the Plaintiffs’ Steering Committee in the -3- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 a jury determined that Pfizer Inc. violated federal antiracketeering law 2 by promoting Neurontin for unapproved uses and found Pfizer liable to 3 Kaiser for damages of up to $142 million. On November 3, 2010, the 4 Court found Pfizer liable under California’s Unfair Competition Law, 5 ordering it to pay restitution to Kaiser of approximately $95 million. 6 • 7 consumer class action challenging Progressive Corporation’s private 8 passenger automobile insurance sales practices, Kline v. The 9 Progressive Corporation, Circuit No. 02-L-6 (Circuit Court of the 10 First Judicial Circuit, Johnson County, Illinois). In 2002, the Court 11 approved a settlement valued at approximately $450 million, which 12 included both cash and equitable relief. 13 • 14 Catholic Healthcare West (“CHW”) in Catholic Healthcare West 15 Cases, JCCP No. 4453 (Cal. Supr. Ct.). Plaintiff alleged that CHW 16 charged uninsured patients excessive fees for treatment and services. 17 In January 2007, the Court approved a settlement that provides 18 discounts, refunds and other benefits for CHW patients valued at $423 19 million. 20 • 21 Health Uninsured Pricing Cases, JCCP No. 4388 (Cal. Supr. Ct.). 22 Plaintiffs alleged that they and a class of uninsured patients treated at 23 Sutter hospitals were overcharged for treatment and services. In 24 December 2006, the Court granted final approval to a settlement, 25 which included changes of practices and allowed class members to 26 claim refunds or deductions of between 25% to 45% of their prior 27 hospital bills, at an estimated total value of $276 million. LCHB served as Settlement Class Counsel in a nationwide LCHB served as lead counsel in a coordinated action against LCHB served as Lead Counsel in the coordinated action, Sutter 28 1163838.1 -4- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 • 2 settlement class of Providian credit cardholders who alleged that 3 Providian had engaged in widespread misconduct by charging 4 cardholders unlawful, excessive interest and late charges, and by 5 promoting and selling to cardholders “add-on products” promising 6 illusory benefits and services, in Providian Credit Card Cases, JCCP 7 No. 4085 (San Francisco Supr. Ct.). In November 2001, the Court 8 granted final approval to a $105 million settlement of the case, which 9 also required Providian to implement substantial changes to its LCHB served as Co-Lead Counsel for a certified national 10 business practices. 11 • 12 numerous cases alleging predatory lending and unfair mortgage 13 practices. In Reverse Mortgage Cases, JCCP No. 4061 (San Mateo 14 County Super. Ct., Cal.), LCHB served as co-lead counsel in an action 15 against Transamerica Corporation and its subsidiary, who sold 16 “reverse mortgages” to seniors which were misleading as to the loan 17 terms, including the existence and amount of certain charges and fees. 18 LCHB also represented a class of consumers in Citigroup Loan Cases 19 (J.C.C.P. No. 4197, San Francisco Superior Court) against a “sub- 20 prime” lender for cramming unwanted and unnecessary insurance 21 products on to mortgage loans and engaging in improper loan 22 refinancing practices. A court-approved settlement of the case 23 provided $240 million in relief to the nationwide class. LCHB was 24 also co-lead counsel in Curry v. Fairbanks Capital Corporation (D. 25 Mass., No. 03-10895-DPW), where a nationwide settlement provided 26 $55 million and injunctive relief to the class. 27 • 28 insurance industry litigation, a series of California lawsuits which 1163838.1 Over the past several years, LCHB has successfully litigated I also served as plaintiffs’ counsel in the California title -5- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 alleged, among other things, that the title companies received interest 2 payments on customer escrow funds that were never reimbursed to 3 their customers. The defendant companies included Lawyers’ Title 4 Insurance, Commonwealth Land Title Insurance, Stewart Title 5 Insurance of California, First American Title Insurance, Fidelity 6 National Title Insurance, and Chicago Title Insurance. In coordination 7 with parallel litigation brought by the Attorney General, we reached 8 settlements in 2003 and 2004 with the leading title insurance 9 companies in California, resulting in historic industry-wide changes to 10 the practice of providing escrow services in real estate closings. The 11 settlements brought a total of $50 million in restitution to California 12 consumers, including cash payments. I am a 1989 graduate of Boston University School of Law. I practiced law in 13 14 Massachusetts from 1989 to 1997. From 1995 through 1997, I was a Lecturer in 15 Law at Boston University School of Law. In 1997, I left my position as partner in 16 the Boston firm of Shafner, Gilleran & Mortensen, P.C. to move to San Francisco, 17 where I joined LCHB. Since joining LCHB in 1997, I have almost exclusively 18 represented plaintiffs in consumer protection class actions. I have been a partner 19 with LCHB since 1999. I am in my thirteenth year as chair of LCHB’s consumer 20 practice group, and as such am involved in and oversee a wide range of consumer 21 protection litigation. I have served as plaintiffs’ class counsel in numerous 22 nationwide consumer class action cases. Rachel Geman is a partner at LCHB. She has represented plaintiffs in class 23 24 actions for over a decade, including as co-lead class counsel or counsel for the class 25 in consumer law matters relating to predatory lending and loan servicing, credit 26 card add-on products, false advertising, and other issues. A former plaintiff-side 27 chair of the ABA EEO Committee and Board Member of the National Employment 28 Lawyers’ Association – New York, Rachel has spoken and written on multiple 1163838.1 -6- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 topics in class action litigation. Rachel is an AV-Preeminent rated attorney, and has 2 been recognized by Best Lawyers (2012-2014), Law 500 (2013), and Super 3 Lawyers (2011). 4 Attached hereto as Exhibit A is a copy of LCHB’s firm résumé, which 5 describes in further detail the cases referenced above, as well as some of the firm’s 6 other experience in class action and other complex litigation. As set forth therein, 7 LCHB represents plaintiffs in consumer, securities, employment, antitrust, civil 8 rights, and mass tort cases. LCHB has served as class counsel in hundreds of class 9 actions nationwide, resulting in hundreds of judgments and settlements which have 10 recovered billions of dollars for its clients. 11 THE CAMPBELL LITIGATION 12 LCHB conducted a thorough factual investigation of the issues in this 13 litigation, including talking with a substantial number of Facebook users and 14 reviewing and analyzing relevant representations made by defendants, press 15 releases, and other documents. LCHB further conducted a thorough legal analysis 16 of defendant’s practices, and thereafter filed the initial complaint in the Campbell 17 action, which was the first complaint filed that addressed the issues raised in these 18 consolidated proceedings. Since filing the Campbell action, LCHB has been 19 contacted by dozens of Facebook users who were subjected to the practices at issue 20 in these proceedings, and has documented their complaints. Subsequent to filing the Campbell action, LCHB has worked cooperatively 21 22 with plaintiffs’ counsel in the related Shadpour action to help facilitate the 23 consolidation of these proceedings and to coordinate other related issues, and to 24 prepare and file a master consolidated complaint. LCHB is ready, willing and able to commit the resources necessary to litigate 25 26 this case vigorously. Indeed, LCHB has already committed the time and efforts of 27 multiple attorneys and other staff members for the investigation, research, and 28 litigation of this case, and will continue to do so. 1163838.1 -7- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH 1 2 I declare under penalty of perjury that the foregoing is true and correct and 3 that this Declaration was signed in San Francisco, California, on March 21, 2014. 4 5 6 Michael W. Sobol 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1163838.1 -8- DECLARATION OF MICHAEL W. SOBOL CASE NO. C 13-5996 PJH

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