Bartling et al v. Apple Inc.

Filing 40

ORDER GRANTING 29 MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT OF INTERIM CLASS COUNSEL. Signed by Judge Edward J. Davila on 4/27/2018. (ejdlc2S, COURT STAFF) (Filed on 4/27/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ANTHONY BARTLING, et al.,

Case No. 5:18-cv-00147-EJD

Plaintiffs,
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ORDER GRANTING MOTION TO
CONSOLIDATE ACTIONS AND FOR
APPOINTMENT OF INTERIM CLASS
COUNSEL

v.
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APPLE INC.,

United States District Court
Northern District of California

Defendant.

Re: Dkt. No. 29

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ROBERT GIRALDI,
Plaintiff,

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Case No. 5:18-cv-00271-EJD

v.
APPLE INC.,
Defendant.

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Plaintiffs Anthony Bartling et al. and Robert Giraldi (collectively, “Plaintiffs”) filed

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separate actions on behalf of themselves and other similarly situated against Defendant Apple Inc.

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(“Apple” or “Defendant”) for alleging violations of various consumer protection laws and tort

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claims arising out of security vulnerabilities in Apple products. Presently before the Court is a

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joint motion by Plaintiffs to consolidate the two actions and appoint the three law firms that

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represent Plaintiffs as interim lead counsel for the purported class. Dkt. No. 29. Defendant has

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not filed an opposition to this motion. See Dkt. No. 31.

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Having reviewed the material relevant to this matter, the court finds Plaintiffs’ unopposed
Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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motion appropriate for decision without oral argument pursuant to Civil Local Rule 7-1(b).

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Accordingly, the hearing scheduled for May 3, 2018 will be vacated and the motion will be

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granted based on the terms which follow.

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I.

CONSOLIDATION
The district court may consolidate actions involving common questions of law and fact.

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Fed. R. Civ. P. 42(a)(2). The court exercises “broad discretion to decide how cases on its docket

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are to be tried so that the business of the court may be dispatched with expedition and economy

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while providing justice to the parties.” Morin v. Turpin, 778 F. Supp. 711, 733 (S.D.N.Y. 1991)

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(citing 6 C. Wright & A. Miller, Federal Practice and Procedure § 1471, at 359 (1971)). In
exercising this discretion, the court “weighs the saving of time and effort consolidation would

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United States District Court
Northern District of California

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produce against any inconvenience, delay, or expense that it would cause.” Huene v. United

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States, 743 F.2d 703, 704 (9th Cir. 1984). Consolidation may occur upon motion by a party or sua

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sponte. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987).
Upon review of the complaints in each of the actions presented here, the Court finds that

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each case presents substantially similar factual and legal issues. The Plaintiffs in each action

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allege that they were harmed because they purchased Apple products which contained security

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vulnerabilities, such as “Meltdown” and “Spectre.” Each action includes claims of breach of

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express and implied warranty, negligence, unjust enrichment, and violations of New York Generla

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Business Law § 349. The actions are in the same procedural stage as Defendants have not yet

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filed an answer or responsive motion. In addition, since the claims for each case arise from a

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similar nucleus of events, discovery issues relating to each action will be parallel. Further, there

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appears to be no basis to find that consolidation would cause inconvenience, delay or expense,

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especially since the parties appear to agree with the consolidation request. As such, the court finds

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consolidation appropriate.

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II.

APPOINTMENT OF INTERIM CLASS COUNSEL
Pursuant to Federal Rule of Civil Procedure 23(g)(3), the court “may designate interim

Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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counsel to act on behalf of a putative class before determining whether to certify the action as a

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class action.” “Instances in which interim class counsel is appointed are those in which

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overlapping, duplicative, or competing class suits are pending before a court, so that appointment

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of interim counsel is necessary to protect the interests of class members.” White v. TransUnion,

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LLC, 239 F.R.D. 681, 683 (C.D. Cal. 2006) (citing Manual for Complex Litigation (Fourth)

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§ 21.11 (2004)). Although Rule 23(g)(3) does not provide a standard for appointment of interim

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counsel, the court may consider the factors contained in Federal Rule of Civil Procedure 23(g)(1).

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Under that section, the court considers: “(i) the work counsel has done in identifying or

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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

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United States District Court
Northern District of California

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of the applicable law; and (iv) the resources that counsel will commit to representing the class.”

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Fed. R. Civ. Proc. 23(g)(1)(A). The court may also “consider any other matter pertinent to

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counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. Proc.

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23(g)(1)(B).

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Plaintiffs move to appoint their attorneys, Lowey Dannenberg, P.C. (“Lowey

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Dannenberg”), Berman Tabacco, and Wolf Haldenstein Adler Freeman & Herz LLP (“Wolf

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Haldenstein”), as interim class counsel. Dkt. No. 29. Each of these firms are experienced in class

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action litigation. See Declaration of Vincent Briganti (“Briganti Decl.”), Dkt. No. 29-1, at ¶¶ 4-

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17; Declaration of Todd Seaver (“Seaver Decl.”), Dkt. No. 29-2, at ¶¶ 5-19; Declaration of Janine

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Pollack (“Pollack Decl.”), Dkt. No. 29-3, at ¶¶ 5-13. For this case, these firms have conducted a

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detailed investigation and analysis of the design, manufacture, and operation of the Apple CPUs at

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issue, including engaging experts or attorneys with technical backgrounds. Briganti Decl. ¶ 2;

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Seaver Decl. ¶ 2; Pollack Decl. ¶ 3. The firms appear to have cooperated with one another in the

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process, and appear to be able and willing to work well together. See Briganti Decl. ¶ 18-19;

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Seaver Decl. ¶¶ 20-21; Pollack Decl. ¶¶ 14.

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Having reviewed the papers filed for this motion in the context of Rule 23, the Court finds
Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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that Lowey Dannenberg, Berman Tabacco, and Wolf Haldenstein are qualified to represent the

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putative class as co-lead interim class counsel.

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III.

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ORDER
The motion to consolidate the above-captioned cases and appoint interim class counsel

(Dkt. No. 29) is GRANTED. The Court hereby ORDERS that:
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The Clerk of the Court shall consolidate case numbers 5:18-cv-00147-EJD and

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5:18-cv-00271-EJD into one case such that the earliest-filed action, 5:18-cv-00147-EJD, is the

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lead case. All future filings shall be in 5:18-cv-00147-EJD and shall bear the caption: “In re

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Apple Processor Litigation.” All future related cases shall be automatically consolidated and
administratively closed after a judicial determination that such cases are related. Since the later

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United States District Court
Northern District of California

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actions are now subsumed by the first-filed action, the Clerk shall administratively close case

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number 5:18-cv-00271-EJD.

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2.

The court appoints Lowey Dannenberg, Berman Tabacco, and Wolf Haldenstein as

interim Co-Lead Counsel (“Co-Lead Counsel”) for the putative class.

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3.

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responsibilities:

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Duties and Powers of Co-Lead Counsel. Co-Lead Counsel shall have the following

a. To make, brief and argue motions, and to file papers and participate in
proceedings initiated by other parties;

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b. To initiate, conduct and defend discovery proceedings;

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c. To act as spokesperson at pretrial conferences;

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d. To negotiate with defense counsel with respect to settlement and other matters;

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e. To call meetings of counsel for Plaintiffs in this action;

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f. To make all work assignments to Plaintiffs’ counsel to facilitate the orderly and

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efficient prosecution of this litigation and to avoid duplicative or unproductive

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effort;

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g. To conduct trial and post-trial proceedings;
Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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h. To consult with and employ experts;

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i. To request that the Court approve settlements, if any, and fee awards;

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j. To allocate fees;

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k. To perform such other duties and to undertake such other responsibilities as it

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deems necessary or desirable in the prosecution of this litigation; and

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l. To coordinate and communicate with Defendant’s counsel with respect to
matters addressed in this paragraph and subparts.

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Northern District of California

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4.

No motion, request for discovery, or other pretrial proceedings shall be initiated or

filed by any plaintiff except through Co-Lead Counsel and no Plaintiff(s)’ counsel shall be
authorized to perform any work in the case without the express authorization of Co-Lead Counsel.
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Co-Lead Counsel shall have sole authority to communicate with Defendant’s

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counsel and the Court on behalf of any Plaintiff unless that authority is expressly delegated to

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other counsel. Defendant’s counsel may rely on all agreements made with Co-Lead Counsel, and

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such agreements shall be binding on all other Plaintiffs’ counsel.

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6.

Nothing herein shall limit the requirements on any plaintiff and their counsel set

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forth in FRCP Rule 23, or shall pertain to whether this action should be certified as a class action,

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whether any plaintiff is an adequate representative of any class that may be certified, or whether a

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plaintiff’s counsel is adequate counsel for any such class.

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7.

Nothing herein shall limit Defendant’s right to oppose the certification of any class

or the final appointment of any class representative or class counsel.
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The terms of this Order shall not prejudice or constitute a waiver by any party of

any claims in or defenses to this action.
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Within 21 days of the date this order is filed, Plaintiffs in In re Apple Processor

Litigation shall file a Consolidated Amended Class Action Complaint.

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Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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IT IS SO ORDERED.
Dated: April 27, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Case No.: 5:18-cv-00147-EJD
ORDER GRANTING MOTION TO CONSOLIDATE ACTIONS AND FOR APPOINTMENT
OF INTERIM CLASS COUNSEL
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